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Don't Tell Schwarzenegger

Whether John McCain is a "natural born" citizen of the United States is a hot topic these days. (Not.)

Jack Balkin uses the question as a springboard into an entertaining discussion about how text and structure illuminate the issues; turns out, under Article II, sec. 1, clause 4, no one alive today is eligible to be president of the United States!

I come to something like the opposite view.

Hilzoy on Haynes' Briefs

Here. You can't make this shit up. (Well, you could, but why would you?)

Ali Oops!

Wow. I'd hate to have the majority construe this TSA notice:

"We encourage everyone to pack gel-filled bras in their checked baggage."

(HT to Jason Stanley.)

A Dim, Convenient Goof

A judicial opinion from the Queen's Bench [n.1] declares that An Inconvenient Truth

1. is "broadly accurate," and that it's central theses about anthropogenic global warming are "supported by a vast quantity of research published in peer-reviewed journals worldwide and by the great majority of the world's climate scientists"; but that it
   
2. contains errors of fact that render the film "partisan" within the meaning of the relevant statutory provision, such that it cannot be shown to students absent the presentation of other viewpoints.

The Volokh Conspiracy's David Kopel mentions only one of these two findings. Guess which?

I pointed this convenient elision out to him in a comment about almost a week ago (and I'm not the only one who did so), but so far no update or clarification in his post. I can only assume he wants to provide a comfortable echo chamber for denialists. If so, Mission Accomplished.

Depressingly, if not surprisingly, Kopel's brand of journalistic malfeasance is not peculiar to the blogs.

NOTES
1. "United Kingdom's High Court of Justice, Queen's Bench Division" sounds very grand, indeed. But in civil matters, the Queen's Bench is roughly analogous in its authority to a district court. So we're not talking about an opinion by the Supreme Court, here. Besides which, it's, you know, in England.

Error on a G String

This is a bizarre case. Former Procol Harum keyboardist Matthew Fisher sued for a share of the copyright to "Whiter Shade of Pale" based on his contribution as keyboardist on the recording and...won. I'm pretty sure that's unprecedented. Studio musicians routinely contribute key melodic hooks to songs for which they receive no copyright interest. It's just part of the gig.

Before I get into my criticism of the decision, I should mention I actually think the court here was aiming at something desirable, namely, rewarding such contributions with some kind of quasi-copyright protection when those contributions effectively become a part of the song. An example that comes to my mind is session guitarist Robert White opening riff to "My Girl", a lick that's so integral to the song you really can't imagine someone covering the song without it. I think most folks would agree that White deserved more thanks for what he contributed than his standard $20 song fee.

That being said, the legal mechanism established in this case is an impossibly blunt instrument to implement this kind of reward. And besides, I doubt anyone thinks even an original contribution like White's would be due a 40 percent share of the copyright (which is what the judge here awarded Fisher). So the court's decision is pretty bad even if you end the criticism there.

But the truly bizarre thing about this case is that Fisher's averred contribution isn't even original. Rather, it's a slightly digested rendition of Bach's Orchestral Suite in D (a/k/a "Air on a G String"). So whether or not it was Fisher's idea to play that melody on the organ on "Pale" is irrelevant: Bach's melody was in the public domain. For whatever reason, this point isn't made in the article, so thought I'd mention it.

BTW, I once did a quasi-surf-guitar version of Bach's "Air." Kind of fun. Just for kicks, I'll upload it to my MySpace jukebox for your listening pleasure and update here when it's ready to spin. Till then...

UPDATE: Okay, surf's up, so cut on over and catch some "Air," dude.

More on Chemerinsky

Although I blogged yesterday on Chemerinsky's L.A. Times op-ed, I passed over the really hot topic, viz., UCI's volte-face regarding their choice of Chemerinsky as dean of UCI's nascent law school. To make up for my omission, I'll direct you to Belle Lettre (via Legal Theory), who has a comprehensive run-down.

BTW, I've signed the petition* and urge others to do the same.

UPDATE: Chemerinsky reinstated. (Via Mark Kleiman.) I'm pretty sure my signature on the petition was the tipping point.

 

Fact and Opinion on Opting-In

Kent Scheidegger excoriates Erwin Chemerinsky for his op-ed in the L.A. Times (which voices opposition to inexplicably-still-Attorney General Gonzales' plan effectively to narrow the time window for habeas petitions under the AEDPA).

While Chemerinsky is perhaps guilty of some hyperbole in his piece, Scheidegger's rebuttal suffers from a stingy pretension to precision that is both self-defeating and at odds with the fact that, well, it is an op-ed we are expounding.

There are two main claims he takes issue with. First, he quotes Chemerinsky's claim that "[a]lmost no states provide counsel in these crucial proceedings" (i.e., habeas review in death penalty cases). By way of rebuttal, he quote Stevens' 1989 <i>Murray</i> dissent, as follows:

Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings. Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases. Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed.

But of course providing counsel to "help initiate" collateral review is not the same thing as "providing counsel in these crucial proceedings." Nor is "creat[ing] governmentally funded resource centers to assist counsel in litigating capital cases." Nor is (as with VA et al.) failing to do even that much. [n.1]

Second, he counters Chemerinsky's claim that "[s]o far, only Arizona has complied [with the provision of counsel requirements]" by noting that California enacted legislation aimed at bringing California into compliance. But as Scheidegger must know, states can't qualify for certification merely by passing a law. [n.2] And however salutary the other nominal or substantive steps California has taken, the fact remains that Arizona is the only state since the passage of the AEDPA whose compliance has been certified. As such, Scheidegger's suggestion that California's problems on this score were "resolved by legislation a decade ago" is at least as misleading as anything in Chemerinsky's piece.

NOTES
1. Incidentally, query how an off-point excerpt from a 1989 dissent could possibly provide evidence of the procedural state of play in 2007.

2. There are six opt-in criteria under the AEDPA concerning appointment mechanisms, statutory or court authority, counsel competence, funding, scope, etc.; failure to meet any one of them disqualifies the state. See, e.g., Hill v. Butterworth.

Living Constitutionalism for the Formalist, Pt. 2

Besides its comparative advantages over originalism in the above respects, [n.1] CMF avoids certain positive disadvantages of originalism.

For instance, as between CMF and originalism, it's fairly clear that the former more reliably leads to just or desirable outcomes. Indeed, it's widely acknowledged [n.2] that in certain classes of issues, the original understanding produces unjust or undesirable outcomes systematically: Dred Scott; the Court's modern free speech jurisprudence; New Deal legislation; federal civil rights legislation; legislation creating independent federal agencies; and so forth. It is no coincidence that CMF is more "progressive" in this way, of course, since CMF tracks the natural course of language as it progresses through time. [n.3]

CMF also avoids a methodologically vicious tautology inherent in "framers intent" originalism. [n.4] The tautology derives from the fact that the best evidence we have of framers' intent is often their contemporaneous legislative acts and judicial opinions. The originalist interpretive argument here is that since the framers knew better than anyone what they meant by their constitution, then if they enacted a law or issued an opinion that is consistent with a given constitutional provision on some interpretation A but inconsistent with that provision on interpretation B, we should infer that they intended A. Now, this approach seems reasonable -- until one realizes that it renders the prospect of the framers' enacting unconstitutional legislation something close to a logical impossibility: Founding era legislators and judges could have been nothing other than "faithful" to their expressed ideals because by hypothesis their legislative acts and judicial opinions defined the faith. [n.5]

In sum, then, CMF is a type of living constitutionalism that not only challenges originalism on its own terms but also carries with it its own distinctive set of substantive and methodological advantages. We can jettison original meanings and still engage in interpretations that are "principled" along the very same dimensions originalism claims are its exclusive selling point. And we can anticipate outcomes that are more in keeping with modern moral and political expectations. (It's a floor wax and a dessert topping.)

NOTES

1. Unfortunately, these advantages are often grossly oversold. For instance, the claim that in the absence of semantic objectivity we would be left with a "bevy of Platonic guardians" (or the like) is transparently bogus. Even in the face of radical indeterminacy, justices would still be constrained by conscience, institutional identity, peer review, professional norms and the prospect of impeachment. The fact, then, that a given theory of constitutional interpretation doesn't "constrain" judges according to some proprietary criteria is obviously an insufficient reason to disfavor that theory.

2. Even originalist Justice Scalia has been led in a subset of these areas to be somewhat faint of heart when it comes to the assiduous application of his favored interpretive theory. Though Scalia himself wouldn't necessarily say that he's "acknowledged" such systematic injustice as the reason for his faint-heartedness, his express condition for departure from an established rule -- that an "evolution in social attitudes has occurred" -- nonetheless suggests he endorses prudential deference to robust consensus judgments about justice that might deviate from the original understanding (at least when he's among those in the consensus).

3. I'm presupposing here that both common (lay) and professional lexicons have "natural" careers, though the pressures that shape and guide them are distinctive. More on this later.

4. The "tautology" is obviously not pure, since there is other textual evidence (e.g., private correspondence) that originalist interpreters can turn to that isn't as likely to be beset with politically-induced distortions. But to the extent that contemporaneous legislation is the only, or best, evidence available, there is something of the vicious circle I describe above inherent in framers' intent originalism.

On the other hand, framers' intent originalism has been for the most part been supplanted by the popular meaning variety, so CMF's escape from tautology is not so impressive or distinctive an advantage. Still, the tautology problem is worth marking in case there is ever a relapse.

5. You could say that George W. Bush himself (admittedly no constitutional expert, he) tacitly argued against this version of originalism, then, when he noted: "Every day our nation was segregated was a day that America was unfaithful to our founding ideals." (Good to know he recognizes the possibility.)

 

Living Constitutionalism for the Formalist, Pt. 1

Picking up where I left off on Friday, I want to briefly sketch a quasi-formalist alternative to originalism, what I'll call contemporary meaning formalism ("CMF").

The theory is spelled pretty much the way it sounds:

(CMF) The original text of the constitution and amendments are authoritative, and their terms are to be strictly construed; but they are to be construed according to their contemporary rather than original meaning.

Here, briefly, are the main arguments in favor of CMF as against originalism:

1. Determinacy. The contemporary meaning of a constitutional term will be at least as determinate as the original (i.e., centuries-old) meaning. (Which meanings do we have more complete and reliable access to--those of 2007 or those of 1789?)
2. Objectivity. In light of (1), above, the contemporary meaning of a constitutional term will be at least as independent of the preferences of judges as the original meaning.
3. Popular sovereignty. If legitimacy requires the consent of the governed, then it seems likely that the words as those governed now understand them should be preferred over the words as understood by a centuries-dead polity. (In a slogan: Whereas They were the People, We are the People.)

Click here for Part 2.

Living Constitutionalism for the Formalist (Teaser)

Jack Balkin and Matthew Franck have had some back-and-forth on Balkin's theory of originalism.

I'm skeptical that Jack's "originalism" is properly so-called.  I want to suggest however that originalism is not the only formalist option that liberals might find attractive. The alternative I have in mind is what I'll call "contemporary meaning formalism." I'll roll out the theory on Monday and explain why it is a more principled alternative to any plausible form of originalism. Till then...