Ciceronian Review

Catch-22 Is Still Good

The GitMo trials continue to produce curiosities, as this story in today's NYT attests.  Detainees who represent themselves create many problems for the trials.  The detainees have limited access to the evidence, and in some cases only to classified evidence that is introduced against them, even in capital cases.  The integrity of such a process is doubtful.  If you read through to the end of the story, you find the following:

But when it came his turn on Thursday, Mr. Mohammed, known as K.S.M., dwelled on the challenges. He said he had asked the guards for paper so that he could begin to draw up legal motions. The answer, he told the judge, was that paper was not authorized.

Judge Kohlmann seemed to acknowledge the challenge of writing a motion without paper. Nevertheless, he told Mr. Mohammed, even such a small thing as a request for a pad of paper had to follow procedure.

“There’s going to have to be a motion,” the judge said, “in accordance with our rules."

KSM must file a motion to get paper.  To file a motion, he must write a motion, which requires the paper he can only get if he first files a motion.  It is hard to tell if the report is accurate -- one hopes the reporter has made some error rather than that the judge is a broken brick.

Typography and Constitutional Law

Although there has been a great deal of commentary on the Heller decision, all of it assumes there is no question about the text of the Second Amendment. Me too, I had not considered the possibility that there is not a canonical text.  But, if the last several issues of Green Bag are to be believed, there in fact is a question about the text.   See the Summer 2007 article by van Alstyne and Winters piece in the Winter 2008 issue.  In particular, whether and where commas.  Seems to have been that there are three or five different versions presented and approved by the several States, etc.  The absence of commas seems to me to make a difference in what is said.  Without them, it seems harder to make out the purposes of the clauses, or that there are clauses.  At least all less certain, and so lesser grounding for the great boom of Antonin.  I found the articles fascinating, albeit morbid.  

I don' t know that the articles are to be believed; never done a lick of research on the typographical question, and have not checked any of the footnotes.  Maybe the articles are jokes, in which case I must admit being among the (or even the only one) fooled.  

Heller's Scalia

The Supreme Court's decision in Heller has elicited the expected torrent of commentary, blogs and editorials.  The decision is eliciting praise and condemnation, mostly on ideological grounds.  I wish I could share in the joy, but, to be honest, I found Scalia's opinion slightly ridiculous.  Barnett sees a masterpiece of opinion writing, and scholarly at that.  I don't.  I see self-parody, indefensible assumptions and intellectual failure.  I think the most accurate and telling discussion is by Levinson at Balkinization (and Tushnet, for that matter).  (The series at Balkinization are quite interesting.)

Start with scholarly.  Having footnotes is not scholarship.  Footnotes which cite scholarship is not scholarly.  The notes have to be honest, cite the sources and fairly represent opposing or differing views.  Scalia does not do that.  The opinion is supported by the sort of biased selection of sources that renders the piece useless.  The sources are considered only to the extent they support his conclusions, both in the sense that only supporting sources are cited and that the sources are cited so as to identify only supporting bits.  That is not how honest intellectual work is done.  It is the sort of thing that would have gotten failing grades in any graduate program.  Honest work engages with the evidence, and with the inconvenient.  None of that here. 

It is bizarre to see Scalia playing at the historian and linguist.  Neither he nor his clerks are anything of the sort.  He has no training, and there is no reason to think him even competent on these issues.  It is ridiculous to suppose that his clerks could cure the deficit.  So either there is no dispute at all about the history and linguistics, or he is adjudicating a dispute he lacks the skills to adjudicate.  It is plain that it is the latter -- the text is hardly so simple or clear that it is beyond dispute then or now what is meant.

The intellectual committments of the decision are foolish in several respects.  Had the case coime up twenty years ago, the scholarship would have weighed overwhelming in a different direction. By Scalia's lights the decision then would go a different direction and the law would be settled now.  Or is it that the law is to be revised by the courts to follow the latest in each little field of scholarship?  Do professors of history count as binding authority?  And if the scholarship shifts again, does that destroy the foundation and force of Heller?

The project Scalia relies on - public meaning originalism - is a chimera.  It is in the opinion itself.  Scalia rejects out of hand the argument that if the Second Amendment is interpreted as the public meaning of the 1790s, then it has no application to any but weapons known in the palce at the time.  But why?  The public meaning could not have encompassed modern pistols or rifles, because such things were not known.  They could not be within the public meaning.  So at the outset, Scalia runs from his own theory.  (To beat the horse, why would people with no training in history or linguistics even want to be bound by a set of meanings they are not competent to discern?  There just is no way around a series of absurd outcomes with this sort of approach.  There is nothing at all wrong with branding or whipping or tarring or draw & quarter on this view.) 

Update:

Jack Rakove has an interesting discussion of the opinion from the perspective of a working historian.

Supreme Court Allows Guantánamo Prisoners to Appeal to Civilian Courts

I have not gotten the opinions yet.  A remarkable development.

Update:

The opinions are out -- see here -- and I am reading through them.  Chief Justice Roberts' dissent is unimpressive.  Its characterization of the majority opinion is inattentive, at best.  Quite inaccurate and entirely too much a political tract.  It improves as it goes on, addressing the arguments, although there remains throughout a good deal of rhetorically tricks -- it is not really the Court's job to fashion specific procedural remedies.  The high rhetoric is a bit dismaying I think.  

Scalia starts with posturing -- the decision will cause more American deaths; which he knows because he is a Supreme Court Justice?  There is not much evidence for that claim.  The legal analysis is better than that, not suprisingly, although there is lots of color in the language.  I am not sure what I think about these cases.  I need to go back and re-read Hamden.

Express

The office received the latest California Lawyer, which contains a "story" on reading facial microexpresions.  A psychologist at SF State developed a system for reading microexpressions and thereby detecting deception and nervousness, etc.  A half-smile means contempt, but a 4/9ths smile is suppressed favor?  Who knows, because none of it -- not the underlying research (if there is any) nor the method of interpretation has been published anywhere or subject to peer-review.  That fact, noted in the article, is no obstacle to presentation by the magazine.  (What is the relationship between California Lawyer and the Bar?)  But some lawyers believe it, and the inventor has contracts to train policia, etc.  Some people find astrology helpful (including a certain past President), but that does not make it true or plausible, etc.  Some people find laying on hands as healing, but there is no evidence to support it.  It is still ridiculous crap. 

The Good Get Discharged

The judge in the upcoming Gitmo trial has been relieved.  This is an unfortunate development on multiple levels.  First, of course, is that it is more than an appearance of political interference -- the judge has ruled against the prosecution on several issues and made clear that dilatory and obfuscatory tactics on discovery are unacceptable.  In light of the record of the head of the Gitmo trials stating that convictions are necessary, it looks like the DoD is intent on making it obvious that the trials are a fraud.  Not helped by Brownback's repeated statements that he is willing to remain active duty until completion of the trial.  The vague talk of "other manpower allocations" is awfully thin gruel.  Of course, the very thought that the trials might result in anything more convincing than what comes out of China or Zimbabwe is impossible to sustain.  The prosecutions are shameful, and were it not for the JAG defense lawyers, an unmitigated disaster. 

A Painful Loss

Ms. Hong has had a bad day:

At the start of a 20-minute court session, Robertson appeared prepared to rule in favor of the archives because no court precedent exists for Judicial Watch's request.

Judicial Watch, the judge observed, is trying to "jump to the head of the line" to get its request handled first. The judge said court papers filed by the private group are "hyperbolic" in tone.

When the lawyer for Judicial Watch noted that Wednesday's release of Clinton's appointment calendars had received widespread media attention, Robertson said, "Do we want to support that feeding frenzy?"

Then Justice Department lawyer Helen Hong described the archives' use of "rotating queues," "multirequest queues," and "queue structure" to handle requests.

When she finished, the judge looked at Judicial Watch lawyer Paul Orfanedes and announced, "You can have your discovery," the legal process by which one side gathers evidence through questions submitted to the other early in a court case.

She has the judge on her side before she stands up and manages to persuade him to rule against her without even the bother of a reply argument.  I think there is a large bruise on her forehead. 

Neither Vague nor Ambiguous.

Law professors on orginalism and living constitution say odd things.  Solum's brief remarks of a few days ago illustrate the point.  It is not just that the public meaning of the Constitution (when adopted) suffers from being vague in places and ambiguous in places.  It is also completely silent about a great many things which, on any sensible or even defensible account of US law, it must provide guidance.  Simple example -- wiretaps are not within any part of any public meaning of the Fourth (or any other) Amendment.  Or the consider machine-guns.   Nothing  in the public meaning of the Second Amendment on that, and it is not because the Amendment is either vague or ambiguous on the point.
Solum is a careful writer and thinker, and he has certainly added to originalist thinking.  It is just that the line of conversation is fundamentally mistaken.

Utah Lawmaking

I thought I might try to catch up on some books I’ve read over the recent months, working backwards. I suppose I could write about the Utah Legislature, which is in session another week or two, unfortunately. A collection of monsters, I must say. Killed funding for International Baccalaureate programs in some local high schools because the OB program is “anti-American”. That consists in its connection to Switzerland, that bastion of one-world government. The Swiss, you see, have adopted an arbitration model from an UN agency, which means that the UN controls the schools. It is that or that the schools teach socialization, and that is bad. No kidding, that is the Utah Legislature. When people carp about the possibility of DC becoming a state, I treat them to the deliberations of Utah’s legislature. DC is a horrible mess, but it seems pretty close to impossible that in self-governance would be any less functional or weirder than what we get in Utah. There is also the bill which requires Slat Lake City to fund schools in the southwest of the valley, because, well, no reason at all beyond the general belief that cities should subsidize suburbs. The brilliant plan last year to impose loan constraints on state chartered credit unions so they could not compete at all against banks. Following which most of the credit union took on federal charters. What one learns in places like Utah is that one party rules is unrelenting corruption. Bill after bill is pay-off to some constituent. A doc builds an imaging center, and gives away free exams to legislators. Next year, we get mandates for insurers to pay for imaging centers. No thought to how the hospitals are going to be funded, or to allowing insurers to set their rates. Ah, but we did get a soccer stadium last year that Salt Lake County did not want. We give up 15% of the taxes for recreation programs to fund the stadium. Pumpkins.

Abortion is Ordinary

This story from the Tuesday NYT is worth a close read.  The story concerns Dr. Susan Wickland, who provides abortion services in a number of states.  She is a rather interesting person, whose choice of practice was influenced by her history, the horrible services she received as a young woman.  Intermixed are some startling facts, at least startling to me.  Consider this paragraph:

Dr. Wicklund, 53, said that at current rates almost 40 percent of American women have an abortion during their child-bearing years, a figure supported by the Guttmacher Institute, which researches reproductive health policy. Abortion is one of the most common operations in the United States, she said, more common than tonsillectomy or removal of wisdom teeth. “Because it is such a secret,” she said, “we lose sight of how common it is.”

I had thought abortion common, but not that common.  It raises some questions for the electoral politics.  Is it that many users take a Limbaugh attitude (condemn those drug users until one become one, and then it is just an unfortunate illness)?  Is it that many users retrospectively condemn themselves?  I don't know, and those two options seem to quick to be a very great part of the story.