Mark Graber, John Yoo, and the Problem of Academic Evil

Law professor Mark Graber--who we last saw using Martin Luther King Day weekend to blog about how Dred Scott was rightly decided by Roger Taney, and how Taney's opinion was legally correct when it stated that no Black man had any rights that the white man was bound to respect--pokes his head out of his whatever-it-is and becomes the first man I have seen who comes to the substantive defense of John Yoo:

Balkinization: Having just excerpted the Yoo memo... let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials.... I was no more impressed by the Roberts opinion in Parents Involved (the Seattle school district case) then the Yoo memo.

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word.... President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials... but I suspect they were not believed or even intended to be believed.... If there is a conspiracy, we probably should arrest about 60% of the country.... [T]he Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States.... [A]s a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators.... [T]he constitutional support for Yoo's position is gaining strength.... Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

I confess I don't see an argument here.

Of course, I didn't really see an argument in Graber's applause for Roger B. Taney either. If there was an argument it seemed to be: "The southern slaveholder aristocracy would never have ratified the Constitution if they had thought that its proper interpretation would ever piss them off, so the first principle of interpreting the Constitution of 1789 must be to interpet it in a way that doesn't piss the southern slaveholder aristocracy off." And this was profoundly stupid--it leads to the conclusion that no constitution can ever be interpreted to mean anything that pisses anybody off (except slaves, women, the propertyless, subsequent immigrants, etc.--all those who didn't get to vote on it--it's OK to piss them off). And this was empirically false: in the Nullification Controversy Andrew Jackson and the Democratic congress interpreted the tariff clause in a way that pissed the slaveholding aristocracy of South Carolina off mightily--and made it stick, with President Jackson reportedly swearing that if the legislature of South Carolina did not back down he would seize its leading politician and his own Vice President John C. Calhoun and hang him on the south lawn of the White House.

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Time to hoist my earlier views of Mark Graber from the archives:

http://delong.typepad.com/sdj/2007/08/law-professor-m.html

Mark Graber is back: This time it is one of the most bizarre ripping-of-quotations-from-context I have ever seen, asserting that the differences on slavery between Roger B. Taney and Abraham Lincoln were "almost trivial." In making this argument, Graber lets Lincoln speak for one single clause before silencing him and hustling him offstage:

Balkinization: A good case can be made for tearing down the bust of Roger Brooke Taney that stands in front of the city hall in Frederick.... Taney wrote the opinion for the Supreme Court in Dred Scott v. Sandford (1856)... that persons of color could not be American citizens and that slavery could not be prohibited in American territories.... While the bulldozers are rented, we might get our money’s worth and tear down all statues honoring Abraham Lincoln. Lincoln insisted he "never complained especially of the Dred Scott decision because it held that a negro could not be a citizen..."

From a contemporary perspective, the differences between Lincoln and Taney seem almost trivial. The sixteenth president opposed making persons of color citizens of Illinois, advocated federal fugitive slave laws, endorsed slaveholding in the nation’s capital, and insisted that the federal government had no power to interfere with slavery in any state in which human bondage was legal. Their only serious dispute was over whether slaveholders could take their human property to North Dakota, a place few if any slaveholders had expressed interest in settling...

Let us bring Abraham Lincoln back on stage, and let him say more than the nineteen words from his Alton speech that Graber lets him say. Here is what Lincoln said about the "almost trivial" differences between him and the anti-anti-slavery Democrats like Stephen Douglas (let along the pro-slavery Democrats like Roger Taney):

Last Joint Debate, at Alton. Mr. Lincoln's Reply. Lincoln, Abraham. 1897. Political Debates Between Lincoln and Douglas: Judge Douglas... says he “don’t care whether [slavery] is voted up or voted down” in the Territories. I do not care myself, in dealing with that expression, whether it is intended to be expressive of his individual sentiments on the subject, or only of the national policy he desires to have established. It is alike valuable for my purpose. Any man can say that who does not see anything wrong in slavery; but no man can logically say it who does see a wrong in it, because no man can logically say he don’t care whether a wrong is voted up or voted down. He may say he don’t care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing. He contends that whatever community wants slaves has a right to have them. So they have, if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.... You may turn over everything in the Democratic policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation, or the shape it takes in short maxim-like arguments, it everywhere carefully excludes the idea that there is anything wrong in [slavery].

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—-right and wrong—-throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle...

Mark Graber may think this difference is "almost trivial." I cannot find anybody else who does.

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"To Secure the Blessings of Liberty" by reiterating his claims that (i) Dred Scott v. Sanford was rightly decided, and (ii) it was Lincoln and the Republicans in the 1850s--rather than either Roger Taney with his southern power grab in 1857 or the slavemaster secessionists firing on Ft. Sumter in 1861--who broke the constitutional order set up in 1857. It's an interesting way for him to celebrate Martin Luther King holiday weekend

As you may or may not remember, I read Mark Graber's Dred Scott and the Problem of Constitutional Evil as making seven claims:

1. The 1787 Constitution intended "contested constitutional questions... be settled by the bisectional coalitions."
2. The framers thus set John C. Calhoun's principle of "concurrent majorities" in the Constitutional bedrock
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit.
4. In Dred Scott, Roger B. Taney replaced failing the political protections of slavery provided by sectional balance in numbers of states and populations per section with legally-enforceable protections.
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it.
6. In criticizing Taney for violating the letter of the Constitution, Lincoln was being unfaithful to the spirit of the Constitution, and so was destroying it.
7. Dred Scott was rightly decided.

Claim number two, especially, struck me as simply weird. Read John C. Calhoun's Discourse. John C. Calhoun himself did not believe that his principle of concurrent majorities was part of the 1787 constitutional order. He believed that it would have been wise for the framers to have made it part of the order. He believed that the constitution should in his day be amended to make it part of the order. He believed that without this principle the country might disintegrate. But he did not believe that the North had any sort of constitutional responsibility or obligation to treat his principle of concurrent majorities as part of the 1787 constitutional order.

Mark Graber has gotten himself to the right of John C. Calhoun. This is a position painful and ludicrous for a twenty-first-century American legal academic to assume. It is a position so painful and ludicrous that it should induce any twenty-first-century American academic to undertake an agonizing reappraisal--particularly over Martin Luther King holiday weekend.

But Mark Graber doesn't. Let's turn the mike over to him:

Balkinization: [A] fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation.... Of course, members of [the North] will have the luxury of knowing, as civil war wracks their country, that [the slavemasters of the South] was the party responsible for abandoning the constitution. This, however, is unlikely to reduce their casualities....

[C]onstitutional bets made by one generation... should not be enforceable against the next when the result is a sharp imbalance in the benefits... constitutions are best interpreted in ways that enable all parties... to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war)....

I think DeLong is mistaken when he insists that northerners ratified on the basis of their belief that slavery would diminish over time (while most hoped so, the best evidence indicates that concerns with slavery were not central for most northern proponents of ratification). But even conceding the point for argument's sake, the more vital constitutional consideration is that as a political matter people are not going to pay off constitutional bets made by their ancestors when the payment requires a sacrifice of crucial interests with inadequate present payoffs.... [T]he constitutional bargain was likely to continue only if the winner, in this case the free states, did not collect. The Constitution of the United States... could survive only when all crucial parties believed that cooperative served their interests, as they presently defined their interests...

I want to make two points in response.

My first point: pacta sunt servanda. Agreements should be kept. We use analogies derived from the law and practice of private contracts in our reasoning about public moral and legal constitutional obligations. Whether it makes sense for us to use these analogies is a deep question well above my pay grade. But we do use them: it is the style of constitutional reasoning that we have. And it tells us that pacta sunt servanda: agreements should be kept.

Oftentimes prudence, empathy, the desire to make additional agreements in the future, et cetera will lead both parties to agree to renegotiate a contract when circumstances change. But that doesn't mean that a dissatisfied party has the right to unilaterally change it. In private law a dissatisfied party's options are to fulfill the terms, to breach and renegotiate, or to breach and litigate. The breach-and-renegotiate option between say, Target and a supplier of electric toothbrushes entails an acknowledgement of breach and negotiations among the parties, with mediation a welcome aid. It doesn't entail the guy who has the job of monitoring compliance--the guy driving the truck and checking in the shipment at Target's loading dock--saying "There are only 100 gross of toothbrushes here, but we'll say there are 144 gross because the original contract turns out to have been unfair."

In this analogy, Roger B. Taney in Dred Scott is not the mediator at the renegotiation. He is the truck driver checking in the shipment. He was not acting as the agent of the High Contracting Parties in their renegotiation. If he were, there would not have been such anguished cries from the free-soil north in resonse to his ruling.

My second point: Go back to how Mark Graber opens his post this Martin Luther King holiday weekend. He opens with an analogy. He sets forth what he regards as a situation capturing the key aspects relevant to Dred Scott of the evolution of the United States over 1787-1860. Here's what he says:

Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.

After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B...

There are two parties to the constitutional contract in Mark Graber's imagination. There is Tribe A--the North. There is Tribe B--the slaveholders of the South. Notice anybody missing? Yep. There is no Tribe C--the slaves. One of the most ancient principles of any law worthy of the name is that, at some appropirate level, quod omnes tangit ab omnibus approbari debet. And the slaves of the United States America were certainly in the direct object of the verb tangit, as far as contemplated revisions of the 1787 constitutional order were concerned.

Mark Graber says that if changes in circumstances greatly disadvantage how a constitution impacts some group, that constitution should be revised and amended so that the losers should not have to pay up the full amount of the constitutional bet that they have lost. Well, there were powerful changes in circumstances from 1787 to 1860. In 1787, with the exhaustion of tobacco soils, Thomas Jefferson believed he would someday free all his slaves. In 1860m, with with the profits of cotton and sugar, Jefferson Davis was damned sure he would not free any of his. These changes in circumstances greatly, greatly disadvantaged Tribe C. Does not Graber's argument that the free-soil North should not have collected on its victorious bet from the slavemasters of the South have further consequences? Doesn't it carry with it a much stronger argument about relations between slavemasters and slaves? Doesn't it entail that the slavemasters of the South--transformed by the profits of cotton from seeing slavery as a temporary evil to seeing slavery as a permanent good--should not have collected on their victorious bet from the slaves?

But in the world of Mark Graber's imagination there is no "Tribe C." There are only Tribes A and B: only free-soil Northerners and slavemaster Southerners. The slaves have vanished. They are socially dead. They, you see, have not made a constitutional bet because they are not parties to the constitution. They are not and never can be citizens of the United States. They are not among the people who have inalienable rights. Governments are not instituted to secure their rights to life, liberty, or the pursuit of happiness: they have none. Their claim that they are among the "we the people" for whom the constitution is supposed "to secure the blessings of liberty" is null and void, if not simply laughed out of court.

We don't have to think about the impact on Tribe C. For, as Roger B. Taney wrote, African-Americans are:

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

But I maintain the contrary. I maintain that we do have to think about Tribe C. I maintain that everybody doing politics and law in the United States--today or in the 1850s, whether Roger B. Taney or Mark Graber--ought not to pretend that Tribe C is absent from the table. Tribe C has a seat at the table, for as Abraham Lincoln said in 1858:

I agree with Judge Douglas that [the Negro] is not my equal in many respects, certainly not in color--; perhaps not in intellectual and moral endowments; but in the right to eat the bread without the leave of any body else which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every other man.

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http://delong.typepad.com/sdj/2007/01/to_secure_the_b.html

Consider Mark Graber (2006), Dred Scott and the Problem of Constitutional Evil. At the start of his book, Mark Graber sets out seven propositions:

1. The original Constitution of 1787 intended that "contested constitutional questions... be settled by the bisectional coalitions."
2. The framers thus set John C. Calhoun's principle of "concurrent majorities" in the Constitutional bedrock: the framers regarded it as substantively unconstitutional for legislation affecting slavery to be passed by a section-specific majority.
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit, which was the "original constitutional commitment to bisectionalism."
4. In Dred Scott, Roger B. Taney replaced failing the political protections of slavery provided by sectional balance in numbers of states and populations per section with legally-enforceable protections acceptable to the "Jacksonians" (who were the people who counted).
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it via his little Constitutional Moment.
6. In criticizing Taney for violating the letter of the Constitution, Lincoln was being unfaithful to the spirit of the Constitution, and so was destroying it.
7. Dred Scott was rightly decided.

For example, see pp. 4-5, 12-13:

Confident that population was moving southwestward, the persons responsible for the Constitution assumed that representation by population, the electoral college, and the three-fifths clause would ensure Southern control.... [T]he antebellum regime disintegrated when an unexpected northwestward population explosion undermined these power-sharing arrangements....

[...]

The framers expected that contested constitutional questions would be settled by the bisectional coalitions they anticipated would be elected.... The framers never considered [that]... the letter of the constitutional rules [might subvert]... the bisectional contitutional purposes underlying those rules.... [The] real debgate [in the 1850s] was whether the original constitutional commitment to bisectionalism should be modified or abandoned.... In Dred Scott the Supreme Court fostered sectional moderation by replacing the original Constitution's failing political protections for slavery with legally enforceable protections acceptable to Jacksonians.... Republicans[']... refusal to acknowledge the constitutional commitment to bisectionalism... [was] a de facto renunciation of the original constitutional understanding that slavery would never be left to the mercy of Northern majorities.... Taney was more faithful to the original Constitution [than Lincoln] when [Taney] championed policies that could be supported by Jacksonians throughout the nation...

But there is an alternative, a more conventional story: that at the original Constitutional Moment slaveholders were betting that their power would increase over time (hence the Constitution was worth ratifying even though it did not include unneeded long-run explicit protections of slavery) and those who wanted to preserve the possibility of future abolition were betting that slaveholders' power would diminish over time (hence the Constitution was worth ratifying as long as it did include dangerous long-run explicit protections of slavery). According to this more conventional story, the abolitionists won their bet and the slaveholders lost theirs. According to this more conventional story, there was nothing in the Constitution that said that slaveholders got a "do over" if they lost their bet. In this story, Roger B. Taney's little Constitutional Moment in Dred Scott was illegitimate: an effective amendment of the Constitution that did not have the overwhelming support that whatever your theory may be of "Constitutional Moments" requires.

This more conventional story seems much stronger to me than Graber's story. At least, I didn't find anything in Graber's book that seemed inconsistent with it. And on p. 101 ff, Graber appears to sound a lot like this alternative, more conventional story--the story not of a bedrock constitutional principle of concurrent majorities but of different expectations about what the future was likely to hold:

The framers thought it "wrong to admit in the Constitution the idea that there could be property in men."... Slavery was [thus] protected by political arrangements.... [F]ramers... assumed that population increases would be greatest in the South and Southwest... [and] guarantee to the slave states the control of the House of Representatives and the executive branch necessary to secure slaveholding interests.... [T]he framers self-consciously rejected more explicit textual restraints on federal power over slavery... opposed Roger Sherman's proposal... that "no state shall without its consent be affected in its internal police."... [I]n the bill of RIghts, no slave state's representative demanded a ban on federal laws interfering with slavery....

The confidence with which the most fervent supporters of human bondage believed population was flowing southward explains their willingness to accept a mere twenty-year moratorium on federal laws banning the international slave trade.... Federalists in some Northern states and in Virginia declared that this clause [allowing the Congress to prohibit slave imports in 1808 and thereafter] doomed slavery, which required continuous importation.... Deep South representatives expected their political strength in 1808 would render unnecessary the legal protection for slavery demanded in 1787....

Certainly John C. Calhoun did not believe that the 1787 Constitution enacted his principle of "concurrent majorities." He thought that the principle of concurrent majorities was wise. He believed that it was probably necessary if the United States were to survive. He believed that the framers had made a mistake by not incorporating it--perhaps through a two-person presidency. But he was very clear in his Discourse that he did not believe that it was a bedrock principle of the pre-Civil War Constitution: he believed that the Constitution ought to be amended to enact it.

Mark Graber, in his assertion that Calhoun's concurrent majority principle--"bisectional coalitions" he calls it--was bedrock in the pre-Civil War Constitution has managed to get himself to the right of John C. Calhoun. Whenever any modern academic gets himself to the right of John C. Calhoun, it is time to check your wallet and count the spoons. Nice try.

What was really going on? Those who set up our original Constitution had lots of hopes. To create a fit instrument of government for the advance of human liberty was one. To avoid sectional strife was a second. There were a lot of others. Lots of unexpected things happened between 1787 and 1860 that caused Constitutional history to flow in unforeseen channels. Let me list four:

1. Many more people than expected voted with their feet for the institutions of the free-soil North than of the slave-soil South.
2. The coming of the cotton gin and the British industrial revolution greatly raised the value of American slaves and thus greatly increased the attachment of slaveholders to their Peculiar Institution: Thomas Jefferson wanted to emancipate his slaves; Jefferson Davis did not.
3. The existence of a written Constitution and the structure of the Supreme Court, coupled with the difficulties of formal amendment, created a situation in which by far the easiest way to amend the Constitution is to choose five justices who then have a Constitutional Moment.
4. Even after the abolition of the international slave trade in 1808, the slave population of the United States continued to increase as births to slave women outnumbered deaths, manumissions, and runaways--something few if any expected beforehand, as history teaches that slave populations do not maintain themselves.

Each of these caused American constitutional history to flow in different channels than the framers of 1787 had expected, and presumably called for some adjustment to bring the Constitution back to its intended order and purposes. So what are the principles to guide that adjustment? Which of these hopes were the bedrock principles that determine the Constitution's intended order and purposes? There is only one paragraph that tells us:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I read this paragraph and see "secure the blessings of liberty to ourselves and our posterity" as having pride of place. Abe Lincoln thought so too. Mark Graber and Roger B. Taney have a different view. I'm happy where I am.

Comments

[low-tech cyclist]

I'll speak of Yoo rather than slavery. I think Brad's undone Graber every which way on slavery.

"The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word...."

Baloney.

Yoo almost surely had to know he was facilitating torture. Why does it matter that there was no conspiracy in a non-legal sense? If everything had been done in the open, in broad daylight, would it have made it less immoral? Of course not.

"President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials... but I suspect they were not believed or even intended to be believed...."If there is a conspiracy, we probably should arrest about 60% of the country...."

And at what point did the American people have the opportunity to condone this conspiracy with their votes? I say 'never.' For many years, the Bush Administration went out of its way to make sure we, the people, had no idea what was being done in our names with respect to "enhanced interrogation techniques." And it pretty much held the line about whether anything was being done *at all* until Abu Ghraib, which was sold as the doing of a few rogue National Guardsmen. The Bush Administration maintained uncertainty and deniability about its role in such activities until it was too late for the voters to indicate their outrage at the ballot box.

Even now, the Bush Administration does its best to conceal from us what "enhanced interrogation techniques" meant in practice. How many people were waterboarded - was it just Khalid Sheikh Mohammed and a few other 'high-value' captives, or was it used indiscriminately? Let's see the record of who, and how many, were kept in what stress positions, and for how long. Same thing for sleep deprivation, sensory deprivation, hypothermia, and all the rest of it.

I still have only a vague idea of what has been done in my name, and I'm one of those proverbial 'high-information' voters. How can it possibly be said that a majority of Americans have somehow bought into this? That's nonsense.

[low-tech cyclist]

And I'll add, because now more than ever, it deserves to be said: Impeach George Bush. Impeach Richard Cheney. Impeach them now.

Then ship them, postage prepaid, to The Hague. Along with everyone else who participated in those meetings of the NSC principals.

What they *deserve* is justice at the hands of those who have been on the receiving end of their "enhanced interrogation techniques." But I shall hold to the rightness of the Eighth Amendment: that cruel and unusual punishments shall not be inflicted, even upon those who have not hesitated to inflict them on others.

[Blissex]

I am awed and impressed by BDL's arguments about Taney and Graber, which need to be recounted, because they are the central axis of the difference between the two Americas, the America of winners who send plague blankets to "untermensch" natives or who fight wars to keep treating as animals millions of imported "untermensch", and the America of losers who fight bloody wars to free their cruelly imprisoned compatriots and create the Peace Corps and try to lift even foreigners out of their poverty. But this comments seems to be, however well meaning, extraordinarily hypocritical: «And at what point did the American people have the opportunity to condone this conspiracy with their votes? I say 'never.' For many years, the Bush Administration went out of its way to make sure we, the people, had no idea what was being done in our names with respect to "enhanced interrogation techniques." And it pretty much held the line about whether anything was being done *at all* until Abu Ghraib, which was sold as the doing of a few rogue National Guardsmen. The Bush Administration maintained uncertainty and deniability about its role in such activities until it was too late for the voters to indicate their outrage at the ballot box.» To me and other foreigners it seems pretty clear that the huge re-election victories of Republicans in Congress and for the presidency post 9/11 were based on a campaign of well understood "whatever it takes" wink/nudge and that the American voters enthusiastically backed a strategy of "better safe than sorry" where the rights of a few thousand brown (instead of red or black skinned) "untermensch" are insignificant compared to the safety of terrified USA voters. Torturing un-persons "just in case" seemed such an attractive option. Am I the only malicious mind who disagrees that innocent, well meaning USA voters were hoodwinked and they did not really mean to vote for more "whatever it takes" or "better safe than sorry"? Well, some others seem to have shared the same impression, for example this Financial Times commentator (in 2006, not the day after the WTC atrocity): http://news.FT.com/cms/s/2817d81c-b067-11da-a142-0000779e2340.html «But is clear leaders of both parties lack the confidence to challenge the mood of xenophobia that exists outside Washington. Instead they are fuelling it. In some respects the Democrats are now as guilty of stoking fears on national security as the Republicans. Their logic is impeccable. A majority of Americans believe there will be another large terrorist attack on American soil. Such is the depth of anxiety that one-fifth or more of Americans believe they will personally be victims of a future terrorist attack. This number has not budged in the last four and a half years."» «Mr Bush has consistently received a much higher public trust rating on the war on terror than the Democrats. Without this -- and without the constant manipulation of yellow and orange terror alert warnings at key moments in the political narrative -- Mr Bush would almost certainly have lost the presidential race to John Kerry in 2004.» But it is easy to dismiss all this as the inane gibbering of the foreign surrender monkeys that hate America and want the terrorists to win.

[Blissex]

[sorry about the double post, but I want formatting to be proper, not all text flowed together, as there are essential quotes]

I am awed and impressed by BDL's arguments about Taney and
Graber, which need to be recounted, because they are the central
axis of the difference between the two Americas, the America of
winners who send plague blankets to "untermensch" natives or who
fight wars to keep treating as animals millions of imported
"untermensch", and the America of losers who fight bloody wars
to free their cruelly imprisoned compatriots and create the
Peace Corps and try to lift even foreigners out of their
poverty.

But this comments seems to be, however well meaning,
extraordinarily hypocritical:

«And at what point did the American people have the opportunity
to condone this conspiracy with their votes? I say 'never.' For
many years, the Bush Administration went out of its way to make
sure we, the people, had no idea what was being done in our
names with respect to "enhanced interrogation techniques." And
it pretty much held the line about whether anything was being
done *at all* until Abu Ghraib, which was sold as the doing of a
few rogue National Guardsmen. The Bush Administration maintained
uncertainty and deniability about its role in such activities
until it was too late for the voters to indicate their outrage
at the ballot box.»

To me and other foreigners it seems pretty clear that the huge re-election victories of Republicans in Congress and for the presidency post 9/11 were based on a campaign of well understood "whatever it takes" wink/nudge and that the American voters enthusiastically backed a strategy of "better safe than sorry" where the rights of a few thousand brown (instead of red or black skinned) "untermensch" are insignificant compared to the safety of terrified USA voters. Torturing un-persons "just in case" seemed such an attractive option.

Am I the only malicious mind who disagrees that innocent, well
meaning USA voters were hoodwinked and they did not really mean
to vote for more "whatever it takes" or "better safe than
sorry"? Well, some others seem to have shared the same
impression, for example this Financial Times commentator (in
2006, not the day after the WTC atrocity):

http://news.FT.com/cms/s/2817d81c-b067-11da-a142-0000779e2340.html

«But is clear leaders of both parties lack the confidence to
challenge the mood of xenophobia that exists outside
Washington. Instead they are fuelling it. In some respects the
Democrats are now as guilty of stoking fears on national
security as the Republicans. Their logic is impeccable. A
majority of Americans believe there will be another large
terrorist attack on American soil. Such is the depth of anxiety
that one-fifth or more of Americans believe they will personally
be victims of a future terrorist attack. This number has not
budged in the last four and a half years."»

«Mr Bush has consistently received a much higher public trust
rating on the war on terror than the Democrats. Without this --
and without the constant manipulation of yellow and orange
terror alert warnings at key moments in the political narrative
-- Mr Bush would almost certainly have lost the presidential
race to John Kerry in 2004.»

But it is easy to dismiss all this as the inane gibbering of the
foreign surrender monkeys that hate America and want the
terrorists to win.

[Blissex]

«[T]he Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States.... [A]s a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators.... [T]he constitutional support for Yoo's position is gaining strength.... Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

I confess I don't see an argument here.»

But I do see TWO ARGUMENTS here, and implicit one.

Mark Graber's first argument is the same that he uses in the Taney case, and it is that Constitutions are not legal agreements, they are political and cultural ones, and that if they are not supported by the politics and culture of the majority. Nothing new there, except that Mark Graber makes a stronger case for this than is warranted. Anyhow see Tocqueville etc. quotes below.

The second argument is encpasulated in "Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture" is that torture is wrong, but this is irrelevant if public opinions is in favour, and this follows from the previous argument, so changing public opinion is far more important than insisting on the respect of unpopular laws.

Both I think are fair points as far as they go -- because in the end unpopular laws can only be enforced with guns, "ultima ratio regum" and not just of kings.

Quotes from Tocqueville:

«When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To the executive power? That is appointed by the majority and servers as is passive instrument. To the public police force? They are nothing but the majority under arms. To the jury? That is the majority invested with the right to pronounce judgements; the very judges in certain states are elected by the majority. So, however unfair or unreasonable the measure which damages you, you have to submit.
A striking example of the excesses which the despotism of the majority may occasion was seen in Baltimore during the war of 1812. At that time the war was very popular in Baltimore.
A newspaper opposed to it aroused the indignation of the inhabitants by taking that line. The people came together, destroyed the printing presses and attacked the journalists' premises. The call went out to summon the militia which, however, did not respond to the call. In order to save those wretched fellows threatened with by the public frenzy the decision was taken to put them in prison like criminals.
The precaution was useless. During the night the people gathered once again; when the magistrates failed to summon the militia, the prison was forced one of the journalists was killed on the spot and the others were left for dead. The guilty parties, when standing before a jury, were acquitted.»

«I said to someone who lived in Pennsylvania: "Kindly explain to me how, in a state founded by Quakers and celebrated for its tolerance, free Negroes are not allowed to exercise their civil rights. They pay their taxes; is it not fair that they should have the vote?"
"You insult us," he replied, "if you imagine that our legislators committed such a gross act of injustice and intolerance."
"Thus the blacks possess the right to vote in this country?"
"Without any doubt."
"So, how does it come about that at the polling-booth this morning I did not notice a single Negro in the crowd?"
"That is not the fault of the law," said the American to me. "It is true that the Negroes have the right to participate in the elections but they voluntarily abstain from making an appearance."
"That is indeed very modest of them."
"It is not that they are refusing to attend, but they are afraid of being mistreated. In this country it sometimes happens that the law lacks any force when the majority does not support it. Now, the majority is imbued with the strongest of prejudices against the blacks and the magistrates feel they do not have enough strength to guarantee the rights which the legislator has conferred upon them."
"So you mean that the majority, which has the privilege of enacting the laws, also wishes to enjoy the privilege of disobeying them?"»

[Blissex]

«But I do see TWO ARGUMENTS here, and implicit one.»

Ah I forgot the implicit one: it is that instead of spending more money to gather intelligence, find proofs and thus raising taxes on USA voters, it is much cheaper to torture "people who do not look like us" as a cost-saving shortcut. Public opinion realizes that is much cheaper to torture a few thousand nobody-cares just in case, than to raise taxes on deserving, hard working "people who do look like us" to pay for better intelligence.

So those who think that the constitution is more than a piece of paper full of precatory verbiage should give that up and make the case for raising taxes on "people like us" to spare a few thousand nobody-cares "unpeople who are not like us" some cost-saving techniques.

Basically, the implicit argument is that USA voters care what's in it for them as to the case against torture, not what's in it for the potential victims of torture, who are all brown-skinned nobodies with funny foreign names, and this is what matters when one is against torture.

Finding the substantive argument against the "f*ck them, we are fully vested" position as to brown skinned suspects is more important than insisting on quaint notions like legalism which never had much traction in USA politics anyhow, except where it benefits the ruling classes.

[ogmb]

Top Bush aides pushed for Guantánamo torture:

http://www.guardian.co.uk/world/2008/apr/19/guantanamo.usa

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways.

"The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans.

"At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job".

He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

Why oh why can't we have a press like the UK?

[Q the Enchanter]

"let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials...."

For better or worse, "authors of legal materials" isn't a category in legal ethics. Whereas "counselors providing legal advice to clients" or "officer of the court making representations to the tribunal" are.

[Matt]

The Dread Scott decision was flawed because the Constitution gave no guidance on the issue. By designating the 3/5s rule and identifying slave holding states, the Constitution implied that slave were a peculiar institution. If slaves were pure property, then they would have never been mentioned in the constitution.

[Matt]

So, getting interest in Dred Scott, I ask myself what is the complementary decision, what rights did free negroes have in the South during antebellum

"In spite of their skill and efforts, free black workers still faced many problems in a slave-holding society. For example, Charleston's City Council attempted to fix the wages of free blacks at $1 per day or 12 [cents] an hour. In addition, many whites were hostile to the high skill levels of free blacks. While many whites avoided "black jobs," there was increasing competition for jobs by the late antebellum and this increased the hostility of many whites against African-Americans.

In 1848 Charleston enacted a law that required free blacks to obtain and wear a tag - which ironically was decorated with a liberty cap [see example at right]. "

From E. Horace Fitchett observed in his 1940 study of free blacks.

So Mark Graber has to explain how is it that free states are required to enforce slave state property laws, but slave states are not required to enforce the laws of free states?

And Answer.com tells me:

"But if the presence of slavery helped elevate their [southern Free negroes] economic status, it severely limited their opportunities for political or communal activism, for southern whites looked upon free Negroes as the chief inspiration and instigators of slave unrest. Whites not only prevented blacks from voting, sitting on juries, and testifying in court but also barred them from traveling without permission and meeting without the supervision of whites."

So, clearly, absent the Civil War, the Dred Scott decision would have led to an entire body of law describing the rights of a 3/5 free human in the South, and a 3/5 slave in the free North.

Sound familiar? Looks suspiciously like affirmative action.

[Blissex]

«So, getting interest in Dred Scott, I ask myself what is the complementary decision, what rights did free negroes have in the South during antebellum» But then the question becomes why slavery of white people was not legal either. And the Taney Supreme Court answered that: because the slavery of the blacks was justified by their being human only biologically, but not part of "we the people". And here we have two categories of political/ethics theories: those in which humans are always as humans subjects of the rights, and those where some are and some are not. Some humans are people and some are "untermensch", either because they are differently colored, or of lower income, or enemy combatants or whatever. That distinction still matters in the USA, but not in many other western countries (even i it was popular in the last century).

[Matt]

Blisex makes the same point I was, either we had to invent something between property and human, or leave the Constitution uncertain about the issue.

If Taney knew his stuff, and the nation wanted to avoid war, then moving the whole issue into new body of law, creating the legal framework for a semi-citizen might have worked. There would be federal guarantees for free semi-citizens in the South. In the North, the logical outcome would be that slave labor is illegal, but with a semi-citezen warrant, a slave holder could at least take the slave home, though state law would have prevented him from working the slave in a free state.

It is a hypothetical, obviously, but it would have been a step away from racism, not all the way, but perhaps enough to accommodate change.

[Blissex]

«creating the legal framework for a semi-citizen might have worked» But the South was not about creating "semi-citizen" in the legal sense, it was/is about the political and social practice to regard some biological humans as not-people, never mind not-citizens. And this is what recurs through history, and USA history too: the tribal convention to regard some conveniently chosen category of biological human as not-people. Whether or not this is enshrined in law.

[foobar]

http://www.guardian.co.uk/world/2008/apr/19/guantanamo.usa

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways. ... He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

Would it not be just bloody wonderful if Professor Yoo goes abroad and gets arrested as a war criminal? It would sure do much to confirm Berkeley's reputation.

[non-lawyer]

And so the scholarly and nuanced excuses for the decay of America are now in full swing.

Blissex reminds us, however, that they don't carry much weight outside the US. While the intellectuals are diddling with themselves the rest of the world retains clear focus on what we are about here in God's Country.

Blissex makes another good point. It's bad enough that the Bush administration actively led us down this path but it's depressing and disconcerting how many Americans are now on board.

Crimes were committed by the Bush administration (ongoing) but now the larger crime is unfolding in which America provides them with both cover and shelter.

[Roger Bigod]

Graber is a moron, and your analysis is correct, but only up to a point. Opinions weren't as polarized in 1789 as they were in 1857. Abolition was a respectable position in the South, mainly because tobacco had turned into a bad business and slavery was economically advantageous only with a habor-intensive crop. All the colonies had had slavery at some point, so it wasn't foreign to the Northerners. My favorite Framer, Gouverneur Morris denounced it at the Convention, but not in moral absolutist terms. He said that it tended to depress and corrode the whole tone of a society, as one could tell by traveling through slave and free areas. The delegates not only tolerated this, they let him write the working draft, including the wonderful first sentence. The same speech in Congress in 1857 would have produced a caning from a nutcase Southerner.

The unexpected events included the invention of the cotton gin and the explosion in demand for cotton from the English mills. This led to prosperity in the South, but an acute dependence on slavery.

Probably more important, but difficult to analyze, is that the whole civilized world decided slavery was wrong. In the North, pride in the US was associated with pride in the founding principles, in particular the opening of the Declaration. The modern parallel would be the revulsion of the civilized world over apartheid. It took years for the rulers of SA to "get it", but they finally came around. Arguably, the South would have arrived at the inevitable conclusion and a less destructive solution found. It's not pleasant to comtemplate the possibility of slavery lasting a couple of decades longer than it did, but the actuality of what happened to the former slaves for many decades is not a happy consideration either.

Because it was so destructive, there's a sunk cost fallacy. Nobody likes to think that soldiers died for a joke (e.g. Nam), so there's a lot of tiresome mythology on both sides. The cult of Lincoln vs. the cult of Lee, for example.

[Blissex]

«It's bad enough that the Bush administration actively led us down this path but it's depressing and disconcerting how many Americans are now on board.» As to this, if this is any consolation, there are quite a few supporters of torturing "just in case" brown skinned un-people in Europe and other countries too, and (some) european governments have actively if secretly supported CIA secret prisons and renditions too. The main (and large) difference is that even where torture would be popular the european political elites have by and large refused to pander to that, never mind leading enthusiastically towards it. In part because the culture has more scruples and less "whatever it takes" attitude to "winning", but also because European politicians do understand (sometimes better than their voters) how stupid and vile and corrupting is torture, as a particular case of the attitude to treat as not-people anybody who is human.

[Blissex]

«My favorite Framer, Gouverneur Morris denounced it at the Convention, but not in moral absolutist terms. He said that it tended to depress and corrode the whole tone of a society, as one could tell by traveling through slave and free areas.»

Relevant quote from Tocqueville (writing around 1820) appended. Of course however the decay worked by slavery does not matter to its proponents, because even if makes the whole country poorer, it splendidly rewards its winners, and in a certain view of the world (common in South America) only class A (winners) people matter, what happens to class B (nobodies) not-people does not matter.

«Because it was so destructive, there's a sunk cost fallacy. Nobody likes to think that soldiers died for a joke»

That's a bit excessive. My impression is that the United States soldiers did not die in vain: the blood of the North washed the guilt of having associated and tolerated slavery for so long. This is why I think any demand against the United States for restitution by some quarters of the black community is so wrong: the United States have already made restitution in blood. Many, many light skinned United States citizens died to free their dark skinned compatriots.

Conversely for the Confederate soldiers: to their eternal shame they sacrificed themselves in great numbers to uphold the right of their corrupt elites to imprison in slavery their own compatriots.

Thus the persistence of racism in the South: if slavery and racism were justified, then that was a righteous sacrifice to defend against unjustified oppression ("states rights"), not a breathtakingly stupid and vile way of being suckered by their elites into sacrificing their lives to maintain their elite's criminal profits.

The quote from Tocqueville about the economic consequences of having a not-people ideology:

«The stream named by the Indian as the Ohio, or the Beautiful River, irrigates one of the most magnificent valleys in which man has ever made his home.»

«On the left bank of the river the population is sparse; occasionally a troop of slaves can be seen loitering in half-deserted fields; the primeval forest grows back again everywhere; society seems to be asleep; man looks idle while nature looks active and alive.

On the right bank, by contrast, a confused hum announces from a long way off the presence of industrial activity; the fields are covered by abundant harvests; elegant dwellings proclaim the taste and industry of the workers; in every direction there is the evidence of comfort; men appear wealthy and content; they are at work.

The state of Kentucky was founded in 1775, Ohio just twelve years later; twelve years in America is more than half a century in Europe. Today the population of Ohio is already 250,000 greater than that of Kentucky.»

«On both banks of the Ohio, nature has endowed man with an enterprising and energetic character, but on each side od the river men use this shared quality in quite different ways.»

«The white man on the right bank, being forced to live by his own efforts, has made material prosperity his life's main aim. [ ... ] There is something wonderful in the ingenuity of his talent and a kind of heroism in his desire for profit.»

«The American on the left bank not only looks down upon work but also upon those undertakings which succeed through work.»

[Blissex]

«In the North, pride in the US was associated with pride in the founding principles, in particular the opening of the Declaration»

But even so that was never regarded as applying to the redskins.The great advantage of the blackskins was that they did not "own" anything worth taking other than their labor (the cost of which was low anyhow), so recognizing them as subjects of rights instead was a lot less of an opportunity cost than for the redskins.

[Blissex]

«It's bad enough that the Bush administration actively led us down this path but it's depressing and disconcerting how many Americans are now on board.»

But rereading this wait a second: surely the Bush administration contained a lot of people that seemed to think in terms of people (us) and not-people (them). But I reckon, and just myself, that in large part they reacted to polls showing a strong, popular demand for torture and brutality against anything and anybody who looked bad (e.g. brown skin, beard, funny name), as "better safe than sorry".

The Bush administration looked at poll numbers, their own inclinations, and pandered massively to popular demand for whatever it takes. Indeed both Republicans and Democrats (worrying more about re-election) tried to outdo the Administration as to demanding brutality, pandering even more to the popular demand for results at any costs to a few thousand un-people. From the Financial Times in 2006:

http://news.FT.com/cms/s/2817d81c-b067-11da-a142-0000779e2340.html

«But is clear leaders of both parties lack the confidence to challenge the mood of xenophobia that exists outside Washington. Instead they are fuelling it. In some respects the Democrats are now as guilty of stoking fears on national security as the Republicans. Their logic is impeccable. A majority of Americans believe there will be another large terrorist attack on American soil.
Such is the depth of anxiety that one-fifth or more of Americans believe they will personally be victims of a future terrorist attack. This number has not budged in the last four and a half years."»
«Mr Bush has consistently received a much higher public trust rating on the war on terror than the Democrats.
Without this -- and without the constant manipulation of yellow and orange terror alert warnings at key moments in the political narrative -- Mr Bush would almost certainly have lost the presidential race to John Kerry in 2004.»
«In other words, the Democrats have found an effective way of neutralising their most persistent electoral liability: they are out-Bushing Mr Bush.
It is easy to see why key Democrats, including Hillary Clinton, have adopted this strategy. It is easy also to see why their Republican counterparts are following suit. As Peter King, the Republican representative for New York, said last week: "We are not going to allow the Democrats get to the right of us on this issue." This left Mr Bush holding the candle for the left, as it were.»

[Roger Bigod]

>

My impression is that this is a doctrine of collective guilt and collective punishment, which is anathema to the Enlightment principles we honor Jefferson and Morris for upholding. Plus, it's wildly illogical. The southern part of England where the Virginia gentry came from was the last to give up slavery. But they did it without a war. Are they under an eternal curse until they have an appropriate fraction of their young men die in battle? How about their descendants? And how do we know that the 600,000 killed in the Civil War was the appropriate number? If it wasn't enough, should we sacrifice guys of military age on pyres, or what?

Trying to use history as fodder for ones personal morality play weighs like a nightmare on the brains of the living. I'd like to demolish the Confederate memorial monument on the local courthouse square. OTOH, I find the "Battle Hymn of the Republic" nauseating. And I suspect Thaddeus Stephens's net contribution to the human enterprise was strongly negative.

>

This displays impressive ignorance of the history. From the first, the British recognized that the Native American had ownership rights in land and in many cases constituted separate nations for treaty purposes. In many cases the rights were violated, but the general principle of legal standing has never been a issue. Native American ancestry has never been subject to the social stigma that African ancestry was. Indeed, genealogists fabricate records to prove descent from Pocahontas. The issues with Native Americans concerned cultural assimilation. I'm not aware that there was a claim of biological inferiority justifying denial of legal status, such as the one in Dred Scott.

"Redskin" is generally considered a racial epithet.

[Roger Bigod]

The quote I meant to reference was:

My impression is that the United States soldiers did not die in vain: the blood of the North washed the guilt of having associated and tolerated slavery for so long.