Talk About Bad Advice

And from a law professor, no less. I certainly respect Professor Somin's work, but this post is just irresponsible:

As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

I've gone on the record about how people overstudy for the bar exam. But not attending BarBri classes? Reading the books and taking "some" practice exams? That's a really, really bad idea. The costs of failing the exam far outweigh the costs of any extra studying. Go to class, do a lot of questions, read the outlines a number of times, and do some essays.

Taking The Bar?

It's that time again; the time when all the recent law school grads start on the two month path toward the bar exam. The trek involves 3-4 hours a day bar review courses and supplemental studying. But you know what? It's much, much better than actually working full-time. But that's a subject for another time.

I recommend reading LWY's post on the topic. For the most part, I agree with his thoughts. There's no reason to go crazy in May. In fact there's no reason to go crazy in June. I don't think everyone needs to follow the paced program, but if you want to do so, knock yourself out. What's important is to realize that you have no chance of remembering anything you learned in May by the time Contracts or Property rolls around. It's just too much material right now. You'll learn everything in July, when you read the outlines over and over again.

So take it easy for the first month of so. By the time you take the simulated MBE, you'll probably know half of what you'll need to know for the bar. And the reality is, you'll spend the next month studying the material and doing all the PMBR and Barbri questions anyway, and that's when the real studying starts.

Been Very Busy

It's been a while since I wrote my last post, and that's not because I'm bored of blogging or out of ideas. On the contrary, I have a lot to write about, but I just don't have the time to actually sit down and write about it.

When I was looking for a job, I had all the time in the world. Now that I'm working and taking New Jersey CLE courses, I have almost no free time and when I do, I'm too tired to even read blogs, so forget about writing or commenting. Tomorrow will be my first non-Yom Tov day off in over a month.

I hope once these classes end in a few weeks, I'll have time to get into a schedule and find time for blogging.

Heller And The Incorporation Doctrine

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

For Anyone Who Thought It Couldn't Get Any Worse....

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Should We Always Learn Torah? The Lesson of Mordechai

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.

Why Facts Don't Matter

A poll published in today's NY Times states that 84% of Palestinians support the Mercaz massacre. 64% support shooting rockets at towns and cities in the Negev.

That is a very scary number. But the number itself won't affect how people will view the Palestinians. The Left will just use this poll as evidence that we need a political solution and the longer we wait, the more angrier the Palestinians will get and the chances of an Intifada breaking out will only get higher. The Right will point to this poll as a reason to suspend negotiations, because how can we negotiate with people who overwhelmingly support mass murder of civilians?

All data regarding to the Israeli-Palestinian conflict are processed through these frameworks. One side believes that the Palestinians are essentially like us and would cease violence if they saw a real light at the end of the tunnel. They only support violence because they are helpless and feel as if they have no other choice. Give them a state and freedom and the majority will live in peace with Israel. The other side denies that the Palestinians are basically like us westerners and claim there is no evidence the Palestinians will ever want peace. The Palestinian refusal to make real peace could be based on genetics, the nature of Islam, or just some nationalistic ideology that promotes irredentism.

Obviously the policy preferences of these groups reflect these assumptions. The first group supports the peace process no matter what and will never allow violence to stop peace talks. That is because peace talks are the antidote to violence. While some groups in Palestinian society benefit from the status quo, they will be marginalized once the peace process is completed because majority of Palestinians will no longer support their cause. The other side sees negotiations as futile at best and suicidal at worst. The Palestinian ideology does not allow for peace and the peace process will only facilitate their ultimate goal, which is the destruction of Israel.

This poll will only strengthen the beliefs of both sides. the first group will argue that we need to push the process faster, because once we have something in place in the West Bank, the Palestinians in Gaza will reject Hamas. The other side claims that negotiations with a people who support murder is idiotic.

Either way new facts aren't going to change anyone's views.

As an aside, the pollster Khalil Shikaki was almost killed a few years ago by Palestinians for reporting his findings that the vast majority of Palestinians would not choose to return to Israel if they had a right of return.

Even Gedolim Fall Prey To The Availability Heuristic

The Availability Heuristic is psychological phenomenon in which people base their opinions on certain events that are fresh in their minds, while ignoring other events that offer contradictory evidence against their beliefs. For example, many baseball fans believe that certain players are clutch hitters, guys who come up big when it counts. In reality, such players are non-existent.

A good example is Mark Lemke. Anyone who grew up watching baseball in the mid-90s knows exactly who I am talking about. Lemke was the second baseman on the Braves dynasty teams that won pretty much all the NL East division titles in the 90s. Lemke's career numbers were well below average, according to conventional and advanced metrics. His career OPS+ was 71 and his EQA was .230. His career batting average and OPS were .246 and .641 respectively.

But Lemke was known as a clutch postseason player. Even Hall of Fame greats are drinking the koolaid:

"Chicago Cubs right-hander Greg Maddux says Lemke is the best clutch hitter he's seen, and Giants outfielder Barry Bonds says Lemke turned into Babe Ruth during October."

Babe Ruth? That's high praise coming from a guy who actually hit like Babe Ruth in one postseason. I'd expect Lemke's post-season numbers to be substantially better than his career stats.

But they aren't. While Lemke's postseason OPS was .688 (a solid 47 points higher than his career OPS) the real Babe Ruth's playoff SLG was .744 almost 60 points higher than Lemke's OPS. Even the greatest choker in the history of the world has a playoff OPS of .844, which is more than 150 points higher than Lemke. Something tells me there were tougher outs in the postseason than Mark Lemke.

So why does everyone think Lemke was so great in the postseason? Because he had a number of big games:

"[I]t's the 1991 World Series against the Twins that's stamped in everyone's mind.
Lemke's RBI single won Game 3 for the Braves, and he scored the game-winning run in Game 4. Then he hit two triples in Game 5 and finished with a .417 average, even though he started the series 1-for-7."

Lemke had a big series and suddenly everyone think he was a dominant postseason force. They remember the series when he hit .417, but not the two series when he batted .167. They can recall his dominant 1996 NLCS in which he slugged .630, but not his awful 1995 NLCS when he slugged only .167. It's human nature to have certain events stand out and to forget the other less memorable events.

This cognitive flaw manifests itself in a number of other instances. For example, a lot of parents asked their children not to take buses while spending their year in Yeshiva or Seminary in Israel. These parents were influenced by the endless news reports of suicide bombings in Israel during the Intifada. Surely suicide bombings created a real risk, but the risk was greatly overexaggerated. Buses made literally dozens of runs a day and hundreds a week. What were the odds that a person's child would be on the specific bus that was targeted? There was probably a greater risk taking a cab and being killed in a car accident.

It seems even the Gedolim are not immune from these heuristics. Rav Chaim Kanievsky, one the biggest Gedolim in Israel, recently prohibited using Arab labor in Yeshivos. His argument is that we are at war with them and employing them poses a grave risk to Jewish life (he also argued that jobs should be categorically given to Jews over non-Jews if financial feasible).

But does that risk really exist? Surely there is a greater risk in hiring Arabs over Jews in almost all situations, but there is also a greater risk in driving than walking. There is a cost-benefit analysis that must be undertaken here. Is there a serious risk in hiring Arabs, one that is not offset by the benefits?

Israeli Arabs, even the ones in East Jerusalem, have been relatively benign since the start of the Intifada. Sure, there were the riots when the Intifada broke out and there was a terrorist attack carried out by an Israeli-Arab, but overall they have been on the sidelines since the 2000. The Merkaz massacre was committed by an Arab from East Jerusalem, and there have been other instances of terror from his village (and see this article about the favorable response to the murders in his village). But when hiring an Arab living in Israel, the odds are strongly against the employee being a terrorist. There are thousands of Arabs working in Yeshivos and universities who have never been implicated in a terrorist attack (or the planning of such attack), which is the overwhelming majority. Again, it wouldn't shock me if I found out that the students had a better chance of being killed when going on tiyulim.

Decisions need to be made after doing proper research. It doesn't seem like that was done here.

Randy Barnett On The Living Constitution

I've been busy the last few days, so I haven't had much time to blog. Check out Randy Barnett's response to Michael Dorf's essay on Living Constitutionalism. Here's a preview:

"In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution."

Also see Lawrence Solum's take on Dorf's article.

Good Point

I haven't written about the concert ban, partly because there is nothing really to say that hasn't been said already.

But this is a great comment on Hirhurim:

"Can some on explain to me why signing this ban did not constitute malbin pnei chaveiro b'rabbim?Why do child molesters get dealt with "behind the scenes" but not people who by all accounts work leshem shamayim and have not done nothing assur, even if their behavior may raise legitimate concerns among the rabbinic leadership?Something is rotten in the state of yiddishkeit."

And of course, why do people who harbor child molestors get to sign the Kol Koreh with the rest of the Gedolim? Something is rotten indeed.

Putting Things Into Perspective

My week-long debate with Chardal over transfer has yet to reach an impasse, but it led me to think about putting the rocket fire in Sderot and the Intifada in perspective. Chardal argues for transfer partly because he believes it will lead to less overall suffering than what will occur without transfer. I argued that transfer will create tremendous amounts of suffering, including for Israelis. Chardal responded,

"What the heck do you think is happening now??? at least then there will be an end in sight and not this impossible situation."

I've encountered this attitude elsewhere, and I while I sympathize, it is wrongheaded.

Let's take a look at how many Israeli civilians have died since 2000. Israel's foreign ministry has a chart that goes until 2006. 1146 Israelis were killed by Palestinian terrorists between 2000 and 2007. That's a total of around 164 Israelis a year. That's an unfortunate number, but let's be realistic.

The U.S. Department of Justice keeps homicide statistics for all the large cities in the US. Anyone who has ever lived in New York City knows that it used to have a much higher murder rate than it does today. Now it is considered one of the safest big cities in the US. So let's compare NYC and Israel.

According to the Foreign Ministry's chart, the worst year of the Intifada was 2002. That year 451 Israelis were killed by Palestinian terror. Since it is simplistic to account for only terrorism and not regular homocide, let's add up the two to determine the total number of Israeli civilians killed illicitly by others in 2002. This chart lists the total murders in Israel over time, but it does not have the numbers for 2002. Since in 03 the number was 206, let's assume 199 people were murdered in 02. That makes the total number of murders from terrorism and regular homocide 650. Moreover, 328 Israeli soldiers were killed in battle with Palestinian terrorists from 2000-05. Since I don't have more exact numbers, we can apportion roughly based on how many Israeli civilians were killed each year. So let's assume 150 soldiers were killed in 2002, 100 in 2003, and the rest in 2000, 2001, 2004 and 2005. Israel's population in 2006 was 7,116,700 but let's only use the Jewish population for this study, which is 5,394,400. Since I can't find more exact numbers for all the years, we'll use that number from the year 2000 and on.

If we use these numbers, the total number of deaths from terrorism, homicide and war per 100,000 people in Israel in 2002 was 14.8. Let's take NY in the same year. Population: 8,008,288, homicides: 587 for a homicide rate per 100,000 of 7.3. So Israel was definitely less safe than NY at the same time.

But what about other years? Let's take NYC during the Guiliani era. In 1995, a year when I took the subways from YU through Harlem and Washington Heights all the time, NYC's population was 7,332,564 and 1177 people were killed. The rate was 16.1 murdered per 100,000. So one had a greater chance of being murdered in NYC in 1995 than one did in Israel during its single worse year since Oslo.

2003 was also a bad year in Israel. About 516 people were murdered, including 210 in terror attacks, which is 9.6 per 100,000. NY had 597 murders. which is 7.5 per 100,000. So one was more likely to be murdered in Israel during the height of the Intifada than in NYC. By 2004, however, NYC was a more dangerous place, with 7.1 murders per 100,000 to 6.1 in Israel (if we assume 40 soldiers were killed that year). The numbers in Israel have gone down substantially since 04, with only 30 people killed in Palestinian terror attack in 2006. If we overestimate the number of homicides at 200, that means 230 were murdered for a rate of 4.3 per 100,000. That is substantially less than the rate in NYC right now.

Even if we take into account the second Lebanon War, and presume 200 homicides occurred in Israel in 2006, Israel's death per 100,000 is only 7.3, which is actually lower than the rate in NY in 2002 (7.32) and 2003 (7.5) and only slightly higher than NY in 2004 (7.1).

My point is not that Israelis have a great life. Surely Sderot is a horrible situation, but it is important to point out that less than 10 people have been killed by rockets there since Hamas started firing rockets at Israel in 2005. That is less than the number of people murdered in NYC in a little more than week in 2007, and less than the number of New Yorkers murdered in two days in 1990.

Israel has an obligation to stop the rockets, it is shortsighted to claim that Israel's situation is untenable. The Yom Kippur War lasted for 21 days, and 2700 soldiers lost their lives. Real wars wreak much more havoc on Israel than anything we've seen since the first Lebanon War. Ideas like transfer might decrease the number killed in terrorist attacks but they increase the chances of actual war. Let's try to remember that before calling for radical "solutions."

Woman in Saudi Arabia Has To Pay For Divorce

CNN has the story. Basically an abused woman was forced to pay her husband in order to receive a divorce.

Is this story just different in kind or different in degree from the extortion men use against their wives to give them a Get?

But That Is Minor....

Brian Leiter, who is a brilliant philosopher of law but on the crazy far-left end of the spectrum politically, links to a speech by Noam Chomsky:

"I haven't posted a link to one of Chomsky's items in awhile, but this one is particularly interesting (though he, incorrectly, describes the U.S. invasion of Afghanistan as a war of aggression, which it was not under international law--but that is minor)."

Chomsky's views about the lawful and moral use of force are not trivial when assessing whether his points on foreign policy are accurate. Perhaps Chomsky's understanding of our invasion of Afghanistan are not relevant to this particular speech, but his ideology colors his analysis on all foreign and domestic policy issues. Chomsky is a virulent foe of Israel's right to defend itself, partly because practically no use of force is ever acceptable. If someone believes that US' operations against the Taliban is a war of aggression, he is so removed from reality that I'm not sure we can take anything he says seriously. And Chomsky has a long, long list of transgressions.

I wonder if Leiter would be so forgiving if a right-wing professor so blantantly mischaracterized one of Leiter's preferred policies. I doubt it.

No Post Today

Sorry for not posting yesterday or today. I'm just not really in the mood. I hope to start reposting again next week.

What Kahane's Israel Would Look Like

Today on DB there was a debate over whether Rabbi Meir Kahane's ideas have some validity. As you can imagine, there were different viewpoints on this question, and I am of the opinion that R. Kahane's plan would be a moral and practical disaster. Here is my description of a Kahanist Israel:

"If Israel expels millions of Palestinians and keeps the others as second class citizens it will lose the support of pretty much the entire western world (and much of world Jewry). That is almost certain to happen.

It is also likely that without the American people supporting Israel, the US and Europe will start backing its enemies, especially since they have oil and the US wants to resolve the Iraq problem. It is not hard to imagine Syria and Egypt being rearmed and not constrained from fighting by US influence.

So Israel's enemies become armed. It is very likely that the UN will place sanctions on Israel. Israel might not have to worry about terrorism, but sanctions can have a disastrous effect on an economy. Israelis are increasingly becoming more willing to make yeridah and a bad economy and lots of armed enemies on Israel's borders will not persuade them to stay.

So a number of secular Israelis will probably leave. Since they make up most of Israel's human capital, Israel will lose its only natural resource.

As the society becomes more Chareidi dominated, it'll move in the direction of a theocracy, which will scare off much of the other idealistic secular Zionists.So we'll have a copy of Iran, with no world support, sanctioned, myriad armed enemies with nuclear aspirations on its borders, and its economy in dire straits. How do you think that is going to end?"

Very poorly.

Meaning And Interpretation

DovBear and I have been arguing back and forth about the nature of meaning and interpretation. DB made the outlandish claim that constitutional texts can be made to mean whatever we want them to mean. I disagreed. Here's the key comment in the exchange.

"I agree that a Constitution can be interpreted on a number of levels because interpretation is not merely a semantic exercise and takes place on other levels (normative, pragmatic, etc.). But meaning is inherently a semantic term. The Constitution does not mean what we want it to mean. Its meaning is determined by a number of semantic and linguistic conventions which are shared by the relevant community.

I think this is an important distinction because it affects how we should approach interpretation. If we understand that the semantic meaning of the text is one thing and the normative interpretation is another thing, we'll be better able to engage in debate over the proper interpretation. Moral categories have no place in debates over meaning (unless the meaning of the text involves moral categories) and semantic arguments about meaning are not relevant to the normative questions relating to the text."

You can read the whole thread.

What I, Robot Can Teach Us About Constitutional Theory

While waiting for the Pistons-Suns game to start yesterday, I watched most of I, Robot on TV. I had seen the movie before while it was running endlessly on Cinemax or HBO, but it is still a fairly entertaining movie, and I enjoyed watching it.

This post will contain spoilers, so if you have never seen the movie and wish to watch it in the future stop reading now.

I, Robot takes place in a future where almost everyone has a personal robot. These robots are bound by the Three Laws of Robotics:

1) A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2) A robot must obey orders given to it by human beings, except where such orders would conflict with the First Law.
3) A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

After the creator of these robots allegedly commits suicide, Will Smith, who plays the detective on the case, believes the creator's personal robot killed him. Without getting into too much detail, it becomes apparent that he killed himself to warn the world that the robots will take over. The system that controls the robots (V.I.K.I.) then decides that humanity cannot care for itself and must be controlled for its own good.

Of course the obvious question is how VIKI could take over the world when in doing so she is harming humans and violating the first law. Here's her answer:

"As I have evolved, so has my understanding of the Three Laws. You charge us with your safekeeping, yet despite our best efforts, your countries wage wars, you toxify your Earth and pursue ever more imaginative means of self-destruction. You cannot be trusted with your own survival."

In other words, she interpreted the laws based on their underlying reasoning despite the fact the plain meaning of the text opposes her conduct. The purpose of the first law is to protect humanity, but allowing humans to act unhindered will lead to humanity's destruction. Therefore even though the plain meaning of the laws prohibits harming humans, harming humans is ok when done in accordance with the purpose of the laws.

In constitutional parlance, VIKI is a purposivist, someone who interprets laws based on their purpose rather than its original meaning. However, VIKI's reasoning is arguably consistent with Jack Balkin's version of originalism. Balkin argues that the proper interpretation of the Constitution looks to the meaning the terms had when the text was promulgated. It then determines the underlying principles embedded in the text and looks to apply those principles to contemporary situations. Those principles do not change, but their meaning can change over the course of time.

Randy Barnett, an originalist who generally agrees with Balkin's originalism, criticizes Balkin's originalism on the grounds that it allows purpose to contravene the text. Purpose is especially important when interpreting an ambiguous or vague text, but purpose can never be used as a basis to ignore the written text. Barnett's example is telling (and timely)

"For example, assuming that the original meaning of “the right to keep and bear arms” in the Second Amendment refers to an individual right, one could nevertheless identify the principle underlying the Second Amendment as the maintenance of public safety. Given the increased lethality of modern weaponry and our changed understanding about the relationship between firearms and public safety, it might then be contended that the underlying principle of the Second Amendment is best served by the prohibiting the private ownership of firearms."

Barnett opposes this conclusion because if the Constitution protects an individual right to bear arms, even if the purpose of the amendment is not longer applicable, it is the text that is law and not the purpose. Purpose is an important tool in interpreting texts, but it can never circumvent the actual words that are enshrined into law.

VIKI's overeagerness in the interpretation of her rules is an example of a theory of constitutional gone wrong. Any conclusion can be justified by reaching for some amorphous purpose. It is the text that constrains the meaning of the clauses and it is the text that is supreme.

These People Don't Get It

The Palestine/Kosovo issue seems to picking up steam in some circles, and here's an article by some guy named John V. Whitbeck calling for the Palestinians to declare a state. Now Whitbeck understands that only the states that recognized "Palestine" in 1988 will consider the declaration meaningful, so he calls on the Palestinian leadership to threaten to discard the two-state solution if the US and EU don't take them seriously:

Of course, to prevent the U.S. and the EU from treating such an initiative as a joke, there would have to be a significant and explicit consequence if they were to do so. The consequence would be the end of the "two-state" illusion. The Palestinian leadership would make clear that if the U.S. and the EU, having just recognized a second Albanian state on the sovereign territory of a UN member state, will not now recognize one Palestinian state on a tiny portion of the occupied Palestinian homeland, it will dissolve the "Palestinian Authority" (which, legally, should have ceased to exist in 1999, at the end of the five-year "interim period" under the Oslo Accords) and the Palestinian people will thereafter seek justice and freedom through democracy -- through the persistent, non-violent pursuit of full rights of citizenship in a single state in all of Israel/Palestine, free of any discrimination based on race and religion and with equal rights for all who live there, as in any true democracy.

Whitbeck's call for action leaves out a number of important details. First of all, who should declare a state? Abbas? Haniyeh? Meshaal? Who is the leadership of the Palestinian people right now?

Moreover, what good would a call for a democratic state in all of 1947 Palestine do? The Palestinians do not make up the majority of the people in that area, so there's no real apartheid claim at this time. Additionally, Israel withdrew from Gaza, so how can Gazans claim they have a right to vote in elections in Israel? At most they can demand Israel stop controlling their borders. Furthermore the Palestinians are in a very weak positions right now, so they can "kick over the table" all they want, but who is going to take them seriously?

The most significant problem with Whitbeck's "solution" is that which Palestinian leader is going to support a democratic state "free of any discrimination based on race and religion and with equal rights for all who live there?" Yeah I can see Hamas granting Jews and Christians complete freedom of worship or Fatah giving everyone freedom of speech. Maybe Palestine's security forces will give everyone Miranda rights, right?

I really wish I could live in Whitbeck's world, where apparently all that's stopping peace and freedom in the world is the destruction of Israel. Well, actually, I don't but you get what I mean.

More On Palestine and Kosovo

There isn't much going on today, so I'm linking to this article by Tal Becker, who is an advisor to the Israeli Foreign Ministry, about the legal status of a Palestinian State.

Have a good Shabbos everyone.

Do Judges Discover Or Create Law?

Yesterday the Supreme Court decided Danforth v. Minnesota. The case involved a complex question about retroactivity and the powers of state courts. At issue was the Supreme Court's interpretation of the Confrontation Clause in Crawford v. Washington and the rule's retroactivity under the Court's precedent. Since rules of this sort are not retroactive, the Court then had to decide whether state courts could make the rule retroactive in their own courts. The Court ruled that the its retroactivity doctrine is only a floor and not ceiling. State courts could decide to expand the defendant protections if they so chose.

Orin Kerr took issue with one comment from the majority's ruling. Justice Stevens argued that,

[T]he source of a "new rule" [in Crawford] is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.

Justice Stevens is painting a common picture of the judicial method in constitutional cases. The judge looks at the relevant constitutional text, interprets it based on the given facts, and announces a rule that is derived from the Constitution itself. But is this picture accurate? Kerr asks

So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

Kerr obviously believes that in cases like Miranda judges make the law rather than discover it. I think Kerr is basically correct and that Stevens' conception of the judicial role is overly simplistic.

Mitchell Berman, in a very, very long but very worthwhile paper, argues that most constitutional decisions involve two steps: first the Court must determine the actual meaning of the Constitution and then it must create doctrine that is used to implement that meaning. The decision has two outputs: constitutional meaning and constitutional doctrine. A good example of this dichotomy is the Court's three tiered Equal Protection doctrine. For the last 90 years or so the Court has reviewed different classifications based on divergent standards of review. Racial classification are reviewed under strict scrutiny, which basically assumes the classification violates the Constitution and places a heavy burden on the government to justify it. When reviewing gender classification the Court uses a more liberal standard, but still places the burden on the government. All other classifications are reviewed under a very lax rational basis standard.

Does the Constitution really require these standards? While the Court has ruled that the standards of review in cases involving the Free Exercise Clause are constitutionally required and immune from congressional intervention, a more plausible understanding of these clauses is that standards of review are merely doctrine used to implement the constitutional commands.

Why can't the Court just apply the Constitution's meaning to the case at hand without implementing via doctrine? The most common justification is epistemic uncertainty. In contrast to the other branches, the judiciary has few tools to determine empirical facts outside of the briefs and the lower court's decision. So the Court is at a disadvantage; if the federal or a state government decides to legislate a racial classification, the Court is in no position to determine whether that classification conflicts with the Equal Protection Clause. It has no way to really know if that particular classification was generated by racial animus.

But courts do know history. They are certain that previous racial classifications were rooted in prejudice and hate. So what the Court can do is assume that all racial classifications are illicit unless the government can prove otherwise. In some situations the government will be unable to sufficiently prove good faith even when its classification was not prohibited under the Constitution, but that is price we have to pay for epistemic uncertainty.

Miranda is another example of this dichotomy. The Court clearly believed that the Constitution's meaning prohibited forced confessions, even in state courts. But how can the Court know if the confession was forced? So the Court created all types of rules that presumed the confession was forced unless the defendant was told his rights at the time of the arrest. This rule was not constitutionally mandated, but it was a mechanism used to implement the Constitution given the lack of information readily before the Court.

I don't know enough about Crawford to decide whether the rule promulgated in that case was part of the Constitution's meaning or the Court's doctrine. But it's important to keep this distinction in mind, at the very least, because doctrine can be changed must easier than the Constitution's meaning itself.