TONY AND TOM

A few weeks ago, Tony Andragna wrote a thoughtful reply to a post in which I both made fun of and defended Tom Delay's approach to the Constitution. One of the critical arguments that Tony makes is that:

[i]t's our job, too, to understand the constitution — how else are we to hold the political branches, and the judiciary through them, accountable on their oath to "defend the Constitution"?

This is a statement that I wholly agree with, and it seems to me that the idea of a written constitution is, in fact, bound up with the idea that citizens can have access to an outline of the conditions of government legitimacy. On this score, here are a few other (random) things that are worth keeping in mind:

• The claim cannot be that citizens should have access to the technical, professional rhetoric of constitutional law as it stands now. If you've listened to any of the oral arguments sessions -- during the 2000 election controversy, or on the afternoon of the campaign finance reform special session last week -- you're no doubt mystified by at least some of what was said there, and perhaps a great deal, unless, of course, you're professionally trained. The distance between constitutional law as practiced at the appellate level and constitutional barely (and abstractly) described as "an outline of the conditions of government legitimacy," as I put it, is never going to disappear. There are always calls for judges to try to make it disappear (see, for example, Joseph Goldstein's fine little book, The Intelligible Constitution), and perhaps they should, but don't hold your breath. The general march of professionalism and differentiation in modern life probably means that professional languages will be decoupled from ordinary life, and all the more so when lives and fortunes ride on successful professional performance. Plus, from the side of citizen education, it is simply unrealistic to believe that lots of people are really going to pay attention to the Supreme Court or to the work of courts in general when they deal with constitutional issues. Such attention is likely to be partial, shifting, and intermittent.


• That said, there are existing linking institutions between citizens and constitutional principles. Interest groups are one, and political parties are another. Both probably do more than college professors or lawyers speaking on Law Day (even when they're doing "dialogues on freedom," as Justice Kennedy has been doing recently). People pick up views on constitutional principles because they pay attention to the ACLU, the ACLJ, EPIC, and so on. And parties organize at least partly around constitutional claims. The best scholarly analysis of the parties on this score is a fantastic paper delivered at APSA in 2002, by UT Austin law professors Hersel Perry and Lucas Powe, called "The Two Parties' Constitutions." Here is the page where you can access the paper.


• The reason why parties and interest groups should be given credit for advancing constitutional claims (and not just doing "politics" or something that's somehow less exalted than the work of judges and lawyers in the courtroom) is that they are often advancing very powerful stories about what kind of people we are and what kind of political arrangement is appropriate for "our kind" of people. These stories are worth serious attention. They make claims on our allegiance. And both outside and inside the courtroom, these stories exert a powerful pull on the direction of constitutional law. When Scalia and Rhenquist defended corporations during the BCRA oral arguments, for example, they are picking up on and employing stories about the relationship between economic organization and national life, stories that definitely affect their votes in the case, however subtly. And I think that it is safe to say that the access to those stories is much easier than the access to the technical and professional distinctions that are the "surface" material of constitutional law. That, at least, gives non-lawyer types a hook on which to hang their criticisms of the product of appellate courts without their having to have law degrees!

On the stories line, read Rogers Smith's new book, Stories of Peoplehood. Good stuff.

9/11

Memorial ceremonies are an attempt to sustain conversation about the meaning of past events. They mark off boundaries between what should and should not be considered the meaning of those events with respect to narratives of self-understanding. The story that the memorial ceremony should serve to underline is that the U.S. was attacked in a spectacular and destructive fashion two years ago, with grave consequences for individuals with whom we share attachments of place, time, and citizenship.

There is no agreement on why, precisely, the attacks happened, as little as there is agreement on what the appropriate responses should be. There is little agreement on the appropriate frame of reference within which to understand the attacks (all terrorist activity? all political violence? all violence?). There is certainly little agreement on how the memory of the attacks should be employed: as a call to arms to protect against predictable attempts to curtail civil liberties? As a conversation-stopping reference aimed at regime critics?

Ceremonial conversations can be difficult, confusing, and upsetting in a pluralist political culture. It's not just a matter of post-sixties folks being rude, either. But it is necessary, I think, to develop a story that is positive -- worthy of attachment -- amidst the cacaphony. And perhaps the cacaphony itself will suffice: look how varied we are, and, consequently, look how much variation is destroyed when thousands among us are killed.

VERIZON

A while back, I sent Verizon an e-mail expressing my disgust with their trademark suit concerning the use of the phrase, "can you hear me now?" by union representatives. Just to follow up, here is the completely predictable response from the good folks at Verizon customer service:

Thank you for contacting Verizon Wireless through our website.

We are sorry that you feel this way about the lawsuit. However, "The company has spent millions of dollars in advertising and public relations to establish the phrase 'Can you hear me now' as a
symbol of our network's quality and our relentless efforts to continue to test and expand our coverage. We will take action against any company or other organization that infringes upon our trademark
and damages the valuable brand we have created."

As part of our Worry Free Guarantee you'll enjoy the largest, most advanced nationwide wireless network. Please write to us again through www.VerizonWireless.com if you have any further questions.

Sincerely,

XXXX

Verizon Wireless Customer Service

I've left the formatting as it appeared in the original e-mail.

I still do not understand how it is possible that trademark law allows for the threats of these kinds of bogus lawsuits. No, scratch that: I understand how it is possible in a causal sense, but I think that it is simply wrong nonetheless.

However you come down on the precise legal questions, it remains clear that these kinds of trademark suits are an attempt to place a prohibitve price on rhetorical moves that have developed through the history of human communication (criticism, irony, mimicry). These moves are threatening partly because they are defiant of corporate power, and that may be the primary fact here, but they are also threatening because of the theory of brand identity currently in play in both advertising agencies and company strategy meetings. That theory is that companies need to create a set of Pavlovian emotional reactions inside of consumers and potential consumers, a set of reactions of favorable affect toward the services that are sold by the company. The "delivery device," one might say, of those affects is a phrase or set of phrases that is part of a multi-million dollar advertising campaign. And, as Verizon's talking points above make clear, anything that changes or seeks to change or even to call into question those emotional reactions will be interpreted by the company as "damag[ing] the brand." The harm to language here is the idea that words are "delivery devices" that can be owned by particular companies. Words as a signal for the genuineness of a particular product are one thing (the old theory of trademark, if I understand it); words understood as delivery devices for positive affect are another thing altogether -- much more insidious, in part because the claimed reach of trademark law (the realm of behavior that can be priced out of the reach of ordinary folks and even ordinary folks in combination) is much greater.

Words are not simply delivery devices for positive affect. They are part of the structure of human communication. And in the contemporary world, human communication is rightly used for criticising corporate power -- and you should believe this even if you generally like corporations, as long as you admit that the use of power needs to be monitored or it will be abused. The attempt to close these byroads of communication should be met with absolute and unwaivering hostility. There are of course a lot of additional distinctions one might make in this area; it is clear that some time, place, and manner restrictions (as described in First Amendment cases) have justifications, for example, even if they can be described in the same way I have described these bogus trademark lawsuits here. I am not making a particular argument for fine legal distinctions. What I am saying, though, is that it must remain a clear and fixed point that bullying trademark suits that target certain historically-developed rhetorical moves are simply wrong and must be resisted.

See also my posts here and here.

CHADHA'S GHOST

If you've followed the FCC rule changes, you probably already know that Senator Dorgan (D-ND) has talked about introducing a "resolution of disapproval" concerning the June rule changes. Here's what WaPo says:

Before the full Senate vote, Sen. Byron L. Dorgan (D-N.D.), who opposes the new rules, plans to introduce a little-used "resolution of disapproval," a tool that Congress can use to overthrow agency regulations. If passed, it would wipe out all of the FCC's June rules.

Interestingly, a google search on Dorgan, "resolution of disapproval" and Chadha turns up nothing related to the present situation. Why is that interesting? Stay tuned (I'm off to class now). . .

CRITICS

Warning: slanted political fulminating ahead!

The "diminishing our resolve" line is weird. It's as if Republicans think that the war on terrorism is a big game of chicken, like that scene in Rebel Without a Cause or maybe even the highway tractor-trailer near disaster scene toward the beginning of Footloose. And if we only make sure that there are no voices of dissent, then we will steel our will and the enemy will blink first, and drive off the cliff and die in a flaming wreck. Therefore, in this line of argument, dissent from Democrats is harming the war on terrorism -- by diminishing our "resolve" and our ability to convince the enemy that we will not blink first -- and will increase the likelihood of failure and further carnage.

I don't want to put too fine a point on it, but to me it sounds an awful lot like these Republicans and their allies "hate our freedom."

It may very well be the case that a society with no internal divisions can display militaristic resolve at the right moments. So what? That is not the kind of society that we have, nor is it the kind that I, at least, want to live in.

It is certainly within the bounds of democratic politics for Republicans to accuse Democrats of undermining the war effort. And Democrats have an excellent response: we supported you, but you snowed us, and, besides, now you sound like propagandists rather than democratic political leaders.

MORE: Wait a minute. Chicken is about avoiding the flaming wreck at the last possible moment. So if I remember Rebel Without a Cause right, the game of chicken went awry because someone misjudged how late they could turn away and still avoid the cliff. Plus, the game of chicken works because you rely on the opponent's drive for self-preservation.

The main point here is that it's not a game of chicken, however you define the game. If we're going to be in this for the long haul -- and we should be -- then what will be necessary is less an attempt to shut down voices of dissent by claiming that they diminish our "resolve," and more an attempt to convince opponents that policies are right and reasonable. You can't do that by lying about costs of reconstruction, on the one hand, and by putting potentially fatal long-term fiscal pressures on your opponent's domestic priorites, on the other. That's a bullying tactic. And it should be no surprise if Democrats attempt to push back on the issues that they care about.

GOOD NAME, GOOD CONTENT

Sapere Aude. From students at Indiana University Law School at Indianapolis. They also note that C-Span has got audio from today's Supreme Court BCRA hearing. Check it out.

BCRA AND KIDS' BANK ACCOUNTS

Doesn't this strike you as a bit odd? Minors can still do all sorts of things to "participate in campaigns": they can donate their time to various party activities, for example. They can help bake pies for their local candidate's bake sale. They [can] sit at a computer and help compose mass mailings. They can stuff envelopes. They can hold up signs and bullhorns and tag along on mobilization drives. They can be props in fuzzy-wuzzy campaign advertising.

The equation of writing a check -- possibly even a large check, drawn on bank accounts that are supplied not by hard work and grit but by the earnings of mom and pop -- with "participation" pure and simple is an error, it seems to me, because ACLJ presupposes what BCRA (at least in public) is an attempt to change, that is, that writing checks is, as ACLJ puts it, "one of the most important aspects of the political process."

I also find it hard to believe the claim that ACLJ implies but leaves unstated: that minors can be described as having an independent political will. Minors are not allowed to vote. Unless they decide to move, minors will of course generally be subject to the decisions made by today's politicians, as in living with the debts and obligations created by current policies. And they are currently affected by the decisions by today's politicians. Nonetheless, the law does not presume them to have reached a point of independent political will-formation for the purposes of voting, so I find it hard to believe that they should be presumed to have reached the point of independent will-formation for the purposes of donating to political campaigns. Seems like a pretty easy call to me, especially given the declared interest of Congress in enacting BCRA to "close loopholes" in the campaign financing system. I haven't seen any figures here, but how often do you think mommy and daddy encourage minors to donate to the candidates of their choice, rather than to the candidates of their parents' choice?

WaPo reports that many found it odd that the justices devoted time at oral argument to this issue. I'm not so sure that it's odd, since it's pretty easy to argue that the provision is valid, contra the lower court, especially if the equation of campaign cash with speech is not clearly correct.

A minor issue in a serious subject, to be sure. For more BCRA action, go to SCOTUS blog, and, as always, to the indispensible Election Law Blog by Rick Hasen at Loyola (Los Angeles).

MORE: The penultimate paragraph above is misleading, to the extent that it implies that the SC is going to challenge the equation of campaign cash with speech and that it asked for arguments on that issue because of sympathy with the argument that campaign cash is not speech. Listening to the oral argument on this point last night, it seemed to me that the Justice Ginsburg (at least) was saying that congressional determinations here should stand, partly because some kind of line-drawing in this area is necessary, and the use of an existing distinction is a reasonable one, given the tie with voting rights. Sounds right to me. At any rate, rephrasing this question as one of defending the rights of children, as ACLJ does, does not pass the smile test, in my view. It probably is a boon to the folks at ACLJ, however, who have already used Sekulow's advocacy in their fundraising campaigns. And the ACLJ is in the interesting situation of being able to encourage reverence for the Supreme Court and thus being able to play up Sekulow's SC advocacy as a ceremonial event of historical significance -- even as the group freely engages in the court-bashing culture-war rhetoric so familiar from the right.

MONDAY'S (SHORT) READING LIST

Still getting into the semester groove, but let me note two articles that you should read if you haven't already: Amy Goldstein's Patriot Act piece in WaPo, which gives an overview of the secrecy of the proceedings related to the law. Secrecy is one reason why it's easy for defenders of the law to claim that the law is being mischaracterized by its critics, who are then accused of playing chicken little. And take a look also at this law.com article on last week's 11th circuit self-reversal on qualified immunity for police officers.