Friday, December 20, 2013

Holmes and the New Originalists

Justice Holmes is at leisure during the holiday recess, but I am moved to protest mildly at the manner in which he is described by a leading proponent of the New Originalism, the set of doctrines whose premise is that the text of the Constitution, as understood when it was adopted, should be applied to resolve modern disputes. Lawrence B. Solum is a prominent and articulate leader of this school of thought, and is particularly distinguished by his efforts to clarify its theoretical basis. In a recent post on his Legal Lexicon blog, Professor Solum lays out the new theory as a subset of what he calls "Formalism," a hard-minded approach to law. As applied to the Constitution, it calls for application of the rules found in that text without much regard to judges' views of the purpose or wisdom of clearly stated law. He contrasts this with "Instrumentalism," which he says is the doctrine many law professors teach, and which allows a judge to interpret laws according to their presumed purpose and likely result, rather than according to the meaning of their text.  I don't want to discuss this characterization of two dominant schools of thought, but Solum appoints Justice Oliver Wendell Holmes the father of Instrumentalism, and I do object to that. 

The late Judge Robert Bork, and Justice Antonin Scalia, both contrasted their versions of originalism with the dominant jurisprudence of their day, which considered the Supreme Court a common-law court, and analyzed the manner in which constitutional rules emerged from particular decisions. Holmes is often associated with this view, which is indeed the antithesis of the New Originalism. He is one of the founders of an historical, empirical approach to determining how rules evolve from judges' decisions in particular cases. Holmes observed that the decision comes first, and justifications afterward. Judges in his view often decided on the basis of an "inarticulate premise" not clearly stated in their opinions. Later investigations of the way in which judges in practice decide cases are lumped together under the rubric "legal realism," which soon departed from Holmes's views, but that is another story. 

Holmes's jurisprudence was indeed founded on a theory, one he claimed to have derived from empirical investigation, that the only law which can be said to be enforced or enforceable is the decision of a court which authorizes the government to bring its powers to bear on particular persons. Rules to govern such decisions are derived from study of previous decisions in similar circumstances, rather than directly from the text of statutes or constitutions. Holmes did not think the opinions written by judges were good sources to look at when searching for applicable rules, it was their decisions in particular circumstances which mattered, and gave meaning to rules. Neither Holmes's historical studies nor his search among established precedents produced a theory of textual interpretation like the one Solum refers to as "Instrumentalism." Quite the contrary, the common-law tradition with which Holmes is properly identified searches for enforceable, constitutional rules in another place entirely, in the "body of precedents by which we are bound. . . ." Olmstead v. United States (1928) (Holmes, J., dissenting). 

Friday, December 13, 2013

Did Holmes Change His Mind?

     In this busy time of year, Holmes is paying less attention to our affairs, and won't have much to say for  a while. While he is otherwise occupied, I thought it might be a good moment to talk about the question raised in a fine new book by Thomas Healy, The Great Dissent, which presents us with an old conundrum: Why is Holmes given credit for founding the modern constitutional doctrine of near-absolute protection for the right to speak freely about public affairs, when he was profoundly hostile to talk of rights in general, and wrote several opinions in which he upheld criminal convictions contrary to our modern understanding of the First Amendment? 

One suggestion is that there were two incompatible strands to Holmes' thought. The first is "deference to the legislature," a disposition to allow majority votes to prevail on all questions, including those respecting rights of minorities. The second strand is a tolerance of diversity, and a conviction expressed late in his career, that free debate is essential in a democratic society. 
In the years after World War II, after Holmes had passed from the scene, his disdain for talk of natural rights, and his appalling support for the pseudo-science of eugenics, began to seem darker and more ominous than they had during his lifetime, when they were commonplaces of Progressive politics. He fell even farther out of favor in the 1950s, when his rubric, "clear and present danger," became a favorite of prosecutors in the McCarthy era. I believe it was the scholar Gerald Gunther who first suggested that Holmes had simply changed his mind. Gunther speculated that this had happened in the summer of 1919. Before that summer, Holmes had written three opinions for a unanimous Supreme Court, upholding criminal convictions of persons who opposed the war effort and the draft, while after that summer, he wrote a powerful dissent (Healy's "great dissent") in support of defendants who had been convicted of criminally seditious speech, because they had called for a general strike of workers during the war.

Various causes for this change of mind  have been suggested.  Gunther proposed the hypothesis that a young judge, Learned Hand, had persuaded Holmes to change his mind. Others have suggested Holmes' friend and colleague Louis D, Brandeis as the cause, still others have pointed to the influence of a young law professor, Zechariah Chafee, for whose work Holmes expressed admiration and pleasure. Still others have pointed to the influence of a circle of young men--Felix Frankfurter, Harold Laski, and others, whose praise meant a lot to Holmes.

Healy has collected all these suggestions into one, and propounds a hypothesis that these different influences converged in what amounted to a campaign, over the summer of 1919, to get Holmes to change his mind. The suggestion is put forward well and persuasively, with a great many citations to original documents of the time. In response to counter-arguments, Healy says that Holmes was moved to change his mind by a deep emotional need for the praise that the (comparatively) young men around him offered, that he feared would be withheld if he continued to uphold convictions for political dissent.

OK, this is turning out to be a very long post, but Healey neglects to mention any evidence or arguments to the contrary, and although he mentions my biography of  Holmes he fails to mention our disagreement. Why should this matter? Maybe it doesn't, but the First Amendment doctrines at issue are important and regularly being revisited, and it would be encouraging to know that their history is better understood,

I would like here to try to put the question objectively, to avoid the tribal arguments that so sometimes characterize discussions of questions that are politically charged, of which I too have been guilty. The folks over at the Yale Cognition Blog tell us that once a question becomes the subject of political controversy, arguments become polarized, and factual information is just slotted into the old arguments. The question of Holmes' views on the First Amendment has certainly become polarized in this way, at least among those of us who write about it, and I would like here to try to stick more closely to historic fact and legitimate inference, and avoid assembling an argument to support a predetermined position.

So, let's take a page from the Nate Silvers of the world, and perform a thought experiment. Take Holmes in the spring of 1919, as well as we can describe him in objective terms. What is the likelihood that the influences Healy describes would cause him to change his mind on the important question of constitutional protection for political speech? (You will see, I hope, that I am putting this as a question of probability, in Bayesian terms, as I somewhat dimly understand them).

To summarize briefly what I think is not in dispute: in the spring of 1919 when the Supreme Court adjourned its term, Holmes was 78 years old, a veteran of almost 55 years of law study, practice and service as a judge. Despite his age he appeared to be at the height of his intellectual powers. For the previous twelve years he had been a justice of the United States Supreme Court, but was not yet well known to the public. He was ambitious and somewhat arrogant, and very grateful for the praise of his young followers in the law. His career had been devoted to the study and practice of the English and American common law, and he had not often addressed questions arising under the federal constitution. When he did address the federal Constitution he tended to assimilate it to the common law, saying that the terms of the Constitution expressed principles derived from English common law "transplanted to American soil," and confessed ignorance of the early development of First Amendment doctrine. He usually avoided talk of "rights," which he thought were claims of transcendent principle, and preferred to speak instead about the "privileges" afforded to speech and the press in the common law. He said the phrase "clear and present danger" had emerged from his long study of the common law. Holmes supported US intervention in the First World War, and derided those who opposed both the war and the draft. At the moment in question he had just written three opinions for a unanimous Court, expressing in summary form his belief that constitutional freedom of expression was a privilege which could be defeated by a showing that it posed a "clear and present danger" of causing some harm that Congress had the power to forbid. 

The hypothesis is that criticism he heard of these views during the summer of 1919 caused him to change his mind. What are the chances that criticism from friends would cause him to change his mind over the course of the summer?

If the hypothesis is put this way, it has always seemed to me that the chances that Holmes would change his mind are close to zero. So I would bet on the null hypothesis, that there was no change. The change in language that appeared in his dissent the following fall therefore must be attributed to differences in the cases, and to the greater freedom had when speaking in dissent. That is just a bet, of course, but all  we have are probabilities.

Thursday, December 5, 2013

The New Trail of Tears

Almost a century ago, the United States government forcibly deported Native Americans from the Old Southwest, between the Alleghenies and the Mississippi. "Indian Removal" was authorized by federal statutes, and under that fig-leaf of legitimacy the Jackson and Van Buren administrations removed Indians from their homes to detention facilities, and deported them. In the last stages of this effort, the Cherokee were obliged to make their way on foot from Georgia to Oklahoma territory, a voyage that thousands did not survive.

We are in the midst of a similar deportation program in the new Southwest, from Georgia to Arizona. Two million residents of the United States, the majority of whom are Hispanic and roughly half of whom entered the United States as children, or as adults with permission, have been deported since the program was authorized in 1996. Hundreds of thousands of long-term residents, hard working, tax-paying Americans have been "removed" (that term of art has been revived). Hispanic Removal has very little to do with control of the nation's borders or immigration enforcement, but is targeted at millions of immigrants who have settled here, including those whose status as permanent residents and naturalized citizens is being revoked for minor offenses.

Three quarters of the total, 1.5 million, have been deported by the Obama Administration. Although the president has staunchly championed reform of the immigration laws, he has accepted a deeply flawed bargain with Republicans who have insisted on ever more aggressive "enforcement" of the deportation program. Secretary Janet Napolitano constructed a program in which "criminal aliens" were supposed to be deported, but Congressional Republicans demanded that 34,000 detention "beds" be filled at all times, and 400,000 immigrants deported each year. These quotas are buried in appropriations bills, and so have largely escaped notice. The quotas cannot be achieved without deeply violating the norms of due process of law, and 400,000 immigrants guilty of major crimes cannot be found each year. An out-of-control program of mass deportations has resulted, and has created a human rights crisis.

The Hispanic Removal program depends largely on state and local police, who can be deputized to carry out federal law. Few jurisdictions have been willing to turn over their law enforcement resources to the federal government, however, and the Bush Administration created through executive orders something called "Secure Communities," in which local police are required to inform federal officials of the identity of all those they detain who are suspected of lacking proper immigration or citizenship papers. Many states objected to this removal program, but the Obama Administration has made it mandatory, as the quotas for detention and deportation cannot otherwise be met.

Secure Communities, like the detention camps of Indian Removal, a program of doubtful constitutionality, is essential to Hispanic Removal. Congressional Republicans have reneged on whatever bargain Democrats thought they had made, and insist that any reforms in immigration law depend on increased and ever more cruel efforts to deport millions of immigrants; even the comprehensive reform bill passed by the Senate, S 744, in exchange for a grudging path to citizenship for some number of undocumented immigrants, would greatly expand the population subject to summary "removal" and would redouble the graft-laden system of profitable detention centers.

The removal of Hispanics is made possible by the Secure Communities program, which is a creature of Executive Orders and which the President could abolish with a stroke of a pen. There is no longer any excuse for maintaining it. Agamemnon sacrificed his daughter to secure fair winds for his attack on Troy; as Roger Algase at ImmigrationLawBlogs points out,
Has not President Barack Obama sacrificed the lives, hopes, dreams and family connections, if not the physical bodies, of well over a million people during the past five years on the altar of deportation in order to appease the god of "enforcing the law" and to try to gain fair winds for comprehensive immigration reform?
And is Obama not continuing to sacrifice over 1,000 immigrants each day on this deportation altar?

Monday, December 2, 2013

Do Tribes Have Sovereign Immunity?

As I write this Monday morning the Supreme Court is hearing oral arguments in Michigan v. Bay Mills Indian Community, a dispute that arises out of the tribe's attempt to establish a casino on purchased land, over the objections of the State of Michigan. The tribe is asserting "sovereign immunity" to suits in federal court, a claim that might be decided on narrow statutory grounds, but that might oblige the Court to address the constitutional status of Indian nations, a question governed by confused and often contradictory precedents. 
There are two "sovereign immunity" doctrines. The first was a common-law doctrine that Holmes explained in 1907, Kawananakoa v. Polybank. This was simply the practical result of positive law: property rights were created by law, and so the only claims that could be asserted in a court were those that the lawmaker had created. It followed that a government could not be sued in its own courts without its permission. This "sovereign immunity" rubric does not apply to this proceeding, since Michigan is suing a tribe in federal court, and the claims it asserts are created by federal law, not Indian law. The second sort of "sovereign immunity" is a constitutional doctrine discovered by the Supreme Court in the structure of the federal system, in which state governments are accorded a dignity inconsistent with suits by private individuals in federal courts, unless Congress has granted express permission to extend federal court jurisdiction to such suits. (I am not going to cite precedents, which are numerous, but it is interesting to note that this modern doctrine grows out of suits brought under the Indian Gaming Regulatory Act, which governs the present suit as well.) The question therefore might be posed as a constitutional claim, that the sovereign Indian nations are entitled to the same dignity as state governments, and accordingly are immune from suits in federal court, except when Congress expressly authorizes them. Victory for the Bay Mills Community would help define the inherent sovereignty of Indian nations in our federal system, a sovereignty that as all law students learn was defined almost two hundred years ago by Chief Justice John Marshall, who thought the United States of America was an empire in which Indian tribes held a subordinate and dependent status as domestic, rather than foreign, nations.