Antonin Scalia and the Fortas Precedent

My condolences to Antonin Scalia’s family and all who loved the late Justice.

My Twitter feed is filled with Democrats loudly protesting that despite statements to the contrary by Senate Republican leaders, Senate Republicans wouldn’t dare to refuse to confirm a suitably qualified Supreme Court nominee in a presidential election year. I suspect they would dare, partly because the “base” would go nuts if they did otherwise, and partly because President Lyndon Johnson’s failed 1968 nomination of Abe Fortas to be Chief Justice provides a close enough analogy that it would be difficult to accuse the Senate GOP of acting in an unprecedented obstructionist manner.

Fortas stayed on as an associate justice, and Warren,‘s seat stayed vacant, who announced his pending resignation in June 1968 stayed on until President Nixon successfully appointed Warren Burger to fill his seat in 1969. The Warren Court had been in its most liberal, activist phase, seemingly ready to declare a right to a minimum income, order inter-county busing for integration, and more. Instead, Nixon appointed four Justices, and the Court has been on a gradual conservative trajectory ever since. The 2016 election may prove to be similarly consequential for the Court.

UPDATE: There are three major differences between the Warren/Fortas situation and the Scalia/TBA situation. The first two favor the Democrats: first, the former situation didn’t leave the Court with only eight Justices for a long period of time because Warren delayed his resignation; and, second, the former involved specific objections to a specific nominee, not a blanket refusal to confirm anyone the president nominated. On the other hand, unlike whomever Obama nominates, Fortas likely could have gotten a majority of the Senate to vote for him, and was done in by the willingness of his opponents to filibuster.

FURTHER UPDATE: Josh Blackman has a rundown of what happened with each presidential-election-year Supreme Court nomination in American history.

 

 

 
 

 
 

 
 

 
 

 

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Happy Birthday, Lysander Spooner!

On this date in 1808, Lysander Spooner was born in Athol, Masssachusetts. You can celebrate by reading the Spooner symposium on “Liberty Matters,” for which I was pleased to write the lead essay, The Significance of Lysander Spooner. Here is how my essay opens and closes:

…While most libertarians know Spooner largely from No Treason, in his own time he was better known for his antislavery constitutionalism. In 1845 Spooner produced the first edition of The Unconstitutionality of Slavery, which [historian] Lewis Perry described as “influential” and “the most famous antislavery analysis of the Constitution.” Perry situates Spooner outside some of the principal fault lines of abolitionism, but still respected for his legal acumen by all abolitionists regardless of their camp. Unlike the Garrisonians, he was a deist rather than a Christian; and whereas the Garrisonians believed the Constitution to be a “covenant with death and an agreement with hell” because it sanctioned slavery, Spooner believed slavery to be unconstitutional. Unlike the political abolitionists, however, he privately disclaimed any interest in politics, including the antislavery Liberty Party. As Perry described it, Spooner “was a maverick abolitionist who belonged to none of the familiar factions in the movement.”

Spooner was “the leading authority for the view that slavery was illegal under the Constitution, and he was greatly respected by other abolitionists.” After Spooner, more abolitionists came to claim that slavery was illegal even in the original slave states. Eventually, even Garrison conceded that a man could be for the Constitution and yet not be pro-slavery “if he interpreted it as an anti-slavery instrument….”

Spooner’s principal argument was that the “original meaning of the constitution itself” should not be overridden by the unexpressed intentions of those who wrote it or by subsequent decisions of the courts. The “original meaning” is “the meaning which the courts were bound to put upon it from the beginning; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct.”

Spooner maintained that the “constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to.” In short, “[a]greeing to an instrument that had no meaning of its own, would only be agreeing to nothing.”

Today this stance is known as “original public meaning” originalism and is the dominant mode of originalist interpretation. As early as the 1980s Supreme Court Justice Antonin Scalia urged originalists to abandon their quest for the “intentions of the framers” and seek instead the meaning that the text of the Constitution would have had to a member of the general public at the time the Constitution was ratified. The only intentions that matter are the ones that were expressed by the language of the Constitution. Or, as Spooner put it, it “is not the intentions men actually had, but the intentions they constitutionally expressed, that make up the constitution.”Indeed, “if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written.”

I go on to note that “I may be the only person in the United States who became an originalist as a result of reading The Unconstitutionality of Slavery.” Here is how it closes:

Lysander Spooner’s approach to constitutional interpretation, construction, and legitimacy is as fresh today as it was in 1845. Indeed, it is more sophisticated and persuasive than the theorizing of most contemporary legal academics. I know it changed my views on the Constitution in a fundamental way. Not bad for a self-taught young man from Athol.

Thoughtful responses to my essay are offered by Roderick Tracy Long, Aeon J. Skoble, and Matt Zwolinski. I reply to them here. The online conversation will continue until the end of the month.

 

 
 

 
 

 
 

 
 

 

Ted Cruz and the use of deception to exploit political ignorance

William Saletan of Slate has an interesting article on Ted Cruz’s misrepresentations about his record on immigration. He effectively shows that Cruz supported the legalizing the status of large numbers of illegal immigrants back in 2013, but now pretends that he opposed it all along. Saletan is much less convincing in his effort to prove that this record shows that Cruz “may be the most spectacular liar ever to run for president.”

The truth is that deceiving voters about one’s past or present positions is a fairly standard political strategy. Few successful politicians become such without engaging in this kind of deception at one point or another. I see little difference between Cruz’s distortions of his record on immigration, and President Obama’s years of lying about his position on same-sex marriage between 2008 and 2012.

Perhaps Saletan means to suggest that Cruz’s lies are the most “spectacular” in the sense that they are unusually sophisticated and effective. But, so far at least, none of Cruz’s deceptions has achieved the spectacular success of Obama’s “if you like your health care plan, you can keep it.” That deception, and others designed to exploit what Obamacare architect Jonathan Gruber called the “stupidity of the American voter” were an integral part of the effort to pass the Affordable Care Act.

Obama’s bad behavior, of course, in no way excuses Cruz’s or that of other Republicans. Here, as elsewhere, political partisans would do well to try to keep their biases in check and remember the sins of their own party, as well as those of the opposition.

In fairness, Cruz, Obama and other similar political leaders could potentially justify their deceptions by pointing to the dangers of unilateral disarmament in political combat. If they stop engaging in politically convenient lying, their opponents probably will not, and the more ethical candidates will be at a disadvantage. Donald Trump, whom Cruz is battling for the Republican nomination, is the proud winner of Politifact’s 2015 Lie of the Year award. To say the least, it is highly unlikely that he would reciprocate any restraint on Cruz’s part. President Obama (who won the same award in the 2013), can cite the various deceptions perpetrated by his political opponents.

If, as is likely. Cruz truly believes that the public interest would be best served by his winning the presidency, he could also conclude that he is justified in using deception to try to achieve that goal – especially if his opponents are going to use similar tactics. Similarly, Obama likely believes that his lies about same-sex marriage and the Affordable Care Act also ultimately served the public interest by helping him get elected, and enabling him to push through various beneficial policies.

Ultimately, the underlying problem here is not just the unscrupulous behavior of individual politicians, but the widespread political ignorance that makes deceptive tactics effective. If Ted Cruz knew he was facing a well-informed electorate that would carefully scrutinize his record, he probably would not try to lie about it. Similar strategic calculations apply to Obama’s deceptions about same-sex marriage and the ACA. Unfortunately, most voters are “rationally ignorant” and pay very little attention to the details of political issues, and candidates’ records. Many of those who pay closer attention are biased “political fans” who tend to reject anything that reflects poorly on their preferred party or candidate, and therefore are highly susceptible to deceptions that reinforce their preexisting views.

In Cruz’s case, his dissembling about immigration actually makes me look somewhat more favorably on the prospect of his becoming president than I would otherwise. I support a strong presumption of open borders immigration, and therefore I am no fan of Cruz’s current highly restrictionist position on the immigration. But the record documented by Saletan strongly suggest that his stance is largely driven by short-term political strategy, which in turn creates the possibility that his policies on the subject in the White House might be very different from those he advocates now. In 2017 or 2018, many ignorant voters may not remember what Cruz said about immigration during the 2016 campaign, just as they are now prone to forget what he said about it back in 2013. I would prefer a candidate who takes consistently pro-immigration positions on principle. But a dissembling triangulator is less bad than a committed restrictionist.

In my book on political ignorance, I describe how President Obama quietly ignored his 2008 campaign promise to renegotiate free trade treaties such as NAFTA, most likely because he realized all along that it was a terrible idea (though one popular with Democratic primary voters). Most of the public probably did not even notice the shift. Should he become president, Ted Cruz might also end up shelving some of his less defensible campaign commitments.

That said, the widespread use of deception in politics is troubling, even if it occasionally facilitates the adoption of good (or at least less bad) policies. The political ignorance that makes such deceptions effective is very difficult to overcome. But the beginning of wisdom is to at least recognize that we have a serious problem that goes well beyond the misbehavior of individual politicians.

 

 
 

 
 

 
 

 
 

 

Ted Cruz and the use of deception to exploit political ignorance

William Saletan of Slate has an interesting article on Ted Cruz’s misrepresentations about his record on immigration. He effectively shows that Cruz supported the legalizing the status of large numbers of illegal immigrants back in 2013, but now pretends that he opposed it all along. Saletan is much less convincing in his effort to prove that this record shows that Cruz “may be the most spectacular liar ever to run for president.”

The truth is that deceiving voters about one’s past or present positions is a fairly standard political strategy. Few successful politicians become such without engaging in this kind of deception at one point or another. I see little difference between Cruz’s distortions of his record on immigration, and President Obama’s years of lying about his position on same-sex marriage between 2008 and 2012.

Perhaps Saletan means to suggest that Cruz’s lies are the most “spectacular” in the sense that they are unusually sophisticated and effective. But, so far at least, none of Cruz’s deceptions has achieved the spectacular success of Obama’s “if you like your health care plan, you can keep it.” That deception, and others designed to exploit what Obamacare architect Jonathan Gruber called the “stupidity of the American voter” were an integral part of the effort to pass the Affordable Care Act.

Obama’s bad behavior, of course, in no way excuses Cruz’s or that of other Republicans. Here, as elsewhere, political partisans would do well to try to keep their biases in check and remember the sins of their own party, as well as those of the opposition.

In fairness, Cruz, Obama and other similar political leaders could potentially justify their deceptions by pointing to the dangers of unilateral disarmament in political combat. If they stop engaging in politically convenient lying, their opponents probably will not, and the more ethical candidates will be at a disadvantage. Donald Trump, whom Cruz is battling for the Republican nomination, is the proud winner of Politifact’s 2015 Lie of the Year award. To say the least, it is highly unlikely that he would reciprocate any restraint on Cruz’s part. President Obama (who won the same award in the 2013), can cite the various deceptions perpetrated by his political opponents.

If, as is likely. Cruz truly believes that the public interest would be best served by his winning the presidency, he could also conclude that he is justified in using deception to try to achieve that goal – especially if his opponents are going to use similar tactics. Similarly, Obama likely believes that his lies about same-sex marriage and the Affordable Care Act also ultimately served the public interest by helping him get elected, and enabling him to push through various beneficial policies.

Ultimately, the underlying problem here is not just the unscrupulous behavior of individual politicians, but the widespread political ignorance that makes deceptive tactics effective. If Ted Cruz knew he was facing a well-informed electorate that would carefully scrutinize his record, he probably would not try to lie about it. Similar strategic calculations apply to Obama’s deceptions about same-sex marriage and the ACA. Unfortunately, most voters are “rationally ignorant” and pay very little attention to the details of political issues, and candidates’ records. Many of those who pay closer attention are biased “political fans” who tend to reject anything that reflects poorly on their preferred party or candidate, and therefore are highly susceptible to deceptions that reinforce their preexisting views.

In Cruz’s case, his dissembling about immigration actually makes me look somewhat more favorably on the prospect of his becoming president than I would otherwise. I support a strong presumption of open borders immigration, and therefore I am no fan of Cruz’s current highly restrictionist position on the immigration. But the record documented by Saletan strongly suggest that his stance is largely driven by short-term political strategy, which in turn creates the possibility that his policies on the subject in the White House might be very different from those he advocates now. In 2017 or 2018, many ignorant voters may not remember what Cruz said about immigration during the 2016 campaign, just as they are now prone to forget what he said about it back in 2013. I would prefer a candidate who takes consistently pro-immigration positions on principle. But a dissembling triangulator is less bad than a committed restrictionist.

In my book on political ignorance, I describe how President Obama quietly ignored his 2008 campaign promise to renegotiate free trade treaties such as NAFTA, most likely because he realized all along that it was a terrible idea (though one popular with Democratic primary voters). Most of the public probably did not even notice the shift. Should he become president, Ted Cruz might also end up shelving some of his less defensible campaign commitments.

That said, the widespread use of deception in politics is troubling, even if it occasionally facilitates the adoption of good (or at least less bad) policies. The political ignorance that makes such deceptions effective is very difficult to overcome. But the beginning of wisdom is to at least recognize that we have a serious problem that goes well beyond the misbehavior of individual politicians.

 

 
 

 
 

 
 

 
 

 

Celebrating Saturnalia

Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy. Perhaps it’s only a tradition in so far as I have put up a post about it every December 17 for the last several years. But that’s a truly ancient tradition, by blogopshere standards!

The Encyclopedia Romana has a helpful description of Saturnalia:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters’ clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that “During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside.”

As usual, this year we have no shortage of strong candidates for the position of Lord of Misrule. Indeed, this year’s crop of presidential candidates include some who are particularly well qualified for the position. So well qualified are they, that discussing them in greater detail might put a damper on the holiday season.

Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

 

 
 

 
 

 
 

 
 

 

Don’t like criticism? Say it contributes to a “hostile climate.”

Professor Jeannie Suk (Harvard Law School) writes in the New Yorker (some paragraph breaks added):

Last month, near the time that CNN broadcast the documentary “The Hunting Ground,” which focuses on four women who say their schools neglected their claims of sexual assault, I joined eighteen other Harvard Law School professors in signing a statement that criticized the film’s “unfair and misleading” portrayal of one case from several years ago.

A black female law student accused a black male law student of sexually assaulting her and her white female friend. The accuser, Kamilah Willingham, has graduated from the law school and is featured in the film. The accused, Brandon Winston, who spent four years defending himself against charges of sexual misconduct, on campus and in criminal court, was ultimately cleared of sexual misconduct and has been permitted to reënroll. The group that signed the statement, which includes feminist, black, and leftist faculty, wrote that this was a just outcome. . . .

[L]ast week the filmmakers did more than understandably disagree with criticism of the film, which has been short-listed for the Academy Award for best documentary. They wrote, in a statement to the Harvard Crimson, that “the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law.”

The words “hostile climate” contain a serious claim. At Harvard, sexual harassment is “unwelcome conduct of a sexual nature,” including verbal conduct that is “sufficiently persistent, pervasive, or severe” so as to create a “hostile environment.” If, as the filmmakers suggest, the professors’ statement about the film has created a hostile environment at the school, then, under Title IX, the professors should be investigated and potentially disciplined.

To my knowledge, no complaint of sexual harassment has been filed with Harvard’s Title IX office—though I’ve been told by a high-level administrator that several people have inquired about the possibility—and I don’t know if the school would proceed with an investigation. Precedent for such an investigation exists in the case of Laura Kipnis, a feminist film-studies professor at Northwestern University, who earlier this year wrote an article criticizing aspects of Title IX policies and culture and was accused of creating a hostile environment on campus; Northwestern conducted an investigation and ultimately cleared Kipnis of sexual-harassment charges.

A handful of students have said that they feel unsafe at Harvard because of the professors’ statement about the film. If a Title IX complaint were filed and an investigation launched, the professors wouldn’t be permitted to speak about it, as that could be considered “retaliation” against those who filed the complaint, which would violate the campus sexual-harassment policy. . . .

This is the set of axioms on which one might build a suggestion that challenging the accuracy of “The Hunting Ground” contributes to a hostile environment on campus. If I am a student at a school where professors seem to disbelieve one accuser’s account, then it is possible that they could disbelieve me if I am assaulted.

That possibility makes me feel both that I am unsafe and that my school is a sexually hostile environment. Under this logic, individuals would not feel safe on campus unless they could know that professors are closed off to the possibility that a particular person accused of sexual misconduct may be innocent or wrongly accused.

But, then, what would be the purpose of a process in which evidence on multiple sides is evaluated?

Much worth reading.

 

 
 

 
 

 
 

 
 

 

Academic Israel boycotts can violate corporate law

Winter is the season of many academic association annual meetings — and with them, a predictable wave of proposals for these groups to boycott Israel. I have an op-ed in today’s Wall Street Journal, co-authored with “Deal Professor” Steven Davidoff Solomon, explaining how boycotts by scholarly associations can violate corporate law, allowing members to sue to enjoin the measures.

Academic association boycott actions may be invalid under the ultra vires doctrine of corporate law. That rule limits a corporation from acting beyond its chartered purposes. In the modern era, ultra vires has little relevance for regular “all lawful purpose” for-profit companies. However, it still matters for non-profits, which often specifically limit their activities and goals in their constitution. Such constitutional limitations are binding, and corporate actions that go beyond the express constitutional powers and purposes can be enjoined.

As we explain in the article, most scholarly associations’ constitutions dedicate them solely to advancing knowledge and research in their field. Such purposes not only fail to authorize boycotts but also exclude them:

A boycott by definition restricts study and research: The explanatory material attached to the AAA resolution, for example, says it would restrict the organization from sharing scholarly journals with Israeli universities.

Saying that organizations cannot act beyond the purposes specified in their charters is no mere legal nitpicking. The charter is an explicit contract with members, declaring that their money will be dedicated to agreed-upon goals and that their group will not turn into a motorcycle club or a political party.

Although some major academic organizations have thousands of members, they are generally run by a small staff and a board that effectively controls the agenda. The purposes named in their charters are meant to protect the overwhelming mass of members who cannot get involved in the minutiae of the organization’s affairs, to ensure that the organization cannot be hijacked for a fundamentally foreign purpose, and to protect minority members. The charter is the minimal assurance that while an organization may act unwisely, it will be at least in the category of fieldwork, education and research, not beekeeping or boycotts.

Whether a particular boycott resolution is ultra vires depends on both the group’s constitution and the wording of the resolution itself. Some BDS resolutions are simply non-operative denunciations of Israel; they probably do not constitute a corporate act. On the other hand, decisions like the one being considered by the American Anthropological Association (or the one passed last year by the American Studies Association), which would exclude Israeli entities, have real bite, and thus fall outside of the group’s “Statement of Purpose.

The American Historical Association’s Constitution is a strong example of one that strictly limits the group’s purpose to academic matters — “research” and the “broadening” and “dissemination” of knowledge.

The AHA boycott resolution is relatively narrow. Unlike the National Women’s Studies Association resolution adopted last week, it is not simply declarative, but it does not bar ties with Israel scholars or institutions. It does, however, give the AHA the job of “monitoring Israeli actions restricting the right to education in the Occupied Palestinian Territories.”

This provision, in effect, turns the AHA from a historical scholarly organization into a human rights watchdog, which is an entity of an entirely different character. There are many organizations dedicated to monitoring Israel’s conduct, and AHA members are free to join them, but this is not a historical endeavor, or even related to one. Neither monitoring “the right to education” nor the real-time conduct of foreign governments is remotely an activity “in the interest of history.” AHA members and donors are protected by the group’s Constitution from having their organization use their membership fees and donations to “monitor Israel actions … in the Occupied Palestinian territories” as much as they are from having the organization turn its efforts to the monitoring of the movements of the planets.

The AHA, like the ASA and many other groups, is chartered and based in the District of Columbia. Courts in D.C. have in recent years used the ultra vires doctrine against educational non-profits in several cases. These cases have taken a fairly strict view, holding for example that it could be illegal for a group to terminate memberships except for the specific reasons mentioned in its Constitution. Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 19 (D. D.C. 2014); Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723, 731 (D.C. Ct. App. 2011).

Doubtless the board of the AHA (called the Council) would thus exercise its power to veto the boycott resolution, as it is empowered to do for “any measure adopted at the business meeting that it believes to be in violation of the Association’s constitution.” As we note in the article, officers of these groups may be individually liable for damages for ultra vires actions.