Thoughts on the Law, the Legal Process, Constitutional Interpretation, Rhetoric & Evidence, Originalism, and Dobbs

Some thoughts: 

1. Law is a set of codes & standards of conduct enacted through speech. 

2. To be effective, the law must have legitimacy; to wit, people must recognize the validity of the courts & the state in promulgating & enforcing the laws. Of course, force becomes the final arbiter, but every regime needs to economize on the use of force. 

3. In order for a system of laws to be effective, they must be seen as (in some measure) legitimate, just, & predictable (non-arbitrary). 

4. Courts at all levels write opinions or speak from the bench seeking to justify their decisions (at least in American courts). All of these statements seek to justify a decision, from small claims to the Supreme Court. 

5. Decisions must be justified by reference to the evidence in the case (testimony and non-testimonial exhibits) and application of the law(s) to the particular case; i.e., what is the appropriate law to apply. 

6. Our laws come from acts of the legislature (Congress, state legislatures, city councils, etc.) and from judicial precedent (common law). 

7. Every decision requires an “interpretation” of the law to the circumstances; sometimes it's quite simple because the law (precedent or statute) is quite specific, and sometimes the law is frustratingly vague. But each decision requires an act of interpretation and application of the relevant law. 

8. And while there are some principles & maxims about how to interpret & construct the laws, they are few & not often binding; and this is especially so in matters of constitutional law. 

9. In arguing a legal position, a lawyer or judge is constrained only by the rules of sound rhetoric. The judge or lawyer can call upon precedent, logic, experience, common sense, intuition, or other considerations that the decision-maker (the judge or jury for the lawyer; the parties & the public for a judge) considers legitimate and persuasive. 

10. The consequences of a decision always play a role in the decision-maker's final decision; sometimes those consequences are acknowledged and apparent; sometimes consideration of the consequences is sub-silentio. And consideration of the consequences goes beyond the parties to the lawsuit and considers the public and posterity as well. (E.g., What precedent does this set?) 

11. “Originalism” in constitutional law is an interpretive and rhetorical conceit.  Originalism seeks to fix the meaning and application of a constitutional provision to the meaning and intention claimed to have been held by the original drafters of the provision. In some instances, there is no contention about such a provision; for instance, in order to qualify to serve as president, a person must be at least 35 years of age and born in the U.S. The statement of this provision is precise, concise, and utterly unambiguous. As to “right to bear arms,” “due process of law,” and “cruel and unusual punishment,” to take three familiar examples, the issue becomes more complex. 

12. My preferred argument against an originalist-only interpretation and application of the more ambiguous terms in the Constitution (e.g., “due process” and “cruel and unusual punishment”) is that the Framers—and those who later amended the Constitution—were not so foolish as to believe that their words were not open-ended and therefore would need constant interpretation and application. Would they not have known and even encouraged those coming after them to revise, refine, and further elucidate those concepts? Indeed, would they not consider posterity utterly foolish if posterity did not continue the project of building and refining a constitutional order? The ink was barely dry on the original Constitution before Madison (its primary author) drafted a bill in Congress to amend the document (the Bill of Rights). And Chief Justice John Marshall in the early 1800s went about refining and elucidating the Constitution through Supreme Court decisions. To think that the Framers and their progeny, especially the Reconstruction Congress that drafted and sent to the states the 14th Amendment, wanted us to freeze their concepts in time in an insult to those individuals, an unmerited insult. (The 14th Amendment applies “due process” and “equal protection” provisions to the states.) 

15. In fact, for law in general, and for constitutional jurisprudence in particular, there is no definitive mode or method of interpretation and application of constitutional provisions. The standard is one of persuasiveness within the legal and political community and with the public, as well. (The length of Justice Alito’s majority opinion in Dobbs v. Jackson is indicative of the importance and difficulty of justifying the Court’s decision to overrule Roe and Casey. 

16. Originalism is a fig-leaf that seeks to conceal the pre-determined result position in the case of Dobbs v. Jackson. Overall, originalism is a tool that works to roll back the expansion of constitutionally guaranteed rights established by the Supreme Court in the 20th century. 

Electrifying The Titanic: The Shipwreck of Industrial Civilization by William Ophuls (2021)

2021 coda to Apologies to the Grandchildren

This booklet (50 pages) is vintage William Ophuls. Brief, pungent, to the point. In fact, it’s probably best seen as a coda to Apologies to the Grandchildren: Reflections on Our Ecological Predicament, Its Deeper Causes, and Its Political Consequences (2018). I recommend reading Apologies first, but then I’d recommend reading his entire body of work. So, start where you will, but start. 

In Electrifying the Titanic, Ophuls breaks no new ground. His theme throughout his books, especially those published in this century (beginning with Plato’s Revenge) share a common theme: our industrial civilization is destined for a reckoning, and the reckoning will not see the survival of industrial civilization. The causes are many, including some causes suffered by civilizations in the past. Our civilization is outrunning its resources, including the resources needed to address its “waste.” Of course, it’s become obvious to all but those most determined to remain obtuse that we no longer are looking at the reality of climate change as a reality ahead of us; we are in the midst of it. And to allow the human project to survive, we will need to see a complete change in our ecological, economic, social, and political systems. Entire worldviews need to change. 

Sounds too much like Chicken Little’s warning that the sky is falling? I wish that I could believe that, but I fear—yes, fear—that Ophuls is on to something. We seem destined to keep our heads in the sand as long as possible to extend the status quo that's melting (literally) before our eyes. We have leaders who acknowledge the problem, but who are unable to move the procrastinators, gamblers, and Pollyannas. We need to slam on the brakes before we collide head-on with reality. Of course, if this seems too harsh, too “alarmist,” then don’t read Ophuls. Ophuls writes with the voice of an Old Testament prophet or (as he apparently is), a Buddhist master who brooks no excuses.  I believe that Ophuls is a Buddhist meditation teacher as well as a leading thinker in the field of ecology, civilization, and politics. His book on Buddhist meditation is aptly titled Buddha Takes No Prisoners. So if you’re looking for solace and encouragement, go elsewhere. On the other hand, if you’re willing to hear a prophetic voice, listen up! 

Again, this isn’t the place to start reading Ophuls, but still, he covers some basics. In short, we can’t continue to consume at the rate that we have been. Much of our efforts will now have to go into preserving what we have, not expanding our capabilities. A replacement bridge, for instance, adds to GNP but it doesn't expand our capabilities. Much of what we do to keep our economic machine humming along involves piling complexity onto complexity in an effort to solve, or more often, simply to postpone resolving our problems. At some point—forced by circumstances—we’ll have to reduce and simplify. Unfortunately, our path of development has kicked the lower (simpler) rungs of the ladder out from beneath us, which will cause a sudden fall and preclude a climb down. When all is said and done, Ophuls believes that we humans will once again become primarily an agricultural species. (In an earlier work, borrowing, I believe, from William Irwin Thompson, Ophuls hopes for something like “Bali with electronics.”)

But is a dignified retreat or realignment of our civilization possible? Ophuls isn’t optimistic. He notes that the American constitutional system doesn’t fit well in our contemporary world. Indeed, he describes the U.S. constitutional regime as “antiquated.” Also, the civil society upon which Tocqueville saw American democracy based has declined precipitously. We lack an “authoritative standard of virtue.” And addition to the disorder of our current political regime, we have “thermodynamic debts” as a result of “degradation, decay, and disorder." All of these factors bode a “time of troubles” ahead. 

Recognizing that our political regime is likely to fail the current challenges, the best advice that Ophuls has to offer is the practice of Machiavelli’s virtu; that is, strength of heart and mind in the face of daunting fate. We will live again in the world of Thucydides, in which the strong will prey upon the weak. We will need Machiavelli’s ethics—a willingness to use evil in the pursuit of a higher good—even more in the future than we have in the past. 

Is the analysis of Ophuls correct? Over the course of his books that I’ve read, I find his case convincing. I’d love for him to be proven wrong; but I fear he’s being proven right. If I could wave a wand and awaken the world to our plight; make the human race utterly sensible; and make politics truly functional for the greater good, I would happily do so. But I can’t do this; no billionaire can do this (and even those hoping to do so). All we can do is muddle through, hoping that we act before our situation deteriorates too much further, as indeed it is deteriorating—despite improvements—by the minute. Truly, Ophuls is a prophet crying in the wilderness hoping to turn the people from their folly, their idolatry. But prophecy is neither fortune-telling nor mere forecasting. It's a call to create the future via an appreciation of the consequences of our choices. 

We’d all be wise to weigh the words of this prophet. 

A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives

Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:

"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."

I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:

100.7 Credibility Of Witnesses.  

Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 

Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 

There are many factors which you may consider in deciding what testimony to believe, for example: 

1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.

In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020

Bob Bauer Takes Down Dershowitz Impeachment Defense (Easy Pickings)

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. He wrote this piece for the Lawfare blog (an excellent source of legal analysis). It includes this concluding paragraph:

"In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal."

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

LAWFAREBLOG.COM

The Trump Impeachment and the Question of Precedent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

George Conway Takes Down the Trump Impeachment Defense

Lincoln Project supporter & lawyer George Conway.

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

WASHINGTONPOST.COM

Opinion | George Conway: The worst thing about Trump’s answer to the impeachment articles

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

Heather Cox Richardson on the Eve of the Senate Trial: The Non-trial Trial

From @HeatherCoxRichardson:

“For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.

The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.”

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

HEATHERCOXRICHARDSON.SUBSTACK.COM

January 20, 2020 - Letters from an American

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

NYT & Professor Bowman Debunk Trump's Defense Brief

No lawyer sitting in the Senate should buy this baloney argument on Trump’s behalf. But if you don’t have the facts, argue the law—even if it’s a crap argument.

From the article:

“Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.”

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.

NYTIMES.COM

‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.

Former Iowa Senator Tom Harkin: 100 Judges, Not 100 Jurors

Tom Harkin link.

“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW”

TWITTER.COM

Steve Greenleaf on Twitter

“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW”

Bob Bauer Takes Down Mitch McConnell's Argument re Impeachment

A thoughtful lawyer's brief that deconstructs McConnell's arguments against Trump's removal from office brink-by-brick. McConnell is the epitome of hypocrisy and double-talk, but he usually doesn't have to enter into an arena that includes knowledgeable folks who understand legal process and argument. Here he encounters such a response--and he loses, bigly.

N.B. This includes a rejection of the argument of "no crime, no foul" so often claimed by Trump's defenders.

In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.

LAWFAREBLOG.COM

The Trump Impeachment and the Question of Precedent

In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.

Looking at the Constitutional Convention & High Crimes & Misdemeanors"

A deeper look at the debate that occurred at the Constitutional Convention in 1787 and that incorporated impeachment for "High Crimes and Misdemeanors" into the Constitution.

If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is

SMITHSONIANMAG.COM

Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense

If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is