9066

Eric Muller notes that today is the 62nd anniversary of Executive Order 9066, the order that set in motion the internment of 100,000 individuals on the basis of Japanese ancestry. At the internment memorial in Washington DC (just northwest of the capitol building), you can read the words above right.

MORE: It's more appropriate to call attention to the people affected by internment than the official means of remembering it, but here are two more pictures I took of the memorial the last time I was in DC. It's at a relatively busy intersection, but the memorial itself opens up a space for quiet reflection.

CAT-O-9TH-A-TAILS

The folks at Southern Appeal have been having a debate over the ninth Amendment, initial kick-off in comments here, first post here, summary of other folks' reactions here, with more between and above those posts as well. The Curmudgeonly Clerk throws in a few words here as well, with a brief reaction here.

Instead of getting into the highly detailed and professional debate over originalism, textualism, strict construction, and incorporation, let me try to work out a few idiosyncratic, incoherent points and continue in my Donald Luskin vein (sorry! It's weird, I know it; I get into ruts but I'm not actually obsessive) and note that my view is that the initial Problemstellung (which comes from the claim by Randy Barnett that judges are empowered through the 9th A to smack down states when they intrude on rights in the name of morality) is flawed for one fundamental reason.

The argument seems to claim that legislatures can't legislate on the basis of morality, because judges are empowered to determine whether or not state laws aim at "liberty" rather than "license." The main problem here is that there is no account of license that does not rest on a controversial moral view. In fact, the moral distinction between liberty and license is almost guaranteed to be controversial in Barnett's scheme -- after all, you need the distinction to justify judicial power to strike down state laws. Now whether or not the hypothetical judges who decide to take up this approach will be able to justify their exercise of power will be dependent on the prevailing legal-professional views of the purpose of 9th A. But they will also be dependent on myriad other factors, such as the rhetorical abilities of the individual judges, the party and interest-group constellation at the point of the decision, the action of other high-profile individuals (such as the MA SJC, the President, or the Mayor of San Fran, to pick a few at random), and so on. As an attempt to constrain judges from using their personal views of morality in their opinions, moreover, discussions about the meaning of 9th A will have some effect, but that effect shouldn't be overstated (and that's the political scientist in me talking). If I'm right that it is impossible to separate moral factors from the area of Establishment Clause judging, for example (see below), then I can't see how it will be possible to separate out moral factors when judges look at the 9th A, which is admitted by all hands to be more amorphous and vague than the Establishment Clause. At least with EC you know what the broad subject matter is by looking at the text of the Amendment.

MORE: I fiddled with this a bit within ten minutes of posting it.

DC CONFERENCE ON HOUSING DESIGN AND DEVELOPMENT

Folks in the DC area with an interest in historic preservation may like this conference on March 3:

The Building Futures Conference is a day-long educational event with conference sessions focusing on topics such as: marketing historic districts, housing programs and incentive programs for historic homes/districts, and compatible design. The intended audience is preservationists, housing agency and organization staff, Main Street program staff and boards, DC real estate agents, architects, developers, and preservation and history students. The conference is sponsored by the DC Historic Preservation Office, DC Preservation League, National Trust for Historic Preservation, DC Board of Real Estate, National Housing & Rehabilitation Assoc., Committee of 100 on the Federal City, and reSTORE DC.

The conference headquarters is the True Reformer Building (1200 U St., NW) and will run from 8:00 am (registration) to 5:30 pm. A selection of walking tours is included as part of the day's activities.

Contact info is available here:

http://www.h-net.org/announce/show.cgi?ID=136875

ELECTION LAW BLOG

. . .appropriate that Rick Hasen's Election Law blog enters the "terrible two's" during an election year, no? [That would work better if the blog turned two rather than one, but, well, o.k.]

CSBG, HIRING DISCRIMINATION AND THE ESTABLISHMENT CLAUSE

Check out OMB Watcher from 2/9, if you haven't already. Particularly noteworthy for me is the report on the reauthorization battles over the Community Services Block Grant Act of 2003. The Thomas page on the bill should be here. Earlier this month, OMB Watcher reports, the House refused to adopt an amendment to the bill offered by Lynn Woolsey (D-CA) that would have prohibited religious entities that receive block grants through the program from discriminating on the basis of religion in their hiring decisions.

The floor debates on Rep. Woolsey's failed amendment make for gripping reading. One of the interesting aspects of the discussion is that opponents of Woolsey's amendment framed the issue as one of "deny[ing] religious charities the rights they are granted under the 1964 Civil Rights Act and as upheld by the U.S. Supreme Court and current law" (Rep. Boehner, R-OH, page H320) Rep. Boehner said:

Now, should the minority succeed in depriving these groups of their rights, I do think it would have a chilling effect on the participation of faith-based organizations in the Community Services Block Grant program.

We can expect that at least some of these groups would choose not to participate in CBGC, rather than compromise their character. As we all know, the group most likely to suffer the consequences are the most vulnerable in our society, those who need the help most.

A little later, Rep. Osborne (R-NE) said:

The Supreme Court in Mitchell v. Helms set forth the proposition that members of religious organizations should always be presumed to be acting in good faith. It seems to me that we are doing exactly the opposite here. We are assuming that members of religious organizations act in exactly the opposite, they operate in bad faith. I do not think they do this. That is why for 6 years we have not had complaints. This is working. So we think we have a good bill. We think we need to pass it, as written, and we would urge a vote against the substitute. (page H321)

I'm unsure about Osborne's reference to Mitchell's establishing that religious organizations should "always be presumed to be acting in good faith." Mitchell involved a challenge to a federal education program that allowed state and local education agencies to use federal money to buy materials (library books, computer equipment and software) that they would loan to public and private schools, including religious schools, who were then supposed to use the materials for non-religious purposes. A fractured Supreme Court upheld the program against an Establishment Clause challenge by parents and taxpayers in a Louisiana district where much of the funds went to catholic schools. Justice Thomas wrote a plurality opinion joined by three others, Justice O'Connor concurred and was joined by Justice Breyer, and three justices joined a dissenting opinion by Souter. Thomas's opinion argued that the aid program was permissible primarily because of its design: it did not define recipients of the aid based on their religion. In addition, the program aid was not religious in "content." Thomas also included some harsh words for those who want to exclude religious organizations from receiving aid from general government programs, saying that this position was "bigotry." O'Connor thought that Thomas's program-design approach was insufficiently attentive to the effect of aid programs, and the dissent agreed -- everyone should read the dissent, in my view, because it is a fine statement of reasons why the current trend toward accomodating religion is flawed.

The language that Osborne relies upon to claim that Congress is now authorized by the Supreme Court to presume good faith on the part of religious groups comes from Justice O'Connor's concurrence in Mitchell (scroll down to part V):

To find that actual diversion will flourish, one must presume bad faith on the part of the religious school officials who report to the JPPSS monitors regarding the use of Chapter 2 aid. I disagree with the plurality and Justice Souter on this point and believe that it is entirely proper to presume that these school officials will act in good faith. That presumption is especially appropriate in this case, since there is no proof that religious school officials have breached their schools' assurances or failed to tell government officials the truth.

The problem with Osborne's claim is twofold. First, onlyO'Connor (joined by Breyer) was interested in stating that the the Court should presume that religious school officials are acting in "good faith" in not diverting educational materials to sectarian use. The plurality opinion written by Justice Thomas didn't seem to care if the religious school officials were acting in "good faith," because the plurality thought that the aid program in question was constitutional regardless of the possibility that the aid could be diverted to religious use.
Thomas writes:

So long as the governmental aid is not itself "unsuitable for use in the public schools because of religious content," . . . and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern. (from Part II-B-2, here)

Now Osborne is right in spirit; Thomas and the three other "accomodationists" seem more friendly to religion in general (or at least majority religions), so one might describe them as believing that religious officials are generally acting in "good faith." But in this particular context, only Justice O'Connor was explicit about the presumption, and only within the narrow context of potentially divertible education equipment.

More fundamentally, though, the community services block grant is very different from the aid program that was challenged in Mitchell. In Mitchell, the schools got materials. Here, the religious charities are getting money, straight up, and the concern expressed by Rep. Woolsey and others is that they will be making hiring decisions based on religion. It's hard to imagine that anyone should extend a blanket assumption of good faith either that the charities will use the money only in permissible ways or that they will make hiring decisions consistent with federal law. In fact, as the quote from Rep. Boehner shows, the whole point of opposing Woolsey's amendment was to make sure that the religious groups could discriminate in hiring; otherwise, some religious groups would be deterred from taking federal money.

The point here is not that members of Congress make inappropriate use of Supreme Court decisions. I'm sure that Osborne is a busy man and that he didn't attempt to overreach in this particular part of his argument. And I doubt that he changed anyone's mind anyway. I'm not entirely sure that members of Congress should really pay close attention to the language of Supreme Court decisions. I am interested in how they use those decisions, though.

One final point in this overlong post. Boehner's point about the potential for scaring religious groups away from the block grant program by making them comply with federal antidiscrimination law is flawed for one very important reason, as many of his Democratic colleagues pointed out in the floor debate. When a religious group administers a federal program and also engages in discriminatory hiring, there is a strong likelihood that observers of that group will conclude that the discrimination is condoned by the federal government. In order to draw that conclusion I suppose all one would have to do is read the floor debates on H.R.3030 anyway.

That's a divisive message. Boehner and others refer to the plight of the poor clients of the religious organization as a reason to condone the discrimination. Such programs are likely to set up a backlash, I'd say, and build a stronger case for the kind of policy outlined in Justice Souter's dissent in Mitchell: a substantive principle of "no aid" to religious organizations. Republicans like the block grant program in its current form because it allows them to say that they support religious organizations and it also allows them to feel that they are not contributing to the growth of the federal government. But in my view, wanting to get social services (presumably) on the cheap is not a reason enough to allow federal money to be used to fund religious divisions.

ON TERRORISM-RELATED MEDIA-HYPE SCRUTINY

Unlearned Hand has an excellent post on the Captain Yee case, here. Here's part of the post:

There is always something discomfiting about seeing someone punished for crimes that we overlook most of the time. Perhaps it clashes with our intuitions about notice and the rule of law. Perhaps it raises our suspicions that some ulterior motives are at work, and certainly Captain Yee's religion makes that a real possibility. And yet I take it we have these laws on the books for a reason. They are, at least in some cases, supposed to be enforced. Perhaps the best we can say is that Captain Yee was in the wrong place at the wrong time. That doesn't seem very satisfying.

Investigations themselves have a kind of punitive aspect to them. People have often said over the past few years that additional scrutiny of religious and ethnic minorities is no big deal, since, "if they haven't done anything wrong, what do they have to worry about?" Well, the best response is: the additional scrutiny is itself something to worry about. Second, in Establishment Clause cases, you can find a lot of language about the importance of individual citizens feeling that they are part of the community, that they are not somehow lesser citizens because of their religious beliefs. The same concern should be brought to bear here, I think, although it's not clear to me how this can be done. More secrecy at the investigative stage? That's problematic. Tighter reins on the media? Rules to rein in prosecutorial discretion? Presumably experts in military investigations would themselves be best equipped to make recommendations. One thing does seem clear, however: in any given case, the urge to declare a victory against al Qaeda should be contained until actual terrorism-related charges are brought against a particular individual.

MORE: In only tangentially related news, if you happen to be in the wild woods of Oswego County on March 3, come watch Volker Schloendorff and Margarethe von Trotta's adaptation of Heinrich Boell's The Lost Honor of Katharina Blum (1975). I'll be moderating a discussion afterward. The movie is about the police investigations and media furor that surround a young woman after she has a relationship with a man who, unbeknownst to her, is suspected of being a member of the Baader-Meinhof terrorist group. I still think that this is a movie that everyone in the U.S. should watch. Germans have had to deal with the wrenching questions of how they can respond to terrorism and still remain respectful of civil liberties. The results were not always successful, but we can learn from them. 7 p.m., Lanigan 107.

MORE DISS-RELATED BLOGGING

See Chris Lawrence's posts on an interesting attempt to use survey data to wade into a flash-in-the-pan debate on whether or not conservatives or liberals are smarter, here and here.

FAMILY

If you're in Boston, check out my sister Heidi Marston's corner of the Traveling Scholars 2003 show at the Museum of Fine Arts. It's up until March 14. I'll buy a beer for anyone who notices her Thomas Struth reference.

I was in Boston on Thursday and got to hear Heidi's gallery talk as well as my brother Todd's senior piano recital at Berklee. Here's a picture of Todd and his "special guests" in action (I'll post their names as soon as I get them).

MORE: If you want one highly personal reaction to Heidi's show, go here and scroll down to the post "Objets d'Art." The photo included in the piece doesn't give the full flavor of the work itself: it's a large format digital print with some hand-drawn alterations (in pencil), and below the piece is a wooden box with hundreds of sharpened pencils and a pile of pencil shavings. The title, if I remember correctly, is "When Inspiration Comes, I'll be Ready." The work almost screams out at you to pick up one of the pencils and start working on the piece yourself. . .but don't do that, you'll get in trouble. Aside from the attractiveness of the composition and the ingenuity of the installation, the piece also shows Heidi's sense of humor, which is, as anyone who knows her will attest to, formidable (is that the right word?). . .

MORE: Here's a picture of Heidi at her gallery talk at the Museum of Fine Arts last Thursday. My parents are in the picture, too: dad's seated on the floor, mom is next to him on the bench. Her section of the exhibit is down the hall on the right after you enter the Traveling Artists exhibit, which is past the gift shop near the main lobby.

MORE (2/20): Chris Martin notes that Berklee's new president is a Wildcat. Cool.

ON NON-EXISTENT CHOICES

Professor Bainbridge responds to my comments below, thus:

So much for anything remotely resembling neutral principles. In lieu thereof, Marston offers up nothing more than naked personal preference. Instead of legitimate processes, Marston would prefer to impose on us a varying cast of tyrants who will impose his preferred outcomes. So much also for anything remotely resembling democracy - or liberty.

Not so fast. The question is: if you had to take moral judgments made by legislatures, or moral judgments made by courts, which would you take? First, it's a silly choice. Moral judgments are inevitable in both institutions. Second, if judgment is necessary, one should judge based on the history of outcomes, not simply on a theory of institutions. That history reveals a mix of good and bad outcomes from both institutions; we can expect the mix to continue. But, third, since Professor Bainbridge offers responsiveness as a reason to choose legislatures, let's assume limited resources, and ask: will my $200 influence outcomes more if I donate it wisely to a congressional race in a swing state, or if I donate it to, say, the Southern Poverty Law Center? Seems like a toss-up to me, all things considered. And what if I don't have $200?

Steve Taylor hits the nail on the head in this respect: part of the reason why folks criticize moral judgments made by courts is that they think that courts should just get out of the (newfangled) business of such judgments. Everything depends on how one defines the key terms here, I suppose, but try to find an approach to recent Establishment Clause school aid cases that avoids contestable moral judgments altogether. Your effective choices are:

• Let states and localities give taxpayer dollars to religious organizations in an "evenhanded" way (I mean, as Justice Thomas might say, what are you, an anti-religious bigot?)


• or, prevent states and localities from giving taxpayer dollars to religious organizations (I mean, what are you, an oppressor of non-religious taxpayers, as Justice Douglas might have said, or an unwitting Balkanizer, as Justice Stevens might say, see here)


• or, find some judicially monitored middle-ground (not wanting to be either a bigot or an oppressor, as, perhaps, Justice O'Connor might say, or at least think, see here).

Good luck extricating the courts from contestable moral judgments there. Note that democratism, letting legislatures do what they want based on their own moral lights, will leave you open to the charge that you are being guided by moral beliefs as well, and you'd probably have to agree, at least in private. Hence, it seems to me, the invocation of the spirited language of bigotry in Thomas's Mitchell opinion, see here (end of part II). And as Stuart Buck notes with respect to bureaucratic decisionmaking: courts also act this way partly because we ask them to.

WOULD NOT WANT TO HAVE TO DECIDE THAT ONE

Meanwhile, the Philippine Supreme Court is set to decide whether or not Fernando Poe, Jr., an actor and popular presidential candidate, is actually entitled to run. The basic dispute is whether or not Poe is a natural born Filipino.

Here is the Sassy Lawyer's take on Poe. See also this article from World Press Review.

MORE INDIAN SUPREME COURT

The Indian Supreme Court is also involved in a dispute over an Indian version of Viagra:

Under the Drugs and Cosmetics Act, 1940, no drug, except those falling under class 1 to 4 of the Second schedule, could be manufactured, sold or distributed, unless the same was included in the Indian Pharmacopoeia or any other official pharmacopoeia of any other country, the petitioner said.

It requested the Court to direct the Government to give details of permission given for import, manufacture and sale of new drugs in the last ten years so that the ill-effects of such drugs marketed without confirming to standards could be gauged.

What is most startling here for a reader from the U.S. is the expansive power that the Supreme Court apparently has to review the factual record of administrative agency decisions. This kind of fact-finding would be done at lower levels in the judicial system in the U.S. I wonder: does this extra task make the Indian Supreme Court stronger than its U.S. counterpart (because of its ability to demand information from the government), or weaker (because of its wider range of responsibilities and hence lesser ability to specialize in the narrow task of reviewing appellate decisions)? My guess would be that it makes the Court stronger. I have heard it said that the Court has attempted to appeal to a popular constituency by appearing to be less corrupt than the other branches of government; its basis for legitimacy is less the particular blend of technical legal expertise, formidable rhetorical power, and relative public ignorace that seems to make for U.S. Supreme Court legitimacy, and more the fact that the Court stands up for the public interest against the alleged corruption of political classes. Fact-finding power fits quite well with that image.

INDIAN SUPREME COURT HEARS MONSANTO PATENT CASE

The Indian Supreme Court is set to hear a remarkable case brought against the Indian government, prospectively, for failing to contest a European patent given to Monsanto that may or may not cover a variety of Indian wheat called "Nap Hal." Read the New Kerala News article here. Two things are noteworthy about this case, it seems to me. First, whatever your position on GMO's, you've got to figure out how you stand toward the intimately related issue of agricultural patents (the advance of GMO's implies an advance in the global patent regime). I don't know enough about this particular case to know whether or not the particular patent actually does cover the wheat in question. If it does, though, someone has made an error, either in this particular case or in establishing the rules of a patent regime that allows for multinational corporations to appear to claim rights to staple food products available widely in places like India. And it is no answer to say that such errors will be part of the emerging bio-patent regime. The costs of rectifying such errors may fall upon governments that are ill-equipped to defend their citizens' interests in international judicial forums. [Not saying that India is necessarily such a country, but it might be.]

The second important thing about this case is that it reveals something about the power of the Indian Supreme Court. Here, petitioners have taken the central government for failing to contest a patent before the deadline for that contestation has even passed. Conceivably, then, the Court could order the government to act to defend the national interest by filing the requisite judicial paperwork before the deadline this week. Now I don't know enough about the precise legal basis for such a challenge, but it seems to me remarkable that it is possible to ask the Supreme Court to tell the central government to act on such a matter. This means that the Court can have a strong hand in setting government policy by forcing certain items onto the agenda. Very interesting.

BUT WAIT, THERE'S MORE!

After reading these posts on morality, judges, and legislators, I've got dolls dancing in my head. The particular ones in my mind's eye are from Anita's parents' house: colorfully painted nested dolls on the sideboard in the dining room, looking on, smiling, while you eat.

An overworked opening metaphor, perhaps. But I can't help thinking: how is advocating the judicial clearing away of legislative judgments on morality -- and their replacement with a (contestible, controversial, judicially implemented) theory of liberty and license -- any different from picking up the first doll, only to find, underneath. . .another doll!? It's exciting the first few times you do it, but after a while you're not surprised any more.

(For the centrality of liberty and license in his scheme, see Barnett's paper on Lawrence in PDF format, here, and read the top paragraph on p. 16).

MORE: I don't think that there are no differences between moral judgments made by legislators and those made by judges. There may be real reasons to prefer moral judgments made by jurists under certain circumstances -- although I'll admit that my best stab at a distinction here would be open ended, like: judges reveal themselves as good users of moral judgments when they reach results I find morally appealing. The same goes for legislators. I don't know how you could develop a purely abstract account of the relative merits of judicial or legislative moral grounding. Folks in both offices have their particular moral dilemmas -- judges have the particular task of justifying their power, legislators have the particular task of knowing when not to be responsive to their constituencies, for example -- but the particular content of their moral judgments are going to change over time. So it's odd to prefer, as such, legislative over judicial "tyranny," as Professor Bainbridge does. I'll take the 39th, 40th, and 41st Congresses over the Taney and Taft Courts, and the Warren Court over the 106th and 107th Congresses.

MORE: See the post above as well.