Wednesday, October 31, 2012

On Dog Sniffs and Innocent Privacy

By Sherry F. Colb

Today on Verdict appears part 1 of a two-part series of columns in which I discuss the cases of Florida v. Jardines and Florida v. Harris, both of which are set to be argued before the U.S. Supreme Court October 31 (today).  Both of the two cases raise questions about dog sniffs for narcotics:  the question in Jardines is whether bringing a dog to the front door of a suspect's home to sniff for narcotics constitutes a Fourth Amendment "search" that triggers the probable cause requirement; and the question in Harris is when a dog's positive alert after sniffing a vehicle from the outside for narcotics may be considered sufficiently reliable to support probable cause to perform a conventional search of the vehicle.

In both decisions, the Florida Supreme Court sided with the criminal defendant, holding that (1) a dog sniff from outside the front door of a suspect's residence does constitute a search for which police must have probable cause, and (2) a dog's positive alert to narcotics may not form the basis for probable cause in the absence of a showing that the dog has a demonstrable, reliable track record of drug detection, including a record of avoiding false positives (alerts in the absence of narcotics).

In the column, I discuss some of the case law that bear on the Court's consideration of the case, and I also propose that there is an important distinction between a dog who sniffs for narcotics and an inanimate machine calibrated to detect narcotics -- a distinction that ought properly to play a role in deciding the two cases.

In this post, I want to take up the separate question of when, if ever, a person has a reasonable expectation of privacy in concealing criminal evidence from the police.  That is, do individuals have a Fourth Amendment right to keep police officers from learning that they are harboring incriminating evidence, even if police can learn of this fact without having to uncover any law-abiding, non-criminal facts about the individual?

The Supreme Court's response to this question has generally been "no."  The Court has said in United States v. Jacobsen, for example, that people lack any reasonable expectation of privacy in the fact that a visible powder is (or is not) cocaine.  The Court has also said that people lack a reasonable expectation of privacy in the fact that they are (or are not) in possession of illicit drugs.  The latter principle arose specifically in dog sniff cases, in which the Supreme Court concluded that a dog sniff for narcotics is not a Fourth Amendment "search" and can therefore proceed without probable cause (or any level of suspicion).  The Jardines case before the Court today (October 31, 2012) asks whether that proposition extends to narcotics within the home, given a history (outlined in my column) of cases distinguishing between the privacy that people have in their homes and the privacy that people enjoy in of other, non-home locations.

Underlying this specific question is the general one of whether the Fourth Amendment protects more than simply innocent privacy.  Ordinarily, when police search a home, a car, or any other personal space, they  inevitably uncover private, lawful activity in which people have a reasonable expectation of privacy.  A house search generally will disclose -- among other things -- the inhabitants of a person's home, the degree to which one's home is neat, clean, and well-organized, and the kinds of books or music or types of furniture the resident might enjoy.  A person might also have embarrassing (but perfectly lawful) written communications visible to someone walking through his or her home.  It is to protect this kind of privacy (innocent privacy, that is) that police must acquire a warrant (or probable cause and some reason for forgoing the warrant requirement) before entering a home.

But what if police could do a more precise kind of search that would tell them only whether or not the person in the house was in possession of criminal items?  Would there then be any legitimate reason to prevent the police from performing this precise search on everyone?

To make the question more concrete, imagine a device that police could point at a house and then receive a readout like this:  "contains explosive devices" or "contains a corpse."  Assume that civilians were prohibited by law from having either an explosive device or a corpse in their home (with perhaps a special permission for relatives of the recently deceased, who could put up a death certificate to exempt themselves from the law).  Would it invade any properly recognized privacy right for police to be able to point a device at every home in the country and thereby find out which homes contain explosive devices, corpses, or both?

I think the answer to this question is no.  When the Court says that people lack a "reasonable expectation of privacy," it typically uses the term to mean that one could not realistically expect privacy under the circumstances, even if the police stayed out of the equation.  For example, if you yell across a crowded bus to your friend, you cannot realistically (and thus reasonably) expect that your words will remain private.  Everyone else on the bus can presumably hear you.

Other times, however, the Court uses "reasonable" in the Fourth Amendment context to mean that an individual has (or lacks) a normatively legitimate expectation that something will remain private, whether or not the expectation is realistic.  For example, a person may live in a very modest home with ineffective locks and in a neighborhood in which there are constant break-ins.  It might therefore be empirically unrealistic to expect privacy from intrusion in that home, even if police never try to enter.  Nonetheless, the Court has recognized a (normatively) reasonable expectation of privacy in the home and requires a warrant for police to enter, notwithstanding the target's vulnerability to civilian home intrusions (and the unrealistic nature of any expectation that such intrusions will not occur).

The issue of whether people have a right to conceal criminality raises the second sort of "reasonableness" question.  Plainly, in the absence of special technology, one can "realistically" expect that one's hidden explosives or corpses will remain hidden, so that an empirical approach to the reasonableness question would likely yield the conclusion that use of the hi-tech device is a search.  Yet, from a normative standpoint, it does not seem that any valuable interest is at stake in the asserted claim that "I want to keep the fact that I am in possession of explosives and corpses a secret."

Notwithstanding these arguments, I am somewhat uncomfortable with the notion of the government being authorized to use its special device to detect whether individual civilians -- suspected of nothing -- are in possession of incriminating materials.  Why the discomfort?  I think there are two reasons for it.

First, the criminal law is extremely broad and prohibits and punishes a great deal more than simply violent crimes and other harms.  The law in fact prohibits some things that many regard as innocuous conduct (possession of marijuana is one example).  As a result, when police use a special hi-tech device (or a trained canine companion) to find out incriminating facts about a person's home, they may be finding things out that are illegal but that may not be legitimately criminal.  This fact -- that not everything "criminal" ought to be criminal -- complicates the picture and leads me to think that police surveillance of all illegality would invade a legitimate expectation of privacy, in virtue of the overbreadth of our criminal law.

Granted, this complaint represents an argument against the substantive criminal law, not just an argument against hi-tech, precise searches.  If we think that overcriminalization is likely to stay with us for the foreseeable future, though, then protecting the home from precise searches in the absence of probable cause can serve as an imperfect strategy for preserving some degree of valuable, innocent privacy.

The second reason for my discomfort with the precise hi-tech search is that I think that in reality, very little criminality lends itself to the sort of precision at issue.  If police are trying to find a kidnapping victim, then yes, a police dog who can track from outside the home whether or not a victim is present inside ought to be allowed to do so, even in the absence of probable cause.  But most of the time, incriminating evidence takes forms that are far more messy -- such as the thermal detection device that let police know that people were probably growing illicit drugs inside the house in Kyllo v. United States.  As the Court noted there, the heat detector could have revealed other, lawful, private facts -- including such facts as how many people were in the house and what time of day one of the people there takes her daily sauna or bath.  Most of the time, technology that detects and exposes one sort of fact (drug-growing, for example) will necessarily exposes other sorts of facts too.  The precise search is thus mostly an illusion.

If there were a perfect surveillance tool, then -- one that would single out (1) only criminal evidence and, more precisely, (2) only evidence of crimes that truly ought to be crimes, then I would agree that such a tool would invade no reasonable expectation of privacy.  My worry, however, is that we may come to classify tools that fail one or both of these criteria as perfect surveillance tools and thereby lose a great deal of innocent privacy in the process.

Tuesday, October 30, 2012

Cowboys/Giants Game May Have Raised Deep Question: What is a "Body Part?"

By Mike Dorf

With Hurricane Sandy wreaking its havoc on the coast and currently headed for Ithaca (perhaps as a mere tropical storm), I thought I'd devote today's post to the relatively frivolous distraction of a dissection of a football rule.  For those of you who still have internet access, perhaps this will prove amusing.

Near the end of Sunday's Cowboys/Giants football game, Cowboys wide receiver Dez Bryant caught what was initially ruled a game-winning touchdown pass in the back of the end zone, but following instant replay review, the pass was ruled an incompletion.  As the announcers explained, and as I shall explain momentarily, the revised ruling was correct.

The replay showed that Bryant caught the ball while he was in the air but that the first part of his body to land was his hand, and his hand landed partially beyond the back of the end zone.  Under Rule 8, Section 1, Article 3, if a receiving player "touches the ground inbounds with both feet or with any part of his body other than his hands" and controls the ball before going out of bounds (or out of the end zone, which is treated the same way as the sideline), the pass is complete.  Accordingly, by negative implication and longstanding understanding, a player who partially lands out of bounds is deemed out of bounds.  Thus, while landing on one's hands in the end zone or otherwise inbounds does not render a pass complete, landing first on a hand out of bounds renders the pass incomplete.

I'll admit that before the dramatic finish to Sunday's game, I was unfamiliar with the exact requirements of the rule.  I was aware that in pro football, a player needed to get both feet down before going out of bounds--if he lands on his feet--but I hadn't really thought about what happens if a different "part of his body" made contact with the ground first.  And this raises a question that, so far as I can tell, the rules do not fully address: What counts as a "part" of the body?

To make the question concrete, suppose the following slight variation on Bryant's catch.  Suppose that Bryant's hand had not touched outside of the end zone but that he had landed on his left buttock inbounds but that he then rolled so that his left buttock made contact with the area out of the end zone.  Is that a completed catch because Bryant's left buttock is a "part of his body" that touched the ground inbounds?  Or is the relevant body part Bryant's entire posterior, so that he should be ruled out of bounds?

According to the post-game commentary I heard, any part of Bryant's hand landing out of bounds made him count as out of bounds and so one might think that the same is true for other body parts, but that still leaves us with the quandary of what counts as a body part.  Moreover, hands are different, because by express exception within the rule, no part of the hand landing inbounds can render the player inbounds.  Thus, it is tempting to say that if any part or sub-part of a player--other than his hands or feet, which are subject to their own rules--makes contact with the inbounds ground before any other part of the player lands out of bounds, then the player is inbounds and the catch is a completion.  Under this reading of the rule, officials would not have to decide whether a buttock is a body part or merely half of a body part.  If the reciever has control of the ball when his left buttock--or even some portion of his left buttock--hits the ground inbounds, then the pass is complete, even if fractions of a second later some other part or subpart of the player goes out of bounds.

Likewise, suppose an eligible receiver  loses his helmet but then catches a ball in mid-air, landing on his face.  (Ouch!) If his nose hits down inbounds but then his cheek lands out of bounds, is the relevant part of the body his nose (completion) or his face (incompletion)?  My reading of this rule makes this esoteric question unnecessary to answer.

But is a preference for interpretive certainty one of the canons of construction of the NFL rules?  I would hope so, but frankly I don't know.  I do think that this one little puzzle illustrates the incredible complexity that rules of sport can manifest.  For those of you interested in discovering more puzzles, the complete NFL rulebook can be found here.  It belies any idea that football players are "dumb jocks."  Just learning the letter of the rules, much less mastering the complex offensive and defensive plays and schemes used in the NFL, is an extraordinary challenge.

Monday, October 29, 2012

Presidential Dog Whistles

By Mike Dorf

A recent NPR News story discusses the fact of the Presidential candidates' silence on a number of issues.  I'm quoted with respect to two such issues: campaign finance and Supreme Court appointments.

I express puzzlement that the Obama campaign didn't try to tie Citizens United--which is broadly unpopular--more closely to Mitt Romney.  It would have been a logical move, given that Romney has cited Justices in the majority as his models, that he said "corporations are people my friend," and that he has the financial support of outside groups funded by billionaires.  To be sure, Obama hardly has clean hands on campaign finance, but he holds the relatively high ground here, which should be all that counts.  With respect to the Supreme Court, I explain the silence on the ground that there are risks for both sides because the party activists who care about the litmus-test issues in the courts tend to take positions -- either right or left -- that might prove broadly unpopular.

Still, that's only a partial explanation.  It has long been true that hot-button issues in the courts were polarizing and thus potentially dangerous for Presidential candidates, but candidates have, in the past, nonetheless tried to use such issues either as wedges or to mobilize the base.  On judicial appointments as on so many other issues, the tricky part is figuring out how to mobilize the base without alienating the middle.

A nice example of that maneuver came in 2000 when candidate George W. Bush denounced the Dred Scott decision in one of his debate answers.  To the average viewer, this might have been simply harmless rhetoric.  After all, it wasn't as though anybody thought that Al Gore was running on a pro-slavery platform.  But conservative activists understood Bush's references to Dred Scott as a coded message that he would oppose abortion, because the pro-life movement has likened Roe v. Wade to Dred Scott.  Invoking Dred Scott was like blowing on a dog-whistle that was audible only in the conservative activist portion of the spectrum.

Were there similar dog whistles in the Obama-Romney debates?  It depends on what you hear.  Romney's references to food stamps--both in the debates and on the stump--could be understood as coded race-baiting.  Like all good dog whistles, this one has deniability.  The fact that the number of people on food stamps has increased does indeed reflect badly on the country's economic state.  But of course food stamps aren't the problem.  The underlying need for food is the problem.  So while Romney says that he wants to get people off of food stamps by bringing down unemployment, the very choice to illustrate the underlying problem by talking about food stamps is questionable, especially given the (false) stereotype of the typical food stamp recipient as African American.

What about dog whistles by Obama?  To my mind, the most interesting example is the discussion of access to contraception as a kind of code for abortion.  It's true that contraception itself has become politicized of late, but even the 2012 Republican Party is not at all likely to substantially reduce domestic access to contraception, and that would probably be true even if Rick Santorum were the party's nominee.  So why has President Obama called attention to Republican opposition to funding for contraception?

Partly it's just good politics in its own right.  Doing so dramatizes the extremity of a substantial chunk of the modern Republican Party (including Paul Ryan) on social issues.  But I also suspect that Obama is using contraception (or "women's health" more broadly) as a dog whistle for abortion.  Social moderates who may even be somewhat pro-life hear criticisms of Republican opposition to contraception as merely criticism of an extreme position.  Meanwhile, clearly pro-choice liberals (part of the Democratic base) hear the criticism and think that if some people in the Republican Party would go so far as to challenge access to contraception, then the Party as a whole must be dangerously anti-abortion.

Of course, I could be wrong about either of these examples.  My hearing is fine, but I'm not a dog.

Friday, October 26, 2012

Calling It As It Is

-- Posted by Neil H. Buchanan

In my new Verdict column, published yesterday, I describe the current leadership of the Republican Party -- very much including Mitt Romney and Paul Ryan -- as "sociopathic."  Needless to say, I did not do so lightly.  This is not a matter of simple name-calling, where (for example) Obama-haters empty their limited thesauruses by calling him a communist, fascist, socialistic Kenyan.  All of these words actually have meanings, and sociopathy does as well.

As I explain in my column, sociopaths display extreme anti-social tendencies, being willing to violate norms that apply to others in the self-centered pursuit of their own immediate gain.  These antisocial attitudes are manifested in "a pattern of behavior in which social norms and the rights of others are persistently violated," and in a person's "disregard for social norms, rules, and obligations."  As I describe in the column, when one starts to look at even a small sample of what the current Party leadership stands for -- often in direct contravention to the wishes of the majority of its own voters, such as (for one of many examples) the leadership's extreme views on abortion -- as well as how it is willing to pursue its ends, the picture of sociopathy comes quickly into focus.

In short, we are not talking about reasoned disagreements over whether, for example, cap-and-trade is a better approach to mitigating environmental damage than carbon taxes (which was, in fact, still a Republican-versus-Democratic point of disagreement only a few years ago).  We are now talking about a group of people who have decided that they do not need to engage with reality anymore, who feel completely justified in repeating the most blatant lies in the pursuit of their own advantage, and who show no hesitation in pursuing policies that harm others.

Having grown up in an extended family of Republicans (including my parents, who supported Rockefeller and -- yes -- George Romney at various points), I have been fascinated by the phenomenon that is the modern (essentially, post-1980) Republican Party, and the conservative movement that has taken it over.  I keep expecting the party to "jump the shark," each time something especially crazy happens, but the willingness of the party's base to stick with the increasingly sociopathic leadership continues to surprise.

John Dean has reported on research that suggests that about 25% of the country (about half of Republicans) would vote for an out-and-out fascist candidate, because those voters are "followers" in the deep sense that they are more interested in obeying authority (and, more to the point, making othered people suffer under an authoritarian regime) than they are in the content of any particular economic or social policies.  Even so, a party that had only 25% support in the country would quickly wither and die.

The continued viability of a party run by sociopaths (but supported in large part by voters who are healthy, functioning people) is thus a mystery.  As time passes, some conservatives have simply given up on the party.  I do not know what it will take for others to follow, for example, David Frum's lead and say that enough is enough.  I do know that -- especially when one considers the openness of the Democratic leadership (and Obama in particular) to blatantly conservative policy ideas, such as cutting Social Security -- this is no longer about liberal-versus-conservative policy differences.

As I noted above, the modern Republican leadership's antisocial extremism can be seen both in its goals and in its methods.  As a matter of goals, the economic and social agendas of the Party have become efforts to take things away from "undeserving" others.  Women, apparently, do not deserve the right to control their own bodies (not just regarding abortion, but now even with regard to contraception), unless they are economically elite enough to sidestep the laws that would be imposed on other women.  I note in my Verdict column that Eric Cantor (the second-highest-ranking Republican in the House, and a co-author of a conservative movement manifesto with Paul Ryan) has specifically insisted that nutrition programs for poor children be cut as part of any budget deal.  It is one thing to insist on ideologically motivated cuts to NPR and Planned Parenthood, which would devastate those programs but save virtually no money.  We are now talking about harming poor children, just to prove that we can cut the budget, while fighting like crazy to preserve every last dollar of a bloated military budget -- and, of course, to resist any increase in taxes on the rich.

This moral disconnect -- the willingness to engage in policies that would harm vulnerable people, simply to make a point -- has become increasingly clear in the last few years.  The immigrant-bashing that Republicans have embraced (even turning on George W. Bush and Rick Perry for daring to worry about being "humane") is another area where it is impossible to ignore the pure cruelty of the Republican leadership.  Even military veterans are not safe.  Two nights ago, Jon Stewart dedicated his show to a discussion of how budget-cutting zeal by Senate Republicans derailed a bill to spend $1 billion (0.026% of the federal budget) on a program to help veterans use their skills in civilian jobs.  In the final Presidential debate, Barack Obama correctly said that Mitt Romney's "five-point plan" is actually a one-point plan: the economic elite get to play by a different set of rules, no matter how much it harms everyone else.

And speaking of that "five-point plan," it is worth thinking again about the change in tactics that we have seen over the years, especially in this election.  We now see that Republican candidates no longer bother to try to tether their policies to reality, or to respond to reality-based arguments.  Romney's five-point plan is not a plan, but rather (at most) a statement of gauzy goals (supporting small business, improving education, energy independence).  When pressed for specifics, he simply repeats himself, or relies on the bizarre idea that he can go to Congress with no specifics and "negotiate bipartisanly," or something.

Paul Ryan's deliberate detachment from reality is especially breathtaking.  In a recent speech, he defended a plan that would ultimately (but surreptitiously) cut off poor people from federal support programs as a way to help "restore mobility."  It was just the standard "dependency" meme, and he even managed to contradict his own running mate by proposing severe cuts in Food Stamps.  Anyone who thinks that the "Moderate Mitt" that has emerged in the last month is the "Real Romney" need only look at Ryan and his sponsors, and their supreme confidence that Romney will just be a puppet who signs what they tell him to sign.

None of this matters, apparently.  Ryan and Romney have shown again and again that they do not care what they are saying, so long as it serves an immediate purpose.  Those who hoped that Ryan's inclusion on the ticket would result in an "honest debate" between economic libertarians and everyone else have seen, instead, a candidate who simply says (like his running mate) that up is down and in is out, so long as he says what he thinks people want to hear.  His message is: "We will help people," even as he outlines a plan to harm people.  (In the Vice Presidential debate, he even managed to outdo himself in vacuousness and evasiveness when he said -- twice! -- that the right time to use military force is when "it is in the national security interests of the people of the United States."  Thank you for that helpful guidance.)

No one would claim that politics is about truth and purity.  There has been ugliness in U.S. politics forever, with hardball tactics and outright fraud across the ideological spectrum.  But a party leadership that thinks nothing of the degree and extent of the lies and evasions of the Romney/Ryan ticket, in the service of an agenda that will further entrench the economic interests of a fraction of the 1%, has gone beyond the pale.  Their "disregard for social norms, rules, and obligations" has become impossible to ignore.

Thursday, October 25, 2012

I Am America, and So Can Medicare

-- Posted by Neil H. Buchanan
















Wednesday, October 24, 2012

The Centrality of the Ex Post Facto Clause

By Mike Dorf

My most recent Verdict column discusses last week's ruling by the DC Circuit in Hamdan v. United States. As I explain in the column, the court threw out Hamdan's conviction because the law under which he was charged criminalized violations of the law of war, but at the time of Hamdan's charged conduct, material support for terrorism--the charge brought against him--was not a violation of the international law of war.  I treat the ruling as an occasion to reflect upon the fact that more than eleven years after 9/11, the government still has not fully sorted out how to deal with detainees who are non-state actors.

Here I want to use the Hamdan case as an opportunity to raise some questions about the point of the constitutional prohibition on ex post facto laws.  The court construes the law under which Hamdan was charged as having no retroactive effect in order to avoid the constitutional question that would otherwise arise under the Ex Post Facto Clause of Art. I, Sec. 9.  Should we understand that clause as serving any function other than implementing the principle that no one may be criminally charged without notice that the conduct in which he or she engaged was prohibited?  If not, then the Ex Post Facto Clause is entirely redundant with the Due Process Clause.  But if it has some further content, what content might that be?

The original aims of the drafters and ratifiers are a useful starting point.  The records of the 1787 Convention indicate that the inclusion of the prohibitions on federal ex post facto laws (Art. I, Sec. 9) and state ex post facto laws (Art. I, Sec. 10), was mostly uncontroversial.  What opposition there was took two main forms: 1) Some thought that the ex post facto prohibitions were unnecessary because ex post facto laws are simply impermissible legislation (on something like natural law grounds); and 2) some thought that the prohibitions were dangerous insofar as they could be construed as barring retroactive civil legislation, which is, to some degree, unavoidable.  These objections were defeated on the respective grounds that: 1) an express prohibition is useful as a kind of insurance (see in particular Madison in Federalist 44); and 2) it would be understood that the clauses referred only to criminal laws, as a kind of term of art.

Thus I think it reasonably clear that the Framers regarded ex post facto laws as, in Hamilton's phrase in Federalist 84, among the "most formidable instruments of tyranny."  Why?  Well, that seems obvious enough.  A legislature that forbids conduct after it occurs can find anyone guilty of anything, because it deprives him of the opportunity to conform his conduct to law.  But is that consideration in any way independent of a right to notice, independently protected by the Due Process Clause of the Fifth Amendment?

From the framers' perspective, I think the answer is probably yes.  Today we think of the right to due process as including a right against certain classes of legislation as well as a right to certain sorts of procedures in concrete cases.  But circa 1787/1789/1791, the right to due process may have been thought to apply only in concrete cases.  It is thus notable that the Ex Post Facto Clauses can be found near the end of Article I, along with other provisions limiting the kinds of legislation Congress may enact, whereas the Fifth Amendment Due Process Clause can be found in the Bill of Rights, surrounded mostly by other rights against particularized actions.  (I say mostly, because some provisions of the Bill of Rights, such as the First Amendment, which poses a limit on the "law[s]" that "Congress" can "make," obviously are aimed at legislative abuses.) To paint with a broad brush, the founding era framers might not have thought of bills of attainder as violating due process; they would have thought of it as a legislative abuse instead.

Over time, notions of due process expanded to include what we now call substantive due process.  (For a useful description of that evolution during the first two-thirds of the 19th century, I recommend this article article by my former student Ryan Williams in the Yale Law Journal.)  But substantive due process was and remains controversial.  Less controversially, due process also came to be understood as generally limiting the content of legislation, including limiting retroactive legislation.  Accordingly, if the Constitution contained no Article I, Section 9 Ex Post Facto Clause today, all of the work that Clause does would be taken up by the Fifth Amendment Due Process Clause.

What about the Ex Post Facto Clause of Article I, Section 10, which binds the states?  Section 10 lists a number of limits on the states, most of which have to do with federalism and federal supremacy.  But three concern liberty: the Bill of Attainder Clause; the Contracts Clause; and the Ex Post Facto Clause.  (The oddball in the whole collection is the Title of Nobility Clause, which could be thought as an embryonic precursor to the Equal Protection Clause.)  Thus, at a time when the general view was that the federal Constitution did not need to set forth rights against the several states, one of the very few exceptions was the prohibition on ex post facto legislation.

Of course, today the Article I, Section 10 Ex Post Facto Clause is subsumed by the Fourteenth Amendment Due Process Clause, just as the Article I, Section 9 version is subsumed by the Fifth.  Should that trouble us?  I don't think so.  Instead, I would read the foregoing history as confirming two propositions.

First, it should remind us of the importance of notice to our constitutional understanding of the rule of law.

Second, the way in which the Constitution has become redundant should serve as a reminder that it is not the perfect Word of God.  Textualist or (to use a phrase coined by Akhil Amar) "intra-textualist" modalities of constitutional interpretation that attempt to mine every comma and semi-colon in the Constitution for hidden meanings likely overstate the importance of such phrasing choices to the framers and certainly overstate their importance to the People.

Now, it might be objected to that last point that I have unfairly taxed intra-textualism with redundancies that developed over the course of many years--that the juxtapositions that matter are the ones that were inserted into the text together, coming out of the same mind.  To which I say: why?  If the Constitution is supposed to be a work of genius, then shouldn't we expect later enacters to read it carefully before burying their new hidden meanings in its verbal interstices (like clues in a Dan Brown novel)?

My main point here is not to object to Amar's intra-textualism.  Judge Posner has taken that task for himself and done a much more detailed, humorous and, I daresay, vicious, job than I can.  And anyway, I don't even agree with most of Posner's criticisms.  E.g., I think Amar's reading of the Ninth Amendment is much more sensible and straightforward than Posner's--which attributes to its framers the goal of rebutting an inference that only an idiot would draw.  My main point here is simply to sing an ode (so to speak) to the Ex Post Facto Clauses.

Tuesday, October 23, 2012

Constitutional Avoidance in the 2nd Circuit DOMA Case

By Mike Dorf

Last week's ruling by the Second Circuit in Windsor v. United States employed intermediate scrutiny to invalidate Section 3 of the Defense of Marriage Act (DOMA), the portion that defines marriage as opposite-sex marriage for purposes of federal law.  Readers of this blog and any of my other work will realize that I agree with the bottom line.  I also like the fact that the court used heightened scrutiny rather than mere rational basis review.  With that said, here I'd like to explore the court's reasoning in getting to intermediate scrutiny, which appeared to employ a somewhat unusual version of the principle of constitutional avoidance.

The Second Circuit opinion begins by acknowledging that some other jurisdictions have invalidated parts of DOMA using either conventional rational basis review or what is sometimes called "rational basis review with bite" or with "teeth."  Half-jokingly, I have sometimes called this "extra crispy rational basis review" (ECRBR).  Judge Jacobs notes that the lawyers defending DOMA "wittily" called it "rational basis plus or intermediate scrutiny minus."

Judge Jacobs then goes on to say that resolving the case under some form of rational basis review would be difficult because it is an unresolved question whether there even is a level of scrutiny between conventional rational basis and intermediate scrutiny, and that if there isn't, then it's a close question whether the rationales advanced in favor of DOMA Sec. 3--having a uniform federal definition of marriage, protecting the federal fisc, upholding tradition, and encouraging responsible procreation--count as barely rationally related to DOMA Sec. 3.  But, Judge Jacobs says, the court doesn't need to resolve the difficult rational basis questions because it can decide the case under intermediate scrutiny.

The idea that a court would resolve a case by resolving an easy question rather than a hard question is familiar.  But there are some complications here.

To begin, there is a sense in which Judge Jacobs violates the late Judge Henry Friendly's maxim if it's not necessary to decide an issue to decide a case, it's necessary not to decide that issue.  If the court would have invalidated DOMA Sec. 3 under ECRBR, then it would have been unnecessary to resolve the question of whether heightened scrutiny applies to laws that discriminate on the basis of sexual orientation.  To be sure, that doesn't get us very far, because, conversely, if the court would have invalidated DOMA Sec. 3 under intermediate scrutiny (as it in fact did), then it would have been unnecessary to resolve the questions of whether DOMA Sec. 3 fails ECRBR or conventional rational basis scrutiny.  So resolution under either approach would have obviated the need to resolve unresolved questions under the other approach.

But that kind of equivalence may misapprehend the full force of the Friendly maxim.  I have long understood Friendly's maxim to be connected to other principles of judicial restraint, including the proposition that a court should resolve a case on narrow grounds rather than broad grounds.  And it seems to me that the ruling that intermediate scrutiny applies to sexual orientation distinctions is broader than a ruling that DOMA Sec. 3 fails ECRBR or conventional rational basis scrutiny.

How so?  Well, the intermediate scrutiny holding will have implications for a wider range of cases.  It will mean that laws distinguishing between gay and straight people in other contexts will be problematic.  It will even have the somewhat ironic implication that government affirmative action programs for LGBT persons (if such programs exist) will be presumptively unconstitutional.

To reiterate, I approve of the Second Circuit's decision to apply heightened scrutiny, in no small part because doing so gets at the core problem with DOMA and with laws forbidding same-sex marriage: They invidiously discriminate against gay people.  Applying heightened scrutiny is a way of recognizing the invidiousness of the discrimination in a way that using rational basis scrutiny would not.  Meanwhile, as a matter of constitutional doctrine, I find the idea of additional levels of scrutiny such as ECRBR somewhat antithetical to the whole enterprise of tiers of scrutiny.

I would also note one disagreement with the Second Circuit's substantive ruling.  The court says that heightened scrutiny applies because LGBT persons have the hallmarks of a suspect class.  Here's the key language from the opinion:
The court then goes on to make arguments for each of these conclusions.  Having done so, the court concludes that heightened scrutiny applies, but what form of heightened scrutiny: strict or intermediate?  In my view, the court should have said it was unnecessary to resolve that question, because DOMA Sec. 3 fails even the lower level, intermediate.  Instead, in a single paragraph, the court asserts without really arguing that intermediate scrutiny applies.  Here is the entirety of the court's analysis on the choice between intermediate and strict scrutiny:

Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny.  We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect.  While homosexuals have been  the target of significant and longstanding discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”  Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews v. Lucas, 427 U.S. 495, 506 (1976)).
I read that language to mean that discrimination on the basis of sexual orientation is more like discrimination on the basis of sex than it is like discrimination on the basis of race--or that gays and lesbians are more like women than like African Americans.  That's not clearly wrong but it's not clearly right either.  While it's true that gays and lesbians were never enslaved on the basis of their sexual orientation, it's also fair to say that feelings of sexism and even racism have sometimes been less severe than the sort of hatred rooted in disgust that has been directed at gays and lesbians.  Given that there's at least a plausible argument for strict rather than intermediate scrutiny, I would have preferred to see the court simply not address that choice.

Monday, October 22, 2012

Wait Wait, Candy Crowley and Implicit Rules

By Mike Dorf

Over the weekend, I was the first listener-contestant on Wait Wait Don't Tell Me.   Audio of my segment is available here.  As you'll notice if you listen, the three questions I was asked were very easy.  Indeed, I predicted them in advance, in order (as my students can attest).  Predicting the questions was not a great challenge.  As a regular listener to the show, I have a pretty good sense of the sorts of questions that get asked in any given week.  E.g., -- spoiler alert -- my first question concerned the biggest humorous line of the week: "binders full of women."

Of course, even though I successfully predicted my questions--and thus won Carl Kasell's voice on my voicemail, to be recorded soon!--before the show started I didn't know that I had predicted the questions correctly.  Accordingly, after learning on Tuesday of last week that I would be on the show, I spent a ridiculous amount of time studying the news of the week.  But still, I might have missed something and so I started thinking along the following lines: Suppose that while I'm on the phone playing the quiz, I'm also sitting at my computer and Googling any questions I don't know.  Would that violate the rules of the game?

Just to be clear, I did not set myself up to answer questions via Google.  I concluded that doing so would certainly violate the spirit of the rules, if not their letter, and while violating the spirit but not the letter of the rules of a game show is not clearly unethical (in the way that violating the spirit of the law against fraud or robbery would be, say), I decided against making the attempt anyway.  Nonetheless,  here I want to consider whether Googling the questions would have also violated an actual, albeit implicit, prohibition.  I'll relate that question to the dustup over Candy Crowley's having "fact-checked" Mitt Romney during the second Presidential debate.

So let's back up.  I became a contestant on the show by going to the website, clicking on the "email us" link, and providing some basic info.  A few days later I received a call from the show's producer, and after a little back and forth over timing, I was scheduled to be on the phone during the recording of the show.  There were no rules posted on the website nor did anybody tell me any rules.  Thus, so far as I was informed, I could have been sitting at my computer or had a friend listening in to the conversation and feeding me answers.

Would that have been implicitly in violation of the rules?  I think so but it depends on the background default.  Suppose I assign my students an essay to write.  I don't specify anything about collaboration with one another.  At Cornell, as at most universities, there are background rules about collaboration that apply by default, but let's put that aside.  Suppose the rules are silent.  What is the unwritten background rule?

Can students discuss their topics with one another?  If the essay is assigned as a "paper," I think the answer is yes, but not if it's assigned as a take-home "quiz" or "test."  Can a student get someone else to write her paper for her?  Pretty clearly not.  How about writing her own paper and then showing it to a friend for editorial suggestions?  Again, if the assignment is a paper, I think the answer is probably yes, while if it's a quiz or test, probably no.

Where do these background "rules"come from?  Pretty clearly they are social conventions.  Like most social conventions, there are purposes these particular rules serve, but there is an element of arbitrariness about them.  That is why sometimes problems arise for students who grew up in other educational systems which may have different conventions about collaboration and/or copying the work of others.  And that problem in turn explains why most universities do in fact tend to codify and distribute the rules about permissible and impermissible collaboration and copying: This informs students who are unfamiliar of the social convention so that they may conform to it and takes away a possible defense in the event that charges of violating the convention/rule is later made.

Now let's turn to last week's Presidential debate, during which moderator Candy Crowley "fact-checked" Governor Romney.  On the merits, I think this is a controversy over nothing.  Here's the relevant passage:
MR. ROMNEY: . . . I think it’s interesting the president just said something which is that on the day after the attack [in Libya], he went in the Rose Garden and said that this was an act of terror. You said in the Rose Garden the day after the attack it was an act of terror. It was not a spontaneous demonstration.PRESIDENT OBAMA: Please proceed.MR. ROMNEY: Is that what you’re saying?PRESIDENT OBAMA: Please proceed, Governor.MR. ROMNEY: I — I — I want to make sure we get that for the record, because it took the president 14 days before he called the attack in Benghazi an act of terror.PRESIDENT OBAMA: Get the transcript.MS. CROWLEY: It — he did in fact, sir.So let me — let me call it an act of terrorism — (inaudible) —PRESIDENT OBAMA: Can you say that a little louder, Candy? (Laughter, applause.)MS. CROWLEY: He did call it an act of terror. It did as well take — it did as well take two weeks or so for the whole idea of there being a riot out there about this tape to come out. You are correct about that.
The Romney campaign and its supporters have charged that Crowley departed from her role of impartial moderator here, although I didn't see it or read it that way at the time.  I understood Crowley to be saying that Romney was technically wrong if he was suggesting that Obama didn't use the word "terror" in his Rose Garden speech the day after the Benghazi attack but that Romney was correct in his big-picture accusation that the White House initially thought this was a spontaneous rather than an organized attack.  She was trying to help both candidates move on to their areas of real policy disagreement, rather than to quibble over what were Obama's exact words in a particular speech.

But let's suppose that Romney et al are right in their characterization.  Suppose for the sake of argument that the following exchange took place:
MR. ROMNEY: If I am elected president I will never do what President Obama did in 2010--and that is he took $50 million of taxpayer money and used it to buy crack cocaine, which he then distributed to pregnant teenagers throughout the United States. PRESIDENT OBAMA: That is a complete fiction.MS. CROWLEY: It is indeed a fiction Governor Romney.  You are referring to the plot of a novel about a fictional president, not actual events involving President Obama.
Supposing the accusation was indeed false (as of course it is), would there really be anything wrong with a debate moderator quickly pointing out that something one of the debate participants has just said is an out-and-out fabrication?  If so, it must be because of some unwritten social convention.

To be sure, the Memorandum of Understanding (MOU) signed by both campaigns and the Commission on Presidential Debates states that for last week's debate: "The moderator will not ask follow-up questions or comment on either the questions asked by the audience or the answers of the candidates . . . ."  So "fact-checking" was forbidden by the MOU.  But Crowley did not sign the MOU and announced in advance of the town-hall debate that she therefore did not consider herself bound by it.

Note too that the Romney campaign's core objection was not really to a violation of the written rules of the MOU anyway.  After all, Crowley (per her plan) quite clearly violated the MOU's prohibition on her asking follow-up questions; yet no one made a fuss about that.  Indeed, in the very passage quoted above (from the actual debate), Romney himself violated a rule forbidding the candidates from asking each other questions--and the Romney campaign did sign the MOU.

As I understand the Romney campaign's objection to the moderator's "fact-checking," it violated two unwritten social norms about debate moderators: 1) They should be neutral; and 2) they should be passive.

I think the neutrality norm for a debate moderator is well-established and generally accepted, but the passivity norm is not.  As Jon Stewart noted in his favorable commentary on Martha Raddatz's performance as moderator of the Vice Presidential debate, she was simply playing the role of good journalist in asking (each of) the candidates tough follow-up questions.

One can argue that a debate moderator should be passive, but that is at best a contested view of the best way that a debate moderator should perform.  And so, even though some right-leaning commentators have floated the notion that any active interventions by a moderator are contrary to role, absent the violation of specific rules to which a moderator agreed, that objection lacks bite.

The better objection would be that Crowley and/or Raddatz violated the neutrality norm.  But focusing just on Crowley, that hardly seems clear, even if we assume the one-sided intervention I've hypothesized.  Neutrality does not require treating the candidates identically.  It requires treating them fairly.  To take an extreme example, if one candidate consistently went substantially over time and the moderator consistently attempted to rein that candidate in, this would not be favoritism towards the other candidate; it would simply be neutral enforcement of the rules.

The complaint that Crowley fact-checked Romney but not Obama is thus a little bit like a basketball coach complaining that the other team shot twice as many free throws as his team; that doesn't reflect unfairness if the coach's team committed twice as many fouls.

Hence, in the end, it is hard to credit the Romney campaign's complaint about Crowley unless one thinks that she systematically intervened to correct misstatements by Romney but gave Obama a pass on comparable, and comparably frequent, misstatements.

I'll just conclude by saying that I see no evidence of such a pattern by Crowley or the other moderators. I do think, however, that the very question will inevitably be seen differently by partisans of the different candidates and thus, as a matter of prudence if not fairness, it's probably best for a moderator to avoid fact-checking even the most egregiously lying candidate.

Friday, October 19, 2012

Context-Free Facts

-- Posted by Neil H. Buchanan














Thursday, October 18, 2012

The Last Two Weeks of the Campaign Are Directly Ahead: Cue the Liberal Populism

-- Posted by Neil H. Buchanan

Because I write my Dorf on Law posts on Thursdays and Fridays (with occasional exceptions), I have devoted my posts in the last two weeks to writing immediate responses to the first Presidential debate and the Vice Presidential debate (which took place on a Wednesday and a Thursday, respectively).  I have sequestered myself from the media chatter, offering unadulterated analyses of the debates, focusing on the candidates' discussions of the actual issues.

It has been a painful experience.  Thankfully, this week's Presidential debate took place on Tuesday night, leaving me free not to watch the debate.  (And Professor Dorf quite rightly passed on writing about the debate yesterday morning.)

I have thus spent the last day or so watching and reading the bloviatiors' reactions to the debate, as well as various clips from the debate.  I have discovered that Obama was quickly deemed the winner, rather conclusively.  Because I am supporting Obama in this election, that news is obviously better than it was two weeks ago.  Given the absurdity of the entire exercise, however, this is sort of like cheering when my team wins the coin toss at the beginning of a football game.  Yes, it is nice to see your guys win and the other guys lose; but it is not based on anything meaningful.

Romney did manage to live down to my low expectations of him, again asking us, in essence, "Would I lie to you?"  Responding to claims that his tax proposals do not add up, for example, he basically said: "Of course they add up!  I'm a businessman and a former governor who has balanced budgets.  I know how."  In other words, he does not need to prove that his numbers add up.  He only needs to insist that he is an able and trustworthy person who is offended by the suggestion that he is not telling the truth.  Would he lie to us?

The media narrative about Debate 1 is still insane, of course, and actually becoming more so.  An NBC news article actually said that Romney "ran rhetorical rings" around Obama.  Seriously.  Even the editors of the New York Times, in praising Obama's perfomance in Debate 2, ended with this head-scratcher: "Voters who watched the first debate might have been left with an impression that Mr. Romney was the candidate of ideas and that Mr. Obama’s reserves of energy and seriousness had been tapped out. On Tuesday night, those roles were reversed."

Romney was the "candidate of ideas" in Debate 1?  That is not even consistent with the narrative by which Romney supposedly won that debate.  It was not that he had ideas, but that he showed up and seemed a lot more interested in the proceedings than Obama did -- and, not incidentally, lied from beginning to end.  Romney was supposedly "commanding."  But now, after only two weeks of gestation, even left-leaning sources are completely revising the history of that debate.

What is now emerging from the second debate, however, is a notable change in tone in the campaign, especially from Obama's side.  Some of the debate's most-discussed moments include Obama's successes and Romney's failures in dealing with what might be called liberal populist issues.  Whereas Romney had been having some success making populist-sounding appeals that amounted to simply asserting that he has a plan to create jobs and balance the budget (and, apparently, to give cotton candy to all the good little children of the world), Obama was able to end the debate with an attack on Romney's "47% comments" -- comments that, as Obama cleverly described them, were made "behind closed doors."

The nationwide laugh-fest surrounding Romney's clumsy comments about "binders of women" is based on something much larger than his poor choice of words.  And his comments on immigration are also sure to lose votes.  Which means, again, that this has been a good week for Obama's supporters, and a bad one for Romney's.

A little more than a year ago, I coined the term "last two weeks strategy" to describe the common pattern in Democratic Presidential campaigns from 1976 onward.  Wherever the political center has been in any given election year, the Democratic nominee has spent most of the general election campaign trying to find it -- and, in many instances, move to the right of it.  For example, in 2000 Al Gore bizarrely distanced himself from his signature issue, environmentalism, in an attempt to seem non-liberal.  (As a longtime member of the right-leaning, anti-union Democratic Leadership Council, he did not have many liberal stands to repudiate.)

Late in each campaign, the Democratic candidate would need a boost.  Michael Dukakis in 1988 had blown a huge lead, and would ultimately lose.  Gore could not get traction against a then-unbelievably weak candidate.  John Kerry in 2004 needed to find something that could wake up his audiences.  In each election, the Democrat would suddenly rediscover his party affiliation in the last two weeks or so of the campaign, bringing out huge crowds and moving the polls in his direction as the campaign came to a close.

As I argued last year, this is not merely a matter of rallying the base.  It is, instead, the result of a series of center-right candidates who have never been comfortable with liberal positions, but who suddenly discover that those liberal positions are actually quite popular and can be politically effective.  This is unlike the Republican candidates, who (like Romney) try to distance themselves from their party's core extremism right through election day, because general election voters generally find that stuff scary.

In this election cycle, the pattern had changed somewhat.  Predictably, Obama had misspent most of his Presidency trying to move to the right of center on nearly everything (including, it is now important to remind ourselves, health care reform).  Coming out of 2011's debt ceiling debacle, however, Obama seemed to have rediscovered liberalism (or, at least, non-Tea Party-ism) early in the election cycle.  Obama thus took on a much more aggressive tone, and by the end of 2011 was sounding like a progressive Democrat again. (In the words of the NYT Editorial Board: "[Obama] made it clear that he was finally prepared to contest the election on the issues of income inequality and the obligation of both government and the private sector to enlarge the nation’s shrinking middle class.")

I was thus left wondering at the time whether Obama would run a 12-month version of the Last Two Weeks Strategy.  That possibility was quickly snuffed out, however, as Obama cruised through the first nine months of 2012 looking like he could win re-election on the basis of Romney's weaknesses.  By the time the calendar turned to October, Paul Krugman was warning about moves afoot among (over-)confident Democrats to betray the referendum on protecting Medicare and Social Security that this election might have been.

All of that changed with the first debate, and the nearly universal overreaction to Romney's perceived (and entirely content-free) "win."  Now, we really are in the last few weeks of the campaign, and Obama is in the same nail-biting situation that his predecessors have faced.  And what is working?  Liberal populism, of course!  If Obama pulls this off, it will be because he rediscovers the Last Two Weeks Strategy in the final weeks of the campaign.  That will still not stop him from trying to betray us later, but it will be powerful ammunition for those who will try to remind him how he managed to win this thing.

Wednesday, October 17, 2012

Fisher v. UT and the Baby Bear Interpretation of Strict Scrutiny

By Mike Dorf

There's an old joke that is retold by Woody Allen (as Alvy Singer) in Annie Hall:  Two elderly women are at a Catskill mountain resort, and one of them says, "Boy, the food at this place is really terrible." The other one says, "Yeah, I know.  And such small portions."

Allen uses the joke as a metaphor for life, but it also bears on a peculiar aspect of Fisher v. University of Texas, which was argued in the Supreme Court last week.  One of the arguments advanced by the plaintiff is that the university does not need to supplement its formally race-neutral admissions procedures with a partly race-based admissions procedure because the race-based procedure only adds a small amount of racial diversity to the entering class.  To which one wants to say: Isn't the fact that the university minimizes the use of race a virtue of the program, rather than a vice?

During the oral argument in Fisher last week, Justice Kennedy in fact pursued exactly this line of questioning with the plaintiff's lawyer.  Here is Justice Kennedy, talking to Fisher's attorney Bert Rein (with my having eliminated some extraneous material): 
KENNEDY: You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem? Then let's assume that it resulted in the admission of many minorities. Then you'd come back and say, "oh, well, this shows that we were probably wrongly excluded."  I see an inconsistency here.  Are you saying that you shouldn't impose this hurt or this injury, generally, for so little benefit; is that the point?
Mr. Rein endorsed Justice Kennedy's proposed answer to his own question and then offered a second answer, which was really parasitic on the first: He said that the university could achieve the same level of diversity with race-neutral means.

Is that a persuasive answer?  I'm not sure.  Justice Kennedy is surely right that under the test that the plaintiff proposes, there is a damned-if-you-do-damned-if-you-don't quality to the situation faced by a university.  But that may be a general feature of strict scrutiny, which, at least in principle condemns suspect means that are either over-inclusive or under-inclusive.  Consider RAV v. City of St. Paul, a case in which the majority, per Justice Scalia, struck down a hate-speech ordinance as applied to cross-burning on the ground that the ordinance impermissibly singled out a content-based category of "fighting words" for criminalization.  That prompted Justice White, in a concurrence that was a dissent on this point, to object that under the majority's view, the City of St. Paul's ordinance would have survived First Amendment scrutiny if only it forbade more speech--a proposition that Justice White apparently believed was self-evidently mistaken.

I share Justice Kennedy's concern in Fisher and Justice White's concern in RAV, but I think that they both misapprehend how these odd results simply follow logically from doctrinal tests that condemn laws on grounds of under-inclusiveness no less than on grounds of over-inclusiveness.  And insofar as the condemnation of some forms of under-inclusiveness simply gives effect to an aspect of the principle of equality, their concern is misguided.

Equality principles--whether under the Fourteenth Amendment's Equal Protection Clause, the First Amendment's prohibition on content-based regulations of speech, or other doctrines--demand a sort of "Baby Bear" approach: Too much is problematic; too little is problematic; the Constitution demands that if the problematic criterion is to be used, it must be "just right."  Or, to use the Court's metaphor of narrow tailoring, if the suit of clothes is too loose or too tight, it will fail.

So, in the end, although I believe that the University of Texas should prevail against Fisher's challenge, I think the irony that Justice Kennedy observes is simply an irony and not a contradiction.  For my further thoughts on the oral argument--zeroing in on the new prominence of the "critical mass" rationale for affirmative action -- check out my latest Verdict column.

Tuesday, October 16, 2012

Against Debate

By Mike Dorf

Regular readers of this blog will have picked up that Professor Buchanan does not find the Presidential and Vice Presidential debates enlightening -- to say the least.  (See posts here, here, here, and here).  I agree and am thus not looking forward to tonight's debate, except perhaps as a way to avoid watching Yankee after Yankee strike out against Justin Verlander.  (Speaking of expectations, you know you have reached some sort of low point when you are grateful that one of your prime sluggers merely strikes out rather than hitting into a double play.  But I digress.)

I share Professor Buchanan's dismay both about the substance of the debates and the way in which the "who won" question focuses on nonsense: Who sounded like he would appeal to swing voters?  Who looked more presidential?  Etc.  After the first debate, there were some efforts to fact-check the candidates, but these were predictably drowned out by the coverage of "who won."

The problem may go beyond any particular format.  At least since ancient Athens, astute thinkers have criticized rhetoric.  Plato's Socrates exposes the emptiness of rhetoric in Gorgiasjust as Aristophanes, some years earlier, had (somewhat unfairly) parodied Socrates himself as a sophist in The Clouds. To oversimplify a bit, both Plato and Aristophanes called into question the power of fine speech to reveal the truth.  On the contrary, each suggested that rhetoric more likely obscures the truth.

Formal debates exacerbate the problem because they divert attention from the merits of the positions espoused by the debaters and bring the focus on their debating skills.  Some years ago, Judge Alex Kozinski wrote an essay titled In Praise of Moot Court - Not!   In that essay, Judge Kozinski decried the artificiality of law school student moot courts.  Having to choose a winner based on who did a better job, moot court judges must try to discount their views on the merits.  In this calculus, one can lose the argument and still win the moot court, if one outperforms what the judge expects given the judge's view of the merits.  Judge Kozinski's proposed solution was to have judges (mostly) vote their actual preference for the outcome.  It didn't catch on, perhaps because of logistical obstacles, but his critique captures a real deficiency in competitive debate.  By design, it measures who does the better debating, rather than who had the stronger argument.

One would expect something different in a Presidential (or Vice Presidential) debate.  After all, notwithstanding Judge Kozinski's critique, the point of a moot court or a collegiate debate is for the participants to hone their skills.  It is a competition and accordingly it is understandable that the rules are structured to judge the contestants based on their skills, independent of the merits of the particular case (or resolution, in a debate).  By contrast, in a debate between candidates, no one should really care who does a better job debating.  It is not as though the president is ever in a setting in which he must rely on his formal debating skills to persuade foreign leaders to side with the U.S. rather than the debater for the other side.

Indeed, the very idea of, say, a formal debate between the U.S. President and a foreign leader on some policy issue is far-fetched.  The closest we have come to anything of the sort was the "kitchen debate" between (then VP) Nixon and Kruschev.  It was a short, frank, extemporaneous discussion about the relative virtues of communism and capitalism.  Nixon and Kruschev disagreed but part of what made for compelling viewing was the very fact that it wasn't a debate.  Each leader was playing to the crowd and to tv viewers (in both the US and the USSR) but precisely because there was no formal debate structure, the tendency of the exchange was to invite viewers to ponder the actual questions: Can communism really compete with capitalism in the production of consumer goods?  If not, does that make capitalism the superior system?  The question of "who won" the kitchen debate is inextricable from the merits of communism and capitalism in a way that the question of whether Romney or Obama "wins" tonight will likely not be inseparable from the virtues of their likely respective policies.

Both Professor Buchanan and I had a fair bit of success as competitive debaters in our youth.  It was fun.  It was pretty good practice for law school and lawyering.  But it didn't resolve any of the issues about which we debated.  It wasn't even about those issues.  Tonight's "town hall" debate mostly won't be about the issues it purports to be about either.

Monday, October 15, 2012

And What About Masochistic Children? (Guest Post by Antonio Haynes)

Today's guest post is by Antonio Haynes, currently a Visiting Fellow at Cornell Law School. 

And What About Masochistic Children?

By Antonio Haynes

In my guest column today on Verdict, I discuss the recent controversy in Texas surrounding a male vice principal’s corporally punishing two female students.  In the column, I argue that the perceived “creepiness” of a male administrator paddling female students stems from a widely held, but often unstated assumption that eroticized violence is deeply problematic.  I conclude that when they implicitly raised the possibility of sadistic school administrators, the girls and their mothers tapped into an insidious fear of sexual deviance that completely distracted the conversation from the real issue at hand—the tremendous levels of actual violence that corporal punishment necessarily entails. 

To highlight the way in which the unstated assumption about eroticized violence operates, I offered a “bizarre” hypothetical school-board policy that would require that school officials of a different sexual orientation spank students.  “In other words,” I said, “it would be permissible for a lesbian to paddle heterosexual male students, for a homosexual male to paddle heterosexual female students, for a heterosexual woman to paddle gay male students, and for a heterosexual male to paddle lesbian students.”  

Careful readers immediately notice that the examples I give do not remove the possibility of eroticized violence.  For instance, it would still be “creepy,” to allow a heterosexual male to spank a lesbian student, because the lesbian student is a female, the sex to which the heterosexual administrator is attracted.  The only way my hypothetical policy could actually remove the possibility of sadistic school officials deriving sexual pleasure from paddling students would be for the policy to require consideration of the sex and sexual orientation of the school official.  Stated differently, the reformed hypothetical policy would necessarily require that derelict girls be beaten by either gay male or straight female administrators.  Similarly, miscreant boys would have to be paddled by lesbians or straight men.   

I intentionally framed the hypothetical in this way.  In my view, the hypothetical policy subtly acknowledged the manner in which the identities of gay, lesbian, and bisexual school officials are not adequately accounted for in debates about the interactions between school officials and students of different sexes.  If it is it is true that opposite sex spankings cause a fear of eroticized violence, then failing to account for differences in sexual orientation only exacerbates the possibility.  Further, both the original and reformed hypothetical policies completely elide the identities of gender nonconforming or transsexual administrators. 

But another, more overlooked, reason that both the original and modified hypothetical policies fail to adequately remove the possible “creepiness,” of spanking is that both policies fail to contend with the fact that the corporal punishment might arouse the students.  Recall that here, the students were older teenagers and that at least one of them chose paddling over in-school suspension.  Despite societal unease with adolescent sexuality, we know that many older teenagers regularly engage in sexual activity.  We also know that, despite the strongly held opprobrium that attaches to eroticized violence, many individuals freely admit to practicing sadomasochism.  Taken together, these statistics suggest that a not insignificant fraction of perfectly “normal” older teenagers are sexually activity and practicing sadomasochism.  The possibility of a sadistic school administrator deriving sexual gratification from beating students is just as likely as the possibility of masochistic students who seek sexual pleasure in being beaten. 

To be clear, I am not suggesting that either homosexuality or interest in sadomasochism represent sexual deviance.  Neither sexual orientation nor deviance ought to “be thought of as a kind of natural given which power tries to hold in check, or as an obscure domain which knowledge tries gradually to uncover.”  But the failure to openly acknowledge the myriad reasons for our possible discomfort with corporal punishment highlights the impoverished nature of our discussions about teens, sex, and sexual orientation.  This failure is itself a distraction because it hinders correction of our sexually dysfunctional society while simultaneously entrenching real violence.  This is not a course we should take.