Georgetown Law Faculty Blog

New Article by Carlos Vázquez

Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution, a new article by Carlos Vázquez and to be published in the Harvard Law Review, has just been posted to SSRN.

Abstract:

 

[This article was being prepared for publication in the May 2008 issue of the Harvard Law Review when the Supreme Court handed down its decision in Medellín v. Texas on March 25. A revised version will appear in a later issue of the same journal.]

The case law concerning the judicial enforcement of treaties has long been regarded as a morass. Relying on the notion that treaties are contracts between nations generally enforceable only at the state-to-state level, primarily through diplomatic mechanisms, the lower courts have begun to require private parties invoking treaties to make a threshold showing of "judicial enforceability" over and above the showing that litigants must make to enforce statutes and the Constitution. This Article argues that such a showing is unnecessary because the Supremacy Clause supplements the state-to-state enforcement mechanisms provided by international law with a domestic mechanism: enforcement in the courts at the behest of individuals. Under the Supremacy Clause, the judicial enforcement of treaties is governed by the same doctrines that govern the judicial enforcement of the other two forms of federal law - federal statutes and the Constitution. The sole exception to the foregoing proposition concerns treaties that are "non-self-executing" in the sense contemplated by the Court in Foster v. Nielson.  This Article argues that the Constitution establishes a presumption that treaties are self-executing in this sense. The Court's subsequent decision in United States v. Percheman is best read to have recognized such a presumption when it wrote that a treaty is non-self-executing if it "stipulat[es] for a future legislative act."

In recent years, the U.S. treaty-makers have been attaching declarations of non-self-execution to the human rights treaties the United States has ratified. These declarations appear to be stipulations of the sort contemplated by the Court in Percheman, but their validity has been the subject of considerable controversy. This Article concludes that declarations clearly stipulating that the treaty obligations being assumed by the United States are subject to legislative implementation do validly render the treaties non-self-executing in the Foster/Percheman sense.

NYT story on standardizing prison religious literature

“We really wanted consistently available information for all religious groups to assure reliable teachings as determined by reliable subject experts.”  Because when you're a government agency conducting a purge of religious texts, what you really want is reliability of the few that remain.

Actually, "reliable" is a really good word here, because it makes obvious the basic problem with government evaluations of religious texts.  Where the approved religious texts "reliably" support the state's view of religious matters, everyone should worry.  Here's a slightly different view of reliability: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ...."

Holding Meiers and Bolton in Contempt

Congressional Democrats have a problem.  They have been stiffed by Harriet Meiers and Josh Bolton, who have refused to so much as  appear before Congress in response to subpoenas in conjunction with a congressional investigation of political interference with U.S. Attorneys.  Normally, when legally binding orders are disobeyed, the solution is to hold the disobedient party in contempt.  The trouble is that any criminal contempt citation must be presented to a grand jury and prosecuted by a U.S. Attorney.  One need hardly point out the irony, and it goes without saying that Bush is not about to let this happen.  So what should the Democrats do?

It's well established that Congress has inherent contempt power.  In theory, it could hold its own trial and use its own officers to lock up Meiers and Bolton in its own prison in the bowels of the Capitol.  As much as some of us would like to see this happen (it would make great TV!) it's not going to and probably shouldn't.  But Congress could use its inherent contempt power to get the matter into court, where many people think the controversy belongs. 

Here's what the Dems. should do:  They should hold a contempt trial in Congress and, assuming the evidence so warrants, find Bolton and Meiers in contempt.  Then, instead of trying to lock them up, they should send something labeled an "attachment order" to the banks holding Meiers' and Bolton's personal accounts.  The order should say that the banks are required to turn over, say, $1000 for each day until Meiers and Bolton agree to testify.  Either the banks will obey this order or they won't.  If they obey, Meiers and Bolton will either have to testify, lose all their money, or go into court to force the banks to stop the hemorrhaging of their accounts.  If the banks disobey, then Congress can sue the banks in court to enforce its order.  Either way, the mattere could then be settled by Article III judges.

Mike Seidman

Two New Articles

Here are abstracts of two new articles, together with links to SSRN:

Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and  the Crisis in Liberal Constitutional Theory"
     Harvard Journal of Law and Public Policy, Forthcoming
          Georgetown Law and Economics Research Paper No. 996599
          Georgetown Public Law Research Paper No. 996599

  Contact:  LOUIS MICHAEL SEIDMAN
              Georgetown University Law Center
    Email:  [email protected]
Auth-Page:  http://ssrn.com/author=39424

Full Text:  http://ssrn.com/abstract=996599

ABSTRACT: There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name.

In this brief essay, I do not take a strong stand on whether the constitutional case for gay rights has been made out. Instead, I attempt to explain why these opponents are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument and to speculate about why they nonetheless hold this view. While it is true that constitutional protection for gay rights depends upon contestable moral judgments, the failure to protect these rights also rests on such judgments. The argument that courts should not take a side in the ?culture war? is therefore a wash. Conservatives are nonetheless eager to discredit the argument for gay rights because the failure to do so would challenge core assumptions of standard constitutional theory.
______________________________
"Can Constitutionalism Be Leftist"
     Georgetown Law and Economics Research Paper No. 999574

  Contact:  LOUIS MICHAEL SEIDMAN
              Georgetown University Law Center
    Email:  [email protected]
Auth-Page:  http://ssrn.com/author=39424

Full Text:  http://ssrn.com/abstract=999574

ABSTRACT: In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet's effort to defend popular constitutionalism in his powerful and subtle book entitled "A Taking the Constitution Away from the Courts," I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist.
And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet's proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.
_________________________________________________

Mike Seidman

Balkin's Originalism

Underlying Principles, my very brief (11 pages) comment on Jack Balkin's Original Meaning and Abortion, is now up on SSRN.  Here is the abstract:

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.

In his contribution to the symposium, Ethan Lieb agrees that Balkin's move to originalism is both real and significant:

It certainly seems like the originalists are winning. Professor Jack Balkin — finding that he couldn't beat 'em — joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the ascendant and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet.

You can read Ethan's article, "The Perpetual Anxiety of Living Constitutionalism," here.

Interestingly, in his article, Ethan wrongly guesses that my reaction to Balkin will be similar to my reaction to Justice Scalia's originalism. Even more interestingly, he and commenters on PrawfsBlawg muse about why I seem to be going so easy on Jack here.  Except for the last 2 posts (at 4:44:13 & 1:01:37), it's an unusually perceptive exchange.

For those who have not seen my critique of Justice Scalia, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, I just uploaded the published version here.  Here is the abstract:

In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

Senator Kennedy's Bill to Prohibit Escalation of U.S. Forces in the Iraq Military Conflict

Marty Lederman              

Senator Kennedy is today introducing this legislation, the operative provision of which reads:

Prohibition.--Notwithstanding any other provision of law, no Federal funds may be obligated or expended by the United States government to increase the number of United States forces in Iraq above the number for such forces which existed as of January 9, 2007, without a specific authorization from Congress by law for such an increase.

Can property law reverse Cohen v. California? by Rebecca Tushnet

In other words, can the state create a property interest that will allow it to prosecute people for wearing the wrong sort of T-shirts?

I received an email from a columnist who is following up on this story, which concerns a Texas couple whose son was killed on duty in Iraq. The father searches for his son’s name and, when he finds it on anti-war sites, asks them to remove it. According to him, the majority comply. This, I submit, is a mistake on the sites’ part, albeit an understandable one. That history is painful does not make it untrue, and that the father opposes anti-war groups does not make his son’s death off-limits for discussion by such groups. Sites that complied with his understandable but overreaching request, I suspect, set the stage for the next development: there’s an Arizona site, CarryABigSticker, selling T-shirts with “Bush Lied” on the front and “They Died” on the back, along with the names of U.S. soldiers killed in Iraq through October 23.

The grieving father, Robert Vandertulip, asked the seller to remove his son’s name. The seller refused. According to the Star-Telegram, at the father’s urging, “Rep. Linda Harper-Brown, R-Irving, has pre-filed a bill for the upcoming Texas legislative session that would make it a misdemeanor to use the name or image of a current or former member of the military for a commercial purpose without permission…. Already, two other states have passed similar laws and two bills have been filed in Congress before.” (Later information in the article indicates that Texas already has a civil law covering use of name/image without permission, but that the proposed bill adds a criminal penalty.)

Rep. Harper-Brown thinks it’s not right to profit “on the death of a soldier who put his life on the line for us and our freedom.” What the family’s permission has to do with the rightness of profit is an open question – but the bigger issue is how detailed political speech has to be before we’re willing to recognize it as speech. I hope and trust that supporters of these laws would not want to apply them to books critical of the war, or a newspaper’s list and photos of the U.S. dead, even though those are, like the T-shirts, produced by profit-seeking entities.

Vandertulip invokes right of publicity in defense of his claims, arguing that “if he were to use shirts with Arnold Schwarzenegger, Paris Hilton or Robert DeNiro's name, [he’d] have to pay them for the use of it.” Schwarzenegger might sue – he has done so over bobblehead dolls – but whether he could win is another question, especially if the shirts had a political message. The question of when artistic license trumps publicity rights has been much-litigated, to very different results in different states. California is reasonably speech-protective, if the commercial art at issue is “transformative” and uses a celebrity image as a starting point for new meaning. Missouri, by contrast, hews pretty closely to the idea that trading on celebrity identity for commercial advantage is a violation of the right of publicity, regardless of what was added.

Rights of publicity, however, are based on a privacy-plus theory of unjust enrichment: that celebrities are responsible for the pecuniary value of their images and are thus entitled to reap whatever commercial advantage they bring. This doesn’t translate well to an equally expansive right for non-celebrities. CarryABigSticker isn’t exploiting any preexisting commercial value of the fallen soldiers’ names. The value of the shirt exists in listing multiple names and in adding the political message. Even Missouri’s right of publicity requires the plaintiff to show that his identity has preexisting commercial value, and here it really doesn’t. There is no “reaping where others have sown” to counterbalance against the T-shirt maker’s First Amendment rights to speak about the war.

The Star-Telegram article quotes some lawyers to the effect that the proposed bill is more likely to pass constitutional muster because it covers only commercial speech, implying that CarryABigSticker can be stopped even if political protests putting servicemembers’ names on signs can’t be banned. This spin is consistent with a standard prejudice against “promotional goods” like T-shirts, posters, and mugs, as compared to pamphlets, blogs, and newspapers, but it reflects a deep misunderstanding of what “commercial speech” means.  The speech that gets less protection is not speech that’s offered for a price (like the print version of the Star-Telegram) but speech that proposes a commercial transaction (like the ads in the Star-Telegram).  The “Bush Lied” T-shirts are not commercial speech. The proposed law may be constitutional – but if so, it’s constitutional because it doesn’t cover the T-shirts it’s supposed to silence.

According to the story, CarryABigSticker has stopped selling the T-shirts in two states with a version of this law, Louisiana and Oklahoma.  This is unfortunate but, again, understandable – it’s called a chilling effect for a reason.

Progressive Formalists?

There is a very interesting post by Brian Tamanaha on Balkinization, entitled, Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely).  Read the whole thing, but here is how it ends:

Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:

“My name is Brian Tamanaha and I am a legal formalist.”

(Yuck, that was not an easy statement to make—try it and see.)

What with Jack Balkin now advocating a version of original meaning originalism (I will be uploading a reply on SSRN to his Abortion and Original Meaning soon), this may be the harbinger of a very interesting trend among legal academics.

BTW, Brian has a new book out that I am looking forward to reading entitled, Law as a Means to an End: Threat to the Rule of Law.  Here is the publisher's description:

The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

The Ninth Amendment Means What it Says:

Whenever I blog about the Ninth Amendment, there are always respondents offering contrary interpretations. In response to my Rule of Law column, In RE: Life or Death, in Saturday's Wall Street Journal, several commenters disputed the relevance of the original meaning of Ninth Amendment to a federal regulation restricting access to experimental drugs to terminally ill patients. So did two contributors to National Review On-Line, Ed Whelan and Matthew Franck. While their interpretations are not unreasonable, I believe they do not line up with the available evidence. Ed Whelan relies on Tom McAffee's entry in The Heritage Guide to the Constitution.

Resolving this dispute over original meaning highlights the limitations of blogging and the need for long-form legal scholarship. The competing models of original meaning must be carefully defined and then comprehensively compared with the available evidence of original meaning to see which model or models is supported and which is undercut by the available evidence. There I do consider McAffee's interpretation and show how it is directly contradicted by the evidence.

Fortunately, I have done just this is a newly published article in the Texas Law Review, The Ninth Amendment: It Means What it Says.  You can download it here.  Here is the abstract:

Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwords, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.

I will add one cautionary note to avoid confusion. The article primarily concerns the original meaning of the text. It is not directly about judicial review. Unsurprisingly, none of the amendments in the Bill of Rights directly mentions judicial review, although the Ninth Amendment comes very close, given that it provides a rule of construction ("shall not be construed") that, presumably, is directed at all branches and levels of government, including the courts. If you are interested in the issue of judicial review you should look at my piece, The Original Meaning of the Judicial Power.

Judicial Deference & the Rights to Life and Health:

On Saturday, I had a Rule of Law column entitled In Re: Life or Death in the Wall Street Journal on the issue of judicial deference (available here for 7 days). It addresses the following question: When the fundamental rights of life and health are at stake, should judges defer to Congress or to "the people themselves"? This issue is raised in two pending lawsuits involving the decisions of patients and their state-licensed physicians, who are supported in their decisions by either the results of Phase I clinical trials for safety or by a substantial body of medical authority. Here is an excerpt describing the cases.

Much discussion of "judicial restraint" or deference overlooks a crucial question: deference to whom — the legislature or the individual? This fundamental question is posed by two potentially landmark cases.

In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government's motion for an en banc rehearing before all the members of the court. . . .

The natural rights to life and health are also at stake in the "partial birth abortion" cases that were argued to the Supreme Court in October. The Eighth and Ninth Circuit Courts of Appeals both held the federal ban on partial birth abortion was unconstitutional because it lacked an exception for the health of the mother. While this procedure is highly controversial when performed late term, the ban applied throughout the entire pregnancy. Moreover, the statute allows even late term use of the procedure to protect the woman's life (the very same right to life at issue in Abigail Alliance).

Guess which form of judicial deference I favor.