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Mirror of Justice
I'm sitting in a hotel room in Kankakee, IL - or rather, was when I started typing this, I'm back home now - about an hour south of Chicago, where Federalist Society folks from across the nation gathered this weekend for a symposium on "law and morality." This post will give a brief overview of the proceedings, interspersed with a few notes, photographs (click for larger versions) and observations from yours truly. I have 26 pages of notes, so for the sake of most readers, I'm going to try to keep it (as) brief (as possible), and stick the whole lot beneath the fold.
Still: if you're a federalist, or interested in this sort of stuff (or really, if you just want to know what I look like), click in...
(Let me apologize in advance: I've tried to quickly get this into a presentable form, and it has shortcomings - so the disclaimers on this post are twofold: I'm sorry if it isn't always clear when I'm speaking for myself and when I'm just reporting what panellists said, so before you flip out and verbally flip me of, just ask for clarification. And as a corollary to that, when I'm reporting on what the panellists have said, I haven't extensively fact-checked their assertions, so before you flip out and tell me that St. Augustin never said that, or that Redrup said no such thing, keep in mind that I'm reporting here.) Lastly, this post is very long (7000+ words) and was authored while on the road, with only a quick review to avoid egregious errors. There are typos. I've made my peace with that, and I hope readers will be understanding about it.
For reasons too long and boring to outline, I skipped the opening day and showed up Saturday morning, where the fun opened1 with a panel on morality in the Eighth Amendment context.
Judge Tim Tymkovich of the Tenth Circuit moderated, and offered some opening remarks. Referring to Trop v.Dulles' elucidation of what has become the standard test ("[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"): "grandiose and important words, but what do they mean?" Quite! Tymkovich sketches a few areas where the debate is progressing. The demand for the quality of evidence required to convict in capital cases has gone up; the number of executions has gone down (in 2006, there were 53 executions and half of those were in Texas). Tymkovich seems to connect the two, although I'm not sure that doing so makes much sense - I'm not sure what the average death row stay is, but it certainly isn't less than eight years, and the primary arena for standard of evidence to convict (which I take to be offered in contradistinction to "to uphold a conviction on appeal"), one would think, would be the trial stage. So increasing rigor in evidentiary demands, one would think, would show up in a drop of capital sentences handed out, not executions carried out.
Tymkovich also notes that in terms of the methodology of execution (I know, it sounds macabre): there have been a string of habeas and § 1983 challenges to lethal injection, but it's important to note the level of generality: these are challenges to the protocol, not the underlying constitutionality of the death penalty per se, or even of lethal injection per se. The Supreme Court has been dodging the bullet on this one (SCOTUSblog's Jeff Goldstein had a very strong test case lined up last year, IIRC, but the court denied cert, and the Hill case that got everyone flustered was a procedural issue not on the merits).
Lastly, Tymkovich suggests that a number of the new crop of Governors have expressed deep discomfort about the death penalty (for example, the new Governor of MD called it "inherent unjust," and the paradigm example of the possible consequences of this may be akin to the mass commutation undertaken by Gov. George Ryan. My thought would be that, doesn't this suggest a possible way to force a public accounting - if a gubernatorial or presidential candidate suggested that they would commute all capital sentences to life imprisonment, it'd be interesting to see what happened to that candidate. My guess is that they'd disappear without trace.
Laurence Claus of UCLA is up next. He stresses that the Eighth Amendment must be understood to have taken its language from the 1689 English Bill of rights, and suggests that at very least, our understanding of its content can be informed by understanding the evils that the framers of the 1689 bill were attempting to address. In the main, says Claus, that concern was of arbitrary and repressive behavior by the king's judges - ludicrous fines and bails, and punishments imposed that were not within the norms provided for by the common law.
There are three principle interpretations of the cruel and unusual punishment clause, he suggests: that it requires proportionality (but see discussion next paragraph), that it refers to the viciousness of the method (which is the position he attributes to Scalia), or that it forbids invidious discrimination in its application to different individuals. The Supreme Court, suggests Claus, will use any and all of these depending on the case - compare, for example, Harmelin with Atkins.
Claus also makes the surely standard point that the very absence of lengthy debate about the meaning of "cruel and unusual" in the amendment's legislative history, suggests that its meaning was so clearly understood as to require no debate. I'm never sure of the valence of that argument to nonoriginalists, but I tend to agree with him. Discussing proportionality in sentencing, he made a neat textual point that the 8th Amendment forbids excessive fines, excessive bail, but cruel and unusual punishments. Moreover, it interests him that to some extent (not so much as he suggests, I think), that "excessive" fines or bail can be measured empirically, because they operate not as absolutes, but relative to the capacity of the condemned to pay up, while of course proportionality in other punishments necessarily gets us into difficult moral questions that have no clear standard.
Ron Allen served up some interesting thoughts, so much so that it was very difficult to remember to keep taking notes! Most of what I kept was bite-size; Allen observes that most of "what passes for normative analysis in legal scholarship is little more than an exercise in mapping the topography of the author's mind." Normative views are, by definition, subjective, which makes it hard for courts to use them, because courts are supposed to rely on rational reasoning. Still, judges may ultimately fall back on moral reasoning when other sources of law run out before the case is decided, and that isn't inherently problematic, unless what's happening is that the case hasn't run out of applicable law, but the applicable law cuts against how the judge wants the case to come out. As a general rule, he thinks that regardless of the legitimacy of the matter, there's a utilitarian benefit to letting legislatures decide moral issues, which is that it's easier for a legislature to change its minds.
Allen is also concerned about the existence of fundamental moral truths - most of what we regard as fundamentally moral is a subjective position not shared by the rest of the world (for example, that outright subjugation of women is bad), and that historically, very bad things happen when people who claim to be in possession of ultimate moral truth obtain political power.
Lastly, I loved this Allenism: "cats are a demonstration of the perverse sense of humor of nature." Love it!
At this point, I slipped out for a minute2On my way back to the theater, though, who should I find at the breakfast buffet? None other than Judge Diane Sykes (see adulatory posts passim); there was a moment where I think I just stood there, mouth slightly agape, trying to figure out if the person before me was actually who I thought it was. This was particularly neat, because one of the tiebreakers that persuaded me to register was that she was listed as a speaker (moderator, actually, but that wasn't clear at the time); I'd hoped to have a chance to at least say hi,3 but as luck would have it, we got to stand around and talk for a while, which was easily the highlight of the whole event for me. I will have to send a thankyou card to Michael Moore. ;)
And no, in the end, I couldn't resist a moment of David Lat-style groupie-ism:
(I make no apologies on this one - she's much learned in the law, a rock star of the federal judiciary, someone I consider to be in the top draw of potential SCOTUS nominees, and to top it off, she's very nice and was frankly the best looking woman in the building [no mean feat - see footnote 1]. And lookit, I figured that if I didn't ask, I'd kick myself later).
So what was Sykes doing at the gathering - her first FedSoc student symposium since she attended one of the very early ones as a Marquette law student herself, if I understood right? Her task today was to unflappably moderate the discussion of the inflammable topic of gay marriage. This was a two-member panel, starring Amy Wax and Robert Bork lookalike Loius Michael Seidman.
Wax's position seems to be very similar to what troubles me about gay marriage: a kind of Burkeian-Oakeshottian concern about what we're unleashing. She begins by explaining the premises of Burke and Oakeshott (necessary at FedSoc gatherings, since not all attendees are that way inclined - plenty of libertarians and some liberals here), which I take it requires no exposition here at SF. Wax notes the dissonance between elite opinion on gay marriage and massive popular hostility to it; unlike the abortion debate, suggests Wax, where the elite is generally pro-choice but the people are evenly split, on gay marriage there is a clear disconnect. Her friend Linda Greenhouse suggested to her recently that "there exists not a single, solitary argument against legalizing gay marriage," remarks made against the backdrop of constant and sustained rejection by the people.
What could cause opposition? Wax dismisses homophobia, and suggests that while there might be sound religious reasons to oppose it, a secular case is necessary. She builds that case around the Burkeian concern for massive social upheaval and the utility of the traditional family in raising children. She suggests that students from a liberal background often find the idea of the moral role of social institutions alien. Marriage, she suggests, is a social institution that acts as a heuristic, a guideline, a script for how to make close relationships work. Stick to the script and you can't go far wrong, and moreover, not only does one not HAVE to devise a new script out of one's mind, conservatives are skeptical that people CAN do so: we are, Wax thinks, deeply mistrustful of moral innovation, and I think she's probably right. Contrast the liberal view that life is an a la carte menu (my characterization, not Wax's), and so who's to criticize what's on anyone else's plate. Wax isn't satisfied by that liberal answer; she suggests that two infirmities dog it. The infirmity of intellect means that people simply cannot canvas all the consequences of decisions that they make, especially to the extent these choices affect other people. And the infirmity of will, which goes to the instrumental value of morality: it is a code that restrains people from doing what they want, which may be selfish and may be destructive. (in a Doctor Helen-provoking aside, either Wax said or I thought I heard her say that more specifically, it restrains the actions of men).
On the topic of childrearing, Wax also suggests that a parallel example is single motherhood: statistically speaking, single parent families and reconstituted families are a disaster (she asserts), and in vast disproportion stock the ranks of the malcontent. The experiment has been a disaster, but in order to get the empirical data that shows it was a disaster, we had to let out of the bottle a genie that we might not be able to put back. Ultimately, Wax presents three arguments against same sex management, none of which I find convincing: (1) the procreative function: same sex marriage simply can't meet the gold standard of a biological family; (2) the role of sex in defining marriage - failure to consummate the marriage was once grounds for annulment; (3) the presumption of monogamy in marriage - while it's one thing to lapse, it's quite something else to disavow, and gays like Andrew Sullivan (Wax says) have equivocated about whether they accept monogamy in that context).
Seidman begins by agreeing with Justice Scalia that Lawrence and similar cases implicate contestable moral values. Unlike Our Hero, however, Seidman, doesn't see why that's objectionable, and argues that moral judgments are inevitable (cf. remarks by Allen, discussed supra part I(c)). Equal protection demands making moral judgments, in his view. The equal protection clause requires us to treat two people alike to the extent they're alike, but also to treat them differently to the extent they're different. Gay marriage poses a problem of knowing which is which.
He describes his starting point on the question as being the tremendous damage done to individuals by insisting on adherence to a script - to put it in Wax's argot - that doesn't always work for some people. Some people can't or won't follow the script, and demanding that they put a round peg in a square hole creates massive unhappiness (for some reason, this reminds me of "Why Mommy is a Democrat" (vivisected here by Ann Althouse - I think I'm getting the connection from an image of liberals, like an overprotective mommy, wanting to make a world where no one is unhappy or hurt or has to do things they don't like, to make it all better). Pivoting from marriage, he asserts that gay sex is in fact a positive good, because it is a subset of sex, and sex is good, because sex is pleasurable, and because pleasure is good ergo, gay sex must be good. But more, even, than that: done right, it's pleasure shared, so if pleasure is good, shared pleasure is even better. And even more than that, gay sex suggests what sex might be like when severed from pervasive gender hierarchies;4 to explain this, he relates an anecdote where a handsome young man asked to make an announcement at the beginning of the lecture, which turned out to be that for valentines or charity, something like that, a group on campus would deliver roses for students. A flamboyantly gay member of the class stood up and asked: "what do you need in order for a delivery to happen?" "Just the name of the recipient." "Well," said the class member with a grin, "what's your name?" Everyone in the auditorium laughed, but Seidman's observation was this: what if the person standing at the front of the class had been a yhoung woman, and the young man standing up were, y'know, one of these big macho hetero guys. Seidman doesn't think anyone would have laughed, and he envisions delegations going to the Dean's office (he's probably right about this).
(Don't worry if you're not following how this relates to the subject at hand - neither did most of the auditorium, but it was great fun to watch).
He also adds that he finds it bemusing that conservatives are afraid of courts legalizing gay marriage - Lawrence, after all, constitutionalized the one-night stand. Why would conservatives prefer casual sex to be constitutionally protected and not long-term relationships? I'm going to be charitable and assume this was trying to be provocative, rather than shockingly naive.
A couple of interesting points from rebuttal time and questions:
Lunchtime featured a frank discussion about dos and don'ts if you intend or would like to be a lawprof with Volokh Conspirators Randy Barnett and Orin Kerr. Most of this is of limited interest to readers here, and particularly since Randy intimated at one point that at least some of his remarks were off the record, my thought about this section is as follows: I have a couple of bullet points that I think do merit reposting,
and I'm going to email Randy and Orin and seek permission to repost those. Check back later. [Update: with Randy and Orin's permission:]
The casual reader might think that the panel on "government promotion of moral issues," featuring Profs. Lillian BeVier Marcus Cole, Steve Lubet and Lino Graglia,5 and moderated by the very dapper and much-revered Prof. Steve Calabresi would be of particular interest to me (I have, after all, asserted in the past that there is little legislation propounded on any basis other than morality, no matter how deeply it's buried under the language of reason). And indeed, I would have been, but unfortunately, I was more interested in listening to Orin and Randy at the one part of the conference I can't blog about, and realized after having done so that I had a powerful need to eat. Having arrived late to this panel, I strained to get into it, but I have a couple of notes from remarks by BeVier and Calabresi.
BeVier observes that if any part of the Civil Rights Act might have been thought to be uncontroversial, it'd be Title II's public accommodations provisions, but at the time, it was condemned as an attempt by government to promote a moral value, and its opponents noted that you can't legislate virtue. It might be true, says BeVier, that you can't legislate morality, but you can ban immoral conduct, and doing so is so overwhelmingly effective6 that it amounts in practice to succesfully legislating morality. I guess there's something to that; after all, the purpose of law is to restrain a man's conduct, not the content of his heart, and once public conduct has been conformed to a certain standard for a generation or two, new generations start out not only pure of deed, but pure of heart. In the aggregate, at least.
Or, BeVier suggests wryly, do opponents of government-sanctioned morality ultimately have to punch the escape button when it comes to the Civil Rights Act, and claim, as the Supreme Court concluded, that it's purpose wasn't to regulate virtue at all - it regulates interstate commerce. That provoked an massive and knowing-sounding laugh in the theater.
BeVier discusses the problem of government both endorsing and condemning, represented by vice taxes - smoking being the paradigmatic example, or in some states, gambling, which government condemns, and claims to be taxing to discourage, yet which provides a revenue stream that the government depends on. This attempt to have it both ways is hard to justify, and she concludes by discussing abortion in this context: in the case of abortion, government both encourages and discourages, but here, government is not a unitary entity: the Supreme Court has sanctioned virtually limitless access to abortion while the democratic branches have sought to limit it. Must the tension be resolved by the democratic branches giving in? For those who believe abortion to be murder, that would be immoral, says BeVier.
A couple of notes on Calabresi's presentation.7 Calabresi identifies three areas of concern with government promotion of morality. (1) Efforts by government to promote morality by law tend to give prosecutors excessive power, because it will be within their discretion to prosecute or not. (2) Such laws will be disobeyed, which contributes to a decline in the credibility of the law - similar to the broken windows theory of neighborhood decline, when minor laws are not taken seriously, and are chronically ignored, the law itself begins to be taken less seriously, and more major laws get broken. I agree with this, although I think it has wider application than Calabresi would perhaps agree with - certainly, the most persistent and chronic thorn in the seriousness of the law is absurdly unrealistic speed limits which are routinely flaunted (part of my drive home is on an interstate-quality state highway, where the speed limit is a ludicrous 55mph. As I was driving down it at 65, a car doing I'd guess 70, which seems the sensible speed for such a road, crawled into my rear view, gradually made ground on me, and overtook me, disappeared off into the distance. Well and good, but it was a cop, I saw as he pulled past me!), but this same principle would seem to carry all the way to the chronic failure that represents the "war on drugs," a policy I believe that Calabresi supports (I could be wrong on that, though). And (3) individuals breaking the laws may not know that their conduct is illegal (this last point seems to reach a little).
Calabresi acknowledges that these are problems, but is concerned that decriminalizing so-called "victimless" crimes will lead to a flood of self-damaging behavior. He seems particularly fond of his example of consensual dueling. Moreover, he suggests, since the idea of law being rooted in morality is so deeply-imbedded in the American psyche, some people might think that because a behavior is tolerated, it's endorsed (cf. Wax, supra part III(c)(1)). Calabresi also wonders aloud that if we take the Clintonian view of abortion seriously ("safe legal and rare"), why wouldn't there be broad bipartisan support for government running informational campaigns about abortion and adoption, just as it does against smoking? Those campaigns have been very successful in making smoking - if not safe, and while already legal - more rare than it was before.
In question and answer, Cole suggests that he has a problem with government propaganda campaigns - up to and including Got Milk? - because when government does so, it spends money that it can only obtain by taxation, and when Cole disagrees with the message, in essence, by using a portion of the fruit of his labor to promote a message he doesn't agree with, the government has enslaved him. That seems absurd to me - as it did to all the panelists - insofar as it would apply equally to all taxation for all purposes, including those within those that all would agree are the traditional and inherent functions of government. Or at least, it's absurd as an argument against government promotion of moral issues, although it might be a good argument against taxation, and might provide a useful way of delineating the role of government if we could all agree on the level of abstraction from pure moral views required before government can act.
Lastly, the symposium turns to "the morality of First Amendment jurisprudence," starring profs. Andrew Koppelman, John McGinnis (whose office door left me starstruck this morning, see supra) and Geoff Stone, and Phylllis Schlafly, all moderated by ringmaster Orin Kerr. It becomes rapidly apparent that this panel has mostly chosen to focus on pornography in particular.
Schafly goes first, and decries the Warren Court's evisceration of laws against obscenity. Pornography is not protected by the first amendment because it isn't speech (cf. discussion infra part VI(b)) She suggests that Hollywood used to police its own conduct, but that following the Supreme Court's decision in Roth v. United States, as Charles Rembar describes in his book The End of Obscenity, pornographers specifically targeted Justice Brennan, asking him to change the way he formulated his test, a strategy that finaly paid off in Redrup v. New York, which opened the floodgates to a large number of consecutive cases striking down obscenity laws. She cites Maises v. Ohio as emblematic: a raw exercise of judicial authority, says Schlafy, the entire opinion of the court - decided per curiam, suggesting that no justice could bring themselves to put their name to it - simply declared the ruling of the court below affirmed and cited Redrup without further reasoning. This is not how courts are supposed to work; the case history is missing, as is the reasoning; the result is that the facts of the case are concealed from the U.S. reports, and so to find out what the court was actually doing, one has to search out the decision below, a much harder task.8
Koppelman goes next and does a masterful job of presenting Schafly's ideas as being of kin with anti-pornography feminists, animated by concern for the damage done to women by porn. I tend to agree, but I suspect Koppelman is damning with faint praise (it's a clever manouvre, and it works). While porn doesn't empirically exacerbate violence, violence is not the only way in which men abuse women; porn contributes to the creation of a culture in which women are overly-sexualized in a commodified and debased way (anyone who doesn't think this is true hasn't turned on MTV lately), which forms the context in which men are socialized and attitudes develop. Quoting Schlafly: "the unthinkable becomes not only thinkable, but even desirable." Quoting Rosseau: "men depend on women for their desires, but women depend on men for their desires and their needs." The problem with porn is that it corrupts the culture, in which men are then socialized into patterns that are indifferent to or actively hostile to the needs and interest of women. Rifffing on a comparison to prohibition: "porn is less like the salloon and more like the molecule alcohol." Ultimately, he agrees that porn is a problem, but disagrees that government should suppress it.
Geoff Stone is up next. He thinks the concern about porn is somewhat overblown, and that labeling it as evil seems absurd in a world so filled with actual, veritable evil. Stone wonders: if there was no doctrine of obscenity, why and how would we create one? Why do we want to suppress obscenity - because it might encourage bad behavior? Many things encourage behavior that is bad, but that we wouldn't ban (my example in the margins "after marcottegate - blogging?"). Alluding back to Koppelman's observation about the unthinkable becoming thinkable and even desirable, he concedes that in a world where pornography is so explicit and so readily available, perhaps people will be more likely to try (or to desire to try) oral sex or anal sex when they wouldn't have done so before, had the thought not been called to mind directly or indirectly by porn, but so what?
Stone suggests that maybe another approach is to observe that some forms of speech are less valuable than others - fighting words, for example, or commercial speech. But the test Stone proposes goes to what speech is; he proposes a legal fiction in which threats, for example, are speech in form but coercion in fact, and thus aren't speech at all, and fighting words are less like speech than they are like throwing punches. Likewise, porn has a physiological effect - in this legal fiction, porn is less like speech than it is like stroking someone's thigh. Speech, on the other hand, appeals to the cognitive facilities. The problem that I have with Stone's suggestion is that he confuses speech with discourse; does your average political campaign commercial appeal to one's higher reasoning or one's basic prejudices? In comments later, Lino Graglia makes a similar observation, that porn isn't speech because it isn't communicating a point of view. But who said that speech has to communicate a point of view? If that's so, aren't most questions -- other than the kind of "questions" asked by many participants today, I mean actual questions" -- how can a question be speech?
Stone concludes with a provocative suggestion. He suggests that obscenity rests on a received idea of sex as sinful, an idea that is actually rooted in the doctrine of St. Augustin, who develped the doctrine that sex was the original sin and that lust is our punishment for it, and thus that sexual desire is per se sinful as is anything inciting it.9 That being so, suggests Stone, obscenity thus rests on a sectarian view of sexual morality, and even though that view may not be adhered to by many christians today, criminalizing obscenity does indeed offend the First Amendment - but the Establishment Clause not the Free Speech clause. I look forward to seeing this highly provocative point in writing.
John McGinnis talks VERY LOUDLY andveryfastindeed. I elected to punish this moral failing by taking only sparse notes. His basic idea seems to be a federalist approach to the First Amendment - let the states establish what Scalia has referred to in the CrimPro context as a tolerable range of diversity10 (my comparison not McGinnis'), and just have the Supreme Court police the boundaries of state experimentation. He ties this to the rise of computers and their ability to facilitate empirical studies - Brandeis' laboratories of democracy theory11 was idealism at the time, but is now a practical option. He thinks the Supreme Court should withdraw from the field - but how? McGinnis doesn't say. Some kind of mixture of the independent and adequate state grounds doctrine and robust abstention by federal courts? Tied to what doctrine? Like Stone's establishment clause argument, I await seeing this in writing, although McGinnis suggests that he has an essay applying the same rationale to parallel situation; I'll update this with a citation later this week. McGinnis also thinks that this sort of federalist approach has the normative appeal of suppressing partisanship; if the states are free to act as laboratories of democracy, they will produce empirial data, and partisanship will fall out of the picture as dogma is forced aside by the expanding frontier of experience. John's an optimist. ;)
A couple of bullet points from rebuttal and questioning:
Although the drive home after (or the attempt at a drive home, at any rate - I gave up after three hours and less than a hundred miles) was horrendous, this was a hugely enjoyable and thought-provoking day. I also got to meet regular SF / Althouse commenter Marghlar, which was really neat, and we had a good discussion about, well, the same stuff we go back and forth about here, I suppose. ;)
Update: a couple of egregious typos corrected. This has been a long couple of days (Orin has it worse), and I'm trying to get this together for y'all as fast as possible.
Update 2: Part IV has been updated with some notes on Randy Barnett and Orin Kerr's seminar on "dos and don'ts for aspirant law profs."
Federalist Society Student Symposium '08: "the people and the courts" (3/11/08)