Geoffrey R. Stone's Blog, page 14

The Concerned Majority

To whom was President Obama speaking this week in his ground-breaking speech in Osawatomie, Kansas? I believe he was speaking directly to the Concerned Majority. At this moment in our nation's history, the vast majority of Americans are concerned. They are concerned about the dysfunction of their government, the shakiness of the economy, and the uncertainty of the future. They are concerned about jobs, education, medical care, and retirement. They are concerned perhaps most of all about their children. They are right to be concerned.



What the president was telling the majority of the American people was that he understands and shares their concerns and that government -- their government -- has a responsibility to take those concerns seriously.



He was telling them what they already know: that their government does not take their concerns seriously. As reflected in opinion poll after opinion poll, the American people hold Congress in disdain. They know that too many members of Congress are not interested in their concerns. They know that too many members of Congress are driven, not by the needs of the Concerned Majority, but by the demands of powerful corporations and the very wealthy. Of course, politicians have always been responsive to those who support their campaigns. But thanks to recent Supreme Court decisions invalidating campaign finance laws and runaway lobbying on behalf of the ultra-rich and their business interests, a small cohort of rich and powerful individuals and corporations now shape the American political system on a broad range of critical issues.



This is no accident. We now have an extraordinary maldistribution of wealth in the United States. It exceeds that of almost every other advanced nation in the world. The richest 1% of Americans today control 40% of our nation's wealth. This is a degree of concentrated power and privilege not seen in the United States since before the Great Depression.



This state of affairs corrodes our national spirit; undermines our capacity to revitalize our economy, create jobs, improve our educational system, and reduce our national debt; and corrupts our democracy. Moreover, this state of affairs came to pass in no small part because of the ever-increasing clout of the wealthy Americans, as we have seen our top tax rate for the highest earners decline from 90% under President Eisenhower, to 70% under President Nixon, to 50% under President Reagan, to 35% under President Bush. No wonder the majority of Americans are concerned.



We now face an age-old issue: for whom is our government? As Aristotle recognized more than 2,000 years ago, where the possession of political power is due to the possession of economic wealth... that is oligarchy, and when the unpropertied class have power, that is democracy." Or as Louis Brandeis explained almost a century ago, "We can have a democratic society or we can have great concentrated wealth in the hands of a few. We cannot have both." And as Franklin Roosevelt reminded the nation under circumstances not so different from today, "The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little."



What we need now in America is not a culture of political obstruction, not a culture of unrestrained greed, but a culture of shared responsibility. In Osawatomie, Kansas, that is what President Obama told Americans. He told them that it is time for them to take back their nation, that it is time for them to tell those who obstruct and obfuscate and filibuster and rant that "enough is enough." He reminded us that the very idea of America is about shared responsibility rather than rampant self-interest, and that it is time for the Concerned Majority to act decisively on their concerns.



This piece was initially published in the Chicago Tribune on December 11.

When the Government Lies

The Department of Justice has proposed federal regulations that would authorize the United States government to lie to the American people. This sounds bad, but in truth it's a big step forward. In the past, the government would simply have lied, without announcing its intention to do so. This was certainly true, for example, during the administrations of Lyndon Johnson (Gulf of Tonkin), Richard Nixon (Watergate) and Ronald Reagan (Iran-Contra). The Obama administration, reflecting an admirable commitment to transparency, wants everyone to know it will lie.



This is not as crazy as it seems. The issue concerns the Freedom of Information Act (FOIA), which requires the government to reveal certain information to the public upon request. The government does not have to reveal all information, however. FOIA permits the government to refuse to reveal certain types of confidential information. For example, §522(c) provides that the government need not disclose information if its disclosure would jeopardize an ongoing criminal investigation, reveal the identity of a confidential informant, or divulge classified information pertaining to foreign intelligence, counterintelligence or international terrorism.



When someone files a FOIA request for such information, the government is authorized under existing regulations to refuse the request by explaining that such information is exempt from disclosure. Recently, however, the Department of Justice concluded that this response does not adequately protect the government. The government's concern is that this response implies that the government has the information requested, a disclosure that might in itself cause some harm to the government.



To address this concern, the Department of Justice has proposed to amend the FOIA regulations to provide that, in such circumstances, the government will respond to such requests by saying that it has no such records, even if it does. In other words, it will lie.



For example, suppose a reporter wants to know whether the FBI is investigating a mayor for corruption. The reporter files a FOIA request asking for any records involving such an investigation. The government's concern is that if it responds by saying that such information is exempt from disclosure, the reporter will naturally infer that the government is in fact investigating the mayor, because otherwise the government would have said (honestly) that it has no record of any such investigation. By claiming the exemption, the government is tacitly admitting that it does have records of such an investigation. It's easy to understand why the government might legitimately not want the reporter (and thus the public and the mayor) to know about the ongoing investigation. If the government has to lie in order to prevent the investigation from being exposed, it's easy to see why the government might want to do so.



Of course, as a general proposition it is not good for the government to lie to its citizens. Must it do so in this situation in order to achieve its legitimate ends? Critics of the proposed rule change argue that it is unnecessary for the government to lie, because it can instead craft a response that elides the issue. In opposing the proposed authorization to lie, the American Civil Liberties Union, Citizens for Responsibility and Ethics in Government and OpenTheGovernment.org have suggested that the government can serve its legitimate interests simply by responding to such requests by saying, honestly, "you have requested records which, even if they exist, would not be subject to the disclosure requirements of FOIA." They argue that this response fully serves the government's interest because it not even implicitly admit that such records exist.



Let's see if this works. Suppose that, in the investigation of the mayor example, the reporter files a FOIA request seeking any FBI records relating to the mayor. The government responds, "you have requested records which, even if they exist, would not be subject to the disclosure requirements of FOIA." Ooops. There is a problem here. Recall that the government is authorized to withhold information in this situation only if the disclosure of the information "would jeopardize an ongoing criminal investigation." By invoking the exemption, even in the form suggested by the critics of the rule change, the government is necessarily admitting that there is "an ongoing criminal investigation," which is precisely what it doesn't want to disclose. The critics' solution doesn't work in this situation.



The Department of Justice's proposed amendment would allow the government in this situation to respond to the FOIA request by stating falsely that there are no records involving the mayor. Does this solve the government's problem? The theory is that this response will persuade people that there is no investigation of the mayor. This might work if people believed the government's response. But once the government says explicitly in its own regulations that it will lie about whether it has the requested records, the statement that it does not have the records has absolutely no credibility. In effect, then, the government gains little, if anything by honestly lying. Its mistake is not to lie, but to proclaim that it will lie, for its very honesty undermines the value of its deceit.



It would be best for the Department of Justice to go back to the drawing boards.

Justice Scalia, Originalism and the First Amendment

In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.



During the course of the conversation, Justice Scalia apparently brought up the Supreme Court's landmark 1964 decision in New York Times v. Sullivan. The situation in Sullivan was fairly straightforward. L.B. Sullivan, a Commissioner of Montgomery, Alabama, brought a civil libel action against several black clergymen and the New York Times because a fundraising ad run by the clergymen in the Times allegedly made several inaccurate statements in its description of a civil rights protest in Montgomery. The statements, if inaccurate, did not name Sullivan specifically and were relatively trivial in context. Although Sullivan could not prove that he had suffered any actual pecuniary damages as a result of the publication, the all-white Alabama jury awarded him damages of $500,000 (remember, this is in 1964).



When the case worked its way up to the Supreme Court of the United States, the Court unanimously held that it violated the First Amendment for the state to hold the New York Times and the clergymen liable. The Court held that even if the statements were factually inaccurate, it is unconstitutional to hold the speakers liable unless they acted with either knowledge of falsity or reckless disregard for the truth. Although conceding that false statements of fact do not themselves have any constitutional value, the Court recognized that to hold speakers liable for inadvertent false statements would seriously "chill" the willingness of citizens to engage in robust public debate. The general reaction to the decision in New York Times v. Sullivan at the time was captured by two seminal First Amendment thinkers -- Alexander Meiklejohn and Harry Kalven -- who proclaimed it an "occasion for dancing in the streets."



To fully understand the practical importance of New York Times v. Sullivan, it is important to consider the historical context. At the time of the decision, the South was in the throes of the civil rights movement. Southerners were deeply concerned about public opinion in the rest of country. The more the national media covered civil rights protests in the South, the more public opinion turned against those who were seeking to preserve segregation. Strategic lawsuits for libel brought by public officials against the national media for technical misstatements in news reports about civil rights protests were intended to deter the national media from covering the civil rights movement. This strategy was made especially effective because Southern juries were inclined to grant excessive damage awards against those who were embarrassing the South. In 1964, there were many similar actions pending against the New York Times in the South. The Supreme Court was acutely aware of this state of affairs, and that awareness no doubt led the justices to give the case the attention it deserved.



This brings me back to Justice Scalia. In his conversation during the Aspen Institute program, Justice Scalia made his familiar and obviously correct point that courts should not render decisions that in effect legislate. He then went on to say that New York Times Co. v. Sullivan was such a case. He explained that "the old libel law used to be [that] you're responsible, you say something false that harms somebody's reputation, we don't care if it was told to you by nine bishops, you are liable." In other words, if the statement was inaccurate, the speaker was liable, without regard to whether the speaker reasonably believed the statement to be true. Justice Scalia found the Court's change in the law illegitimate:

New York Times v. Sullivan just cast [the traditional common law of libel] aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, 'Yes, we're going to change our libel law.' But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, 'Yes, it used to be that ... George Washington could sue somebody that libeled him, but we don't think that's a good idea any more.'

In Justice Scalia's view, then, the critical question is whether the Framers of the First Amendment at the time understood the provision as embracing the rule of New York Times v. Sullivan. If not - and clearly they did not understand the Amendment in that way in 1790 - then that ends the matter. The Constitution has nothing to say about the issue in New York Times v. Sullivan and it's up to the people of New York to change their law, if they want to do so.



There are many things wrong with this argument, and with originalism generally, (see here), but I want to focus on one point in particular. Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law. But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.



It was precisely this fact that made a constitutional decision necessary. It's bad enough that Alabama wants to censor what its own citizens can read, but what the situation in New York Times v. Sullivan demonstrated was that the nation cannot constitutionally allow each state to censor speech on its own, because in a national marketplace of ideas censorship in one state effectively precludes the press from distributing news to people nationally. Although only a few hundred copies of that issue of the New York Times actually found their way into Alabama, that gave Alabama sufficient leverage to impose a huge penalty on the Times that was designed to deter it from writing negative stories about the South generally.



In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama. The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind.

Five Chiefs: A Review of Justice John Paul Stevens' New Supreme Court Memoir

Five Chiefs refers to the five Chief Justices Justice John Paul Stevens encountered during the course of his more than 60-year career as a law clerk, lawyer, federal court of appeals judge, and justice on the Supreme Court. Justice Stevens offers lively and engaging insights about each of the five chiefs with whom he worked: Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts. In the process, he discusses their times, judicial approaches and opinions, respective roles on the Court, personal and professional challenges, and their relations (good, bad, or indifferent) with their colleagues and the Court as an institution.



Five Chiefs is not a systematic or thematic history of the Supreme Court since the late 1940s, but a series of anecdotes, observations and musings that entertain, enlighten, and inform in an accessible and engaging manner.



Five Chiefs is very definitely a personal memoir, and throughout Justice Stevens adopts the rather startling device of referring to his fellow Justices by their first names -- Bill, Nino, John, Lewis, Ruth, Clarence, etc. -- rather than by their more formal titles. It took me a few pages to get used to this, but once I did it added to the sense of intimacy and, more importantly, to an understanding of how the Justices actually perceive and relate to one another -- as real people rather than as mysterious and largely impersonal lawgivers masked within black robes. (More on "black robes" in a moment.)



What do we learn from Five Chiefs? Here are just a few examples. During his year as a law clerk to Justice Wiley Rutledge during the Court's 1947 term, a young John Paul Stevens had the opportunity to observe his future colleague, Thurgood Marshall, argue an important Equal Protection case to the Court. He describes a lively exchange between "Thurgood" and "Felix (Frankfurter)" that left him with the sense that Marshall was "a remarkably talented advocate."



As for Chief Justice Vinson, Stevens, like most of the other law clerks that year, "was not an especial admirer of the chief." As "a country lawyer from a small town in Kentucky," Vinson seemed "a little overwhelmed" by his much more experienced colleagues. Indeed, the young Stevens thought that Vinson "may have a little difficulty following some of the more esoteric arguments advanced by counsel." Nonetheless, Vinson apparently "had confidence in his ability to identify which outcome of a case would, in his judgment, best serve the public interest."



Brown v. Board of Education, "one of the greatest achievements in the history of the Court," was largely the work of Vinson's successor, Chief Justice Earl Warren. In Five Chiefs, Justice Stevens is especially interested in the role that what we would today call "originalism" (i.e., looking to the original intent of the Framers as definitive) played in the decision.



After Brown was first argued to the Court, the year before Warren's appointment, the Court delayed the decision and "ordered the parties to address several questions about the history of the drafting and ratification of the Fourteenth Amendment." In Justice Stevens' view:

"This was a mistake. The equal protection clause of the Fourteenth Amendment sets forth a clear principle: states may not 'deny to any person ... the equal protection of the laws.' The circumstances of its ratification cannot transform that command of equality into a license for discrimination."

When the Court finally issued its unanimous opinion in the spring of 1954, "it was," Stevens declares, "dead right." More specifically, though, he enthusiastically applauds Earl Warren for summarily rejecting "the historical argument." Stating a condemnation of "originalism" that echoes throughout Five Chiefs, Justice Stevens insists that "the fact that supporters of the Fourteenth Amendment may not have intended to put an end to segregated grammar school education... does not provide an acceptable reason for limiting the scope of the fundamental principle of equality embodied in the equal protection clause."



John Paul Stevens was appointed to the Supreme Court by President Gerald Ford during the tenure of Chief Justice Burger, who succeeded Warren in 1969. Justice Stevens lauds Burger's "signal contribution to American law: improvements to the administration of justice within and beyond the Court." He also especially admires "Burger's opinion for the Court in United States v. Nixon (1974)," which "required President Nixon to produce the tape recordings that eventually led to his resignation." Because all four of Nixon's appointees joined Burger's unanimous opinion, the decision "powerfully illustrated the integrity and independence of the Court" and "may well have done more to inspire the confidence in the work of judges that is the true backbone of the rule of law than any other decision in the history of the Court."



With respect to another landmark decision of the Burger Court that predated his arrival -- Roe v. Wade (1973) -- Justice Stevens notes: "As the seven-to-two vote in that case illustrates, the basic issue was not as controversial in 1973 as it became in later years. Indeed, in 1975 when the Senate Committee on the Judiciary held hearings on my nomination to the Court, no senator asked me a single question about abortion." On the merits, Justice Stevens concludes that Roe was rightly decided, though he prefers Justice Potter Stewart's argument in a concurring opinion, that the law prohibiting abortion violated "the 'liberty' that is protected by the Due Process Clause," to Justice Harry Blackmun's argument for the majority which placed too "much emphasis on a so-called right of privacy protected by 'penumbras' of the Bill of Rights."



Although Justice Stevens generally admired William Rehnquist, he at times found him to be too pompous and self-important. Notably, for example, "Bill... affixed four gold stripes on each sleeve of his robe," clearly proclaiming that "he held a unique position among the nine of us." As Justice Stevens tells the story:

"[Rehnquist's] decision to embellish his robes with those stripes came as a surprise to the rest of us. He had previously described his favorable impression of the colorful robes worn by some judges at an international conference that he had attended and suggested that we consider a change in our attire." While the other justices immediately and uniformly gave Rehnquist a negative response, "with respect to his own robes, he went right ahead."

Despite Chief Justice Rehnquist's influence on the Court, Stevens concludes that "Thurgood's retirement may well have been the most significant judicial event of Bill Rehnquist's tenure as chief justice" because of "the changes in the Court's jurisprudence that are attributable to his successor, Clarence Thomas." A stream of important "decisions made by five-to-four votes in which Clarence was a member of the majority are evidence of that importance because I am convinced that Thurgood would have voted with the four dissenters," one of whom was Justice Stevens, "in most, if not all, of them. While Thurgood's jurisprudence reflected an understanding that the Constitution was drafted 'to form a more perfect Union' -- and thus to accommodate unforeseen changes in society -- Justice Thomas' repeated emphasis on historical analysis seems to assume that we should view the Union as perfect at the beginning and subject to improvement only by following the cumbersome process of amending the Constitution." Justice Stevens clearly has little use for that position.



Beyond that, though, he was appalled by Chief Justice Rehnquist's opinions on questions such as suing the government and state rights, i.e., sovereign immunity and the Eleventh Amendment: "Like the gold stripes on his robes, Chief Justice Rehnquist's," (note that here he is not "Bill"), "writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic. I am hopeful that his writings in this area will not be long remembered."



Justice Stevens was also quite put off by Rehnquist's "remarkably consistent pattern of voting to uphold death sentences," sometimes in opinions that Stevens regards as "abysmal." For Justice Stevens, "the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'"



Having heard all of John Roberts' many "superb" arguments to the Court as an advocate, Justice Stevens thought him "the obvious first choice to fill any vacancy that might occur on the Court while George W. Bush was president." And, indeed, Stevens was soon confirmed in his view of Chief Justice Roberts: "The first decision that he made in his capacity as chief justice of the United States was unquestionably correct and consistent with his role as the first among equals: he decided not to decorate his robes with gold stripes." Beyond that, however, Stevens found little to like about much of Chief Justice Roberts' jurisprudence. In case after case, on issues such as the constitutionality of gun control laws, the constitutionality of efforts to promote racial integration, the constitutionality of various aspects of the death penalty, the constitutionality of abortion regulations, and the constitutionality of campaign finance regulations, Stevens found himself in strong dissent from majority opinions either authored or joined by Chief Justice Roberts.



Nonetheless, Justice Stevens remains optimistic, albeit with a touch of irony. In criticizing an important Eighth Amendment cruel and unusual punishment decision, Harmelin v. Michigan (1991), in which Stevens dissented, he observes that most of the Justices who joined the majority were relatively new to the Court, and that the Justices they had replaced would all probably have joined him in dissent (which would have made the dissent the majority). He then adds: "Just as the Eighth Amendment itself responds to evolving standards of decency in a maturing society," (clearly a dig at the majority, which refused to accept this proposition), "so also may the views of individual justices become more civilized after twenty years of service on the Court." As a Justice who himself evolved somewhat during the course of his career, it's difficult to tell whether this observation is meant to be tongue-in-cheek or autobiographical. Justice Stevens does not say.



As these insights and anecdotes illustrate, Five Chiefs is inside baseball at its best. Justice Stevens brings to life the secret world inside the Supreme Court in a way that is illuminating, instructive and satisfying. We surely don't know everything, but we definitely know more than we did before. Anyone interested in the Supreme Court should read it.



This review was first published in the Washington Independent Review of Books (October 3, 2011)

Our Progressive Constitution

Today is Constitution Day. It is a day to reflect, at least for a moment, on the American Constitution and how it has helped to shape our nation over more than two centuries. In simplest form, of course, the Constitution sets forth the rules of governance. It stipulates that there shall be one President, two Houses of Congress, the powers of the national government, limitations on the powers of the state and national governments, the minimum age of the President (35) and so on. In this simple sense, the Constitution establishes the rules of the game.



More fundamentally, however, the Constitution has served as the vehicle through which generations of Americans have made and remade their nation. When one steps back, as one should on Constitution Day, and considers the most profound changes in our society since 1789, it is easy to see that, by any reasonable measure, the Constitution has served in the long run as a progressive document that has enabled us to protect the rights, liberties and well-being of our people.



The original Constitution did not even have a Bill of Rights. That was added soon after ratification of the Constitution to ensure that the new national government would not abridge the freedom of speech or prohibit the free exercise of religion; that it would not engage in unreasonable searches and seizures or inflict cruel and unusual punishment; that it would not deprive people of life, liberty or property without due process of law or convict people of crimes without honoring their rights to a jury trial, to the assistance of counsel, and to present their own witnesses and to confront the witnesses against them.



Later, after a bloody Civil War, the American people again amended the Constitution, this time to forbid slavery; to guarantee that no State would deny any person due process of law, the equal protection of the laws, or the privileges or immunities of citizenship; and to grant blacks the right to vote.



Since then, the Constitution has been further amended to authorize the federal income tax so the national government would have sufficient resources to meet the demands of a changing society; to grant women the right to vote; to provide for the popular election of senators; to outlaw the poll tax; and to grant the right to vote to all persons over the age of eighteen.



Almost without exception, our constitutional amendments have been progressive in nature, expanding both individual freedoms and the opportunity for individual Americans to participate more fully in the political and economic life of the nation.



Even apart from the process of amendment, the Constitution has had sufficient flexibility in its often open-ended language to enable government to pursue important social and economic policies that might never have been envisioned by the framers. As understood by the American people, by our elected officials and by our Supreme Court, the Constitution has enabled the national government to enact laws that helped us through the devastation of the Great Depression; prohibited private discrimination on the basis of race, religion, gender, national origin and disability; promoted workplace safety and the environment; and provided a critical safety net for the aged, the infirm and the needy.



All of these laws, and many besides, were opposed by political conservatives who invoked a crabbed view of the Constitution to argue that the national government had no authority to "promote the general Welfare," but in the long run those arguments have never carried the day. If one takes the long view, it is clear that it was the progressive vision of the American Constitution, embraced by citizens, legislators, presidents and judges, that ultimately prevailed.



Finally, the Supreme Court has construed the individual liberties guaranteed by the Constitution in a way that preserves their strength and vitality in an always-changing world. The Court has held, for example, that wiretapping, which was unknown to the framers, is a "search" that must be undertaken "reasonably" if it is to be constitutional; that the guarantee of "equal protection of the laws" protects not only African Americans, but also women (even though conservatives once argued -- and some still argue -- that it does not) that persons accused of crime who cannot afford their own counsel have a constitutional right to have the government provide one for their defense; that the government cannot constitutionally ban speech merely because it offends others; and that the government cannot constitutionally endorse or promote particular religious beliefs.



Of course, the history of the American Constitution has been not exclusively progressive. The original Constitution acknowledged and did not forbid slavery; the Supreme Court upheld the constitutionality of racial segregation and held unconstitutional all sorts of progressive legislation in the early years of the twentieth century; the Constitution was amended as a result of the temperance movement to create Prohibition; the Supreme Court upheld the constitutionality of the internment of Americans of Japanese descent during World War II; and the Supreme Court held that citizens could be jailed for their criticisms of the government..



The interesting thing, though, is that conservative emendations and interpretations of the Constitution seem not to last. In the long run, the Constitution, in the hands of the American people, our elected representatives, and the Supreme Court, usually works itself back to more progressive positions. Of course, there is no guarantee that this will continue. The generally progressive drift of our Constitution, our laws, and our society over more than two centuries was surely not inevitable. But the design and intent of our Constitution made this progress possible, and it is that that we should celebrate on Constitution Day.

The Framers' Constitution

I co-authored this piece with Professor William Marshall of the North Carolina School of Law. It was also published online today by the American Constitution Society.



For the past forty years, political conservatives have effectively framed the national debate over constitutional interpretation. According to the conservatives' narrative, their approach to constitutional interpretation adheres to the true meaning of the Constitution and to the Rule of Law, whereas "liberal" jurisprudence is concerned only with achieving specific desired outcomes, without regard to the text, history or meaning of the Constitution.

The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated. Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has veered sharply to the right as conservative jurists have become ever bolder in their pursuit of politically conservative results. Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology.

The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented "liberal" jurisprudence. In fact, most of the decisions the conservatives deride are premised on sound principles of constitutional interpretation and on the Framers' own understanding of our Constitution and of the essential role of courts in our constitutional system. But although progressives actually hold the high ground in this debate, we have generally failed in public discourse either to unmask the realities of conservative judicial methodology or to explain the logic, legitimacy and coherence of our understanding of constitutional interpretation. Unless we take up this challenge, we will continue to lose in the courts, in nomination battles, in the legislatures, and at the polls. It is time for ACS and its members to take up this challenge.

In this essay, we set the record straight about conservative constitutional jurisprudence and set forth a principled approach to constitutional interpretation that reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations.



The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.

The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise of religion," "equal protection of the laws," "privileges and immunities of citizenship," "cruel and unusual punishment." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce among the several states" and may enforce the Fourteenth Amendment "by appropriate legislation," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."

These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "we must never forget it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."

This understanding reflects an approach that is true to what we might call "The Framers' Constitution." It recognizes that the Constitution sets forth broad principles and that a central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.

American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of "search" in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation's "land and naval Forces" was eventually seen as authorizing an air force. The guarantee of "equal protection of the laws" in the Fourteenth Amendment was understood in later decades as prohibiting discrimination not only against African-Americans but against women and gays and lesbians as well. "Commerce among the several states" came to be seen differently as the nation's economy became more complex and integrated across state lines, and the concept of "liberty" came to encompass not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one's children.



But how should we give concrete meaning to the open-textured provisions of the Constitution? On the one hand, judges must have sufficient interpretative authority to ensure that constitutional rights and limitation endure over time. On the other hand, judges must not have such broad interpretative discretion that they can freely substitute their own personal, political, religious, social, and economics values for those of the People. The best solution, which is grounded in the vision of the Framers across the centuries, has a long and honorable tradition in American constitutional law. It has two essential elements. First, at the very core of The Framers' Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against arbitrariness or unreasonableness, the starting point must be a presumption of judicial restraint. This is an essential tenet of any theory of principled constitutionalism.

Second, respect for The Framers' Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.

The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1790 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored "the legal check" that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that "independent tribunals of justice will consider themselves . . . the guardians of those rights [and] will be naturally led to resist every encroachment" upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could "be preserved in practice no other way than through the medium of courts of justice," which must "guard the constitution and the rights of individuals from the effects of those ill humours which...sometimes disseminate among the people."



This understanding of The Framers' Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and 1940s. For example, in the Court's famous footnote 4 in Carolene Products, decided more than seventy years ago, the Court suggested that there are some circumstances in which there may be "narrower scope" for the usual "presumption of constitutionality." Specifically, the Court noted that "more exacting judicial scrutiny" may be appropriate when legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" and when laws disadvantage groups like "religious or racial minorities," because "prejudice" against such groups "tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect" us against injustice. Put simply, the Court recognized in Carolene Products that courts should not be so quick to defer to the outcomes of the political process when there is good reason to believe that that process itself may have been tainted.

Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis. In such circumstances, it is necessary and proper for courts--Madison's "independent tribunals of justice"--to exercise a "more exacting judicial scrutiny" in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.

Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply The Framers' Constitution. These decisions ended de jure racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women's reproductive choices, and upheld the right of "enemy combatants" to due process of law, to cite just a very few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both proper and necessary.



For the past half-century, however, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the late 1960s, for example, conservatives like Richard Nixon and Strom Thurmond condemned what they derided as "judicial activism" and demanded the appointment of judges and justices committed to judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.

Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the modern theory of "originalism." First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, their version of originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates an activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the Equal Protection Clause.

Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of "freedom of speech" or "due process of law" or "regulate Commerce...among the several States" or "privileges or immunities" or "equal protection of the laws," it is difficult if not impossible to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.

There is no evidence, for example, for the claims advanced by originalists that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment guaranteed corporations a constitutional right to spend unlimited amounts of money to dominate the election of public officials. Both of these claims, however, are central to today's conservative constitutional agenda.

The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. As Justice Louis Brandeis observed more than 80 years ago, the Framers believed "courage to be the secret of liberty." They were not timid men. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution. Indeed, the notion that any particular moment's understanding of the meaning of the Constitution's provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.

For these reasons, the conservative doctrine of "originalism" has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them--as a set of general principles and aspirations, rather than as a collection of specific and short-sighted "rules." To be true to The Framers' Constitution, we must strive faithfully to implement the Framers' often far-sighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.

Moreover, the values, concerns and purposes of the Framers must be understood in light of the inescapable reality that the American people have repeatedly amended the Constitution over the past two centuries to make it more inclusive and more progressive. By outlawing slavery in the 13th Amendment, guaranteeing due process, equality, and privileges and immunities in the 14th Amendment, and consistently expanding the franchise in the 15th, 19th, 24th, and 26th Amendments, the people of the United States have themselves made clear time and again that our Constitution is a fundamentally progressive document. This history must guide judges and justices in their interpretation and implementation of the Constitution.

Instead, we have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, gun control laws, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, have hijacked the power of judicial review. Conservative justices today exercise that authority in a highly selective and politicized manner that cannot credibly be explained or justified by any principled theory of constitutional interpretation. Indeed, despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.



In the end, of course, constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times. Above all, it must be grounded in an understanding of the judiciary's unique strengths and weaknesses and in a proper appreciation of the most fundamental reasons for judicial review. Courts must have the authority to invalidate acts of the elected branches of government, not so they can pursue conservative or liberal agendas, but so they can serve as an essential check on the dangers of majoritarian dysfunction. This understanding of constitutional was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law.

It is time now for a new era of principled constitutionalism. It is time to return to The Framers' Constitution.

The Debt Ceiling Crisis: Approaching the Witching Hour

As the clock runs down toward the witching hour on August 2, I see three possible solutions to the crisis. First, the Republicans and Democrats in Congress can agree on a compromise plan that raises the debt ceiling for a reasonable period of time and deals with at least some of the issues of spending cuts and new revenues that have thus far so furiously divided the parties. I suppose this is still possible, but it seems unlikely.



Second, the Republicans and Democrats in Congress can agree to increase the debt ceiling for a reasonable period of time without addressing any of the bitterly divisive spending and revenue issues. This is pretty much what has always happened in the past. Congress has separated the debt ceiling issue from the more difficult and more contentious issues of taxing and spending. At this point, that might be the best solution, but it too seems unlikely because of Republican intransigence.



Third, Congress can remain paralyzed and simply do nothing. If they follow that approach, which now seems likely, the current debt ceiling will remain in place and as of August 2 the government will not be able to borrow any more money and thus will no longer be able to pay its bills -- for the first time in American history. What happens then?



The most obvious outcome is that for as long as that state of affairs exists, the president will have to decide which bills to pay and which to ignore. In other words, the president would have to decide whether to suspend Medicare payments, cancel Social Security payments, withhold the salaries of government employees (including the military), default on our debt obligations, etc. With each passing day, the spending cuts would need to be deeper and deeper.



Some people have argued that, even if Congress does not raise the debt ceiling, these cuts and non-payments don't have to happen, because the president can ignore Congress' action and just keep on borrowing to pay the nation's bills. Some have argued that a little-noticed provision in section 4 of the Fourteenth Amendment authorizes precisely this course of action. This provision states: "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."



This provision of the Fourteenth Amendment, which was enacted shortly after the Civil War, was intended, in part, to prevent the former Confederate states, when they resumed their positions in Congress, from attempting to cause the federal government to renege on the debts the Union incurred to put down the "rebellion." A careful reading of the text, however, reveals that the provision goes well beyond that. It does not say that the validity of the public debt incurred to put down the rebellion "shall not be questioned," but that the public debt more generally "shall not be questioned," citing the Civil War issue as merely an illustration.



So, what is the relevance of section 4 to the current crisis? What it seems to say is that the government must honor all public debt "authorized by law." This suggests that non-payment of our existing debt is not a constitutionally-permissible option for the president. As a result, in making spending cuts beginning on August 2, the President apparently cannot constitutionally decide not to pay our outstanding debt. Rather, all of the cuts must come from ongoing expenditures. This would, of course, dramatically magnify the impact of the crisis on government programs, services and operations.



Faced with this dilemma, what is the president to do? There are those who argue that this entire controversy is much ado about nothing, because the President can simply "raise the debt ceiling on his own." They argue that, in light of "the president's role as the ultimate guardian of the constitutional order," President Obama should disregard Congress' failure to authorize additional debt and assume the authority to do the "right thing" for the nation. As Justice Robert Jackson observed more than half a century ago, "the Constitution is not a suicide pact."



This is a dangerous argument. Its proponents point to the one dramatic instance in American history in which a president openly exercised this extraconstitutional authority. (President Bush II, by the way, attempted to exercise this authority secretly when he authorized the use of torture and the NSA surveillance program in violation of federal law.) But that earlier instance, involving President Abraham Lincoln, was quite a different situation. It arose at the very outset of the Civil War, when Union troops needed to get to the nation's capital to protect it from possible Confederate attack.



Confederate sympathizers in Maryland were tearing up the railroad tracks in order to prevent the Union troops from moving south to the capital. Because the local authorities, who were sympathetic to the Confederates, did nothing to prevent this interference, the only way to end the obstruction was for Lincoln to suspend the writ of habeas corpus and authorize the military to arrest and detain those who were preventing the army from reaching Washington.



The problem was that the Constitution authorizes only Congress to suspend the writ of habeas corpus. But Congress was not in session, and in 1861 it could not be convened quickly. Faced with this crisis, historians and legal scholars agree that Lincoln was justified in doing what he did, even though it was not expressly authorized by the Constitution.



Even if one thinks that the danger to the national interest today is comparable to that facing Lincoln in 1861, the situations are importantly different. Today, Congress is in session and is refusing the raise the debt ceiling, even though it could easily do so. Because the Republicans in Congress refuse to do this, President Obama (unlike Lincoln) is faced with a "decision" by Congress. It may be a reckless and irresponsible decision, but it is a decision and it is much harder to justify ignoring a decision than to act in a situation where no congressional action was possible.



Having said this, I think the president is likely to (and should) take control of the situation and do the "right thing" for the nation, even though he has no express constitutional authority to do so. But to suggest that this crisis is much ado about nothing because the president can avoid a calamity by extra-constitutional means, and by doing something that no other president in American history has been called upon to do, is absolutely no excuse for the conduct of the Republicans in bringing us to this point.



Moreover, even if the president does this, there may be serious repercussions. First, the Republicans in the House may well attempt to impeach the president for acting "unconstitutionally." Even though this would go nowhere in the Senate, the very act of impeachment would exacerbate the dire state of politics in the United States today. Second, there will almost inevitably be litigation challenging the constitutionality of the president's action. (Note that in 1861, Chief Justice Taney held Lincoln's suspension of the writ of habeas corpus in Maryland unconstitutional and ordered him to lift the suspension. Lincoln ignored the Taney's ruling.). Is that a crisis we want to repeat?



The plain and simple reality is that unless the Republicans agree to raise the debt ceiling in the next two days, they will throw the nation into a constitutional and economic nightmare. If nothing else, they should have enough sense and self-discipline to know that they will pay dearly for this with the American people.

By Any Means Possible: Republican Threats and the Debt Ceiling

A threat is an expression of intention to inflict harm on others unless the target of the threat agrees to do what the person making the threat demands. A threat uses coercion rather than persuasion to effect change. As a general rule, democratic governments do not negotiate with those who threaten their people with harm. The reason is simple: Democracies should not make public policy in response to threats, and those who threaten should not be rewarded for threatening harm to the nation.



This is the dilemma facing President Obama in the current debt ceiling crisis. The debt ceiling has never before been used as a leverage point for partisan political demands. As Mr. Obama observed in his address to the nation on July 25, presidents from Eisenhower to Bush II have regularly raised the debt ceiling without controversy and without facing anything like the current Republican intransigence.



But what makes that intransigence an immoral "threat" rather than an ordinary political disagreement? The answer is that the current controversy really has nothing to do with the debt ceiling. Rather, Republicans who do not have the votes to enact their preferred policies into law are threatening to throw the nation into economic chaos by refusing to increase the debt ceiling unless the President accedes to their demands. By threatening to wreak havoc with the national interest, they are attempting to coerce rather than persuade the nation into doing what they want.



The key point is that this controversy is not about the debt ceiling itself. All the issues about deficits and spending and taxes can be hashed out entirely apart from the debt ceiling issue. But the Republicans are exploiting the need to increase the debt limit in order to hold the nation itself hostage to their demands. It would be no different if the Republicans threatened not to raise the debt limit unless the President agreed to nominate Grover Norquist to the Supreme Court or to repeal of the Civil Rights Act or invade Pakistan or pull out of the United Nations. This is not democratic governance. This is not even political obstructionism. It is blackmail, plain and simple, where the threatened victim is the nation itself.



Of course, the President could temporarily avert disaster by giving in to those who are threatening to bring about chaos. But if he does so, he will invite similarly destructive conduct in the future. As the President warned in his speech to the nation, if he gives in to the Republican demands now, "in six months they'll do this again."



The Republicans have every right to try to get their preferred policies enacted into law and they have every right to refuse to raise the debt ceiling (though that would be calamitously stupid). But what they cannot morally do is to attempt to get their preferred policies enacted into law by threatening not to raise the debt ceiling. It is the connection between the two that makes their strategy immoral.



In this sense, their conduct is very much like blackmail. Suppose X says to Y, "If you don't give me $1,000 I will tell your boss that you voted for Obama." X has every right to tell the boss, but it is unlawful for him to threaten to tell the boss in order to coerce Y to give him the $1,000. That is what the Republicans are doing here.



By threatening to destroy the economy if they don't get their way, those Republicans who are pursuing this course may be honoring their pledge not to raise taxes, but they are also dishonoring the very spirit of their oath to uphold the Constitution of the United States.



Editor's Note: An earlier version of this post used the word "terrorism" as metaphor, contrary to our policy of avoiding such characterizations. The author has therefore revised the post to read as it does now.

Negotiating with Terrorists

As a general rule, democratic governments do not negotiate with terrorists. The reason is simple: Democracies should not make public policy in response to threats, and terrorists should not be rewarded for threatening harm to the nation. As Peter Neuman, the Director of the Center for Defense Studies at King's College, London, has explained, negotiating with terrorists sets "a dangerous precedent" and encourages similar conduct in the future.



This is the dilemma facing President Obama in the current debt ceiling crisis. The debt ceiling has never before been used as a leverage point for partisan political demands. As Mr. Obama observed in his address to the nation on July 25, presidents from Eisenhower to Bush II have regularly raised the debt ceiling without controversy and without facing anything like the current Republican intransigence.



But what makes that intransigence "terrorism" rather than ordinary political disagreement? The answer is that the current controversy really has nothing to do with the debt ceiling. Rather, Republicans who do not have the votes to enact their preferred policies into law are threatening to throw the nation into economic chaos by refusing to increase the debt ceiling unless the President accedes to their demands. By threatening to wreak havoc with the national interest, they are attempting to terrorize rather than persuade the nation into doing what they want.



The key point is that this controversy is not about the debt ceiling itself. All the issues about deficits and spending and taxes can be hashed out entirely apart from the debt ceiling issue. But the Republicans are exploiting the need to increase the debt limit in order to hold the nation itself hostage to their demands. It would be no different if the Republicans threatened not to raise the debt limit unless the President agreed to nominate Grover Nyquist to the Supreme Court or to repeal of the Civil Rights Act or invade Pakistan or pull out of the United Nations. This is not democratic governance. This is not even political obstructionism. It is blackmail, plain and simple, where the threatened victim is the nation itself.



Of course, the President could temporarily avert disaster by giving in to the terrorists. But if he does so, he will invite similarly destructive conduct in the future. As the President warned in his speech to the nation, if he gives in to the Republican demands now, "in six months they'll do this again."



Those Republicans who are pursuing this course may be honoring their pledge not to raise taxes, but they are also dishonoring the very spirit of their oath to uphold the Constitution of the United States.

President Obama and Government Secrecy

As a longtime supporter and colleague of Barack Obama at the University of Chicago, as well as an informal adviser to his 2008 campaign, I had high hopes that he would restore the balance between government secrecy and government transparency that had been lost under George W. Bush, and that he would follow through on his promise, as a candidate, to promote openness and public accountability in government policy making.



Read more at nytimes.com.