The University of Chicago Law School Faculty Blog

Three Views of National Security and the Constitution

Just as Gaul was divided into three parts, so too judges and constitutional lawyers interested in national security tend to fall into one of three broad camps:

(1) Executive unilateralists, who believe that courts and legislatures do and should defer heavily to the executive during wars and emergencies. Our book, Terror in the Balance, stakes out this view, which has only a few other defenders in the legal academy.

(2) Democratic process theorists, who are most worried about the separation of legislative and executive powers, and who want above all that executive action during emergencies should be authorized by Congress. (A variant of this view is Bruce Ackerman’s proposal for a “framework statute,” to be enacted before the next attack, that would structure executive emergency powers). For democratic theorists, the central text is Justice Robert Jackson’s concurrence in the Steel Seizure case, which suggests that the president’s powers are at their high-water mark when he acts with congressional approval, and at low ebb when he acts against congressional instructions.

(3) Civil libertarians, who typically want courts to examine emergency action to ensure that it does not violate constitutional rights.

Harcourt: "The Mentally Ill, Behind Bars"

The Mentally Ill, Behind Bars
By Bernard E. Harcourt
The New York Times
January 15, 2007

To see full study, see the PDF version.

LAST August, a prison inmate in Jackson, Mich. -- someone the authorities described as ''floridly psychotic'' -- died in his segregation cell, naked, shackled to a concrete slab, lying in his own urine, scheduled for a mental health transfer that never happened. Last month in Florida, the head of the state's social services department resigned abruptly after having been fined $80,000 and is facing criminal contempt charges for failing to transfer severely mentally ill jail inmates to state hospitals.

Ten days ago, the Supreme Court agreed to determine when mentally ill death row inmates should be considered so deranged that their execution would be constitutionally impermissible. The case involves a 48-year-old Navy veteran who is a diagnosed schizophrenic. In the decade leading up to the crime he was hospitalized 14 times for severe mental illness.

The Democratic Party and the War on Terror

Now that the Democratic Party has taken control of Congress, will it cut back on President Bush’s aggressive war on terror strategy, and restore Americans’ civil liberties? The answer appears to be “No.”

The Democratic Party’s 6-Point Plan for 2006 lists the following items: Honest Leadership & Open Government; Real Security; Energy Independence; Economic Prosperity & Educational Excellence; A Healthcare System that Works for Everyone; and Retirement Security. Under Real Security, one finds:

Democrats are unwavering in our commitment to keep our nation safe. For Democrats, homeland security begins with hometown security. That’s why we led the fight to create the Department of Homeland Security and continue to fight to ensure that our ports, nuclear and chemical plants, and other sensitive facilities are secured against attack and support increased funding for our first responders and programs like the COPS program so we keep our communities safe. We want to close the remaining gaps in our security by enacting the 9/11 Commission recommendations.

"Mistakes Have Been Made"

"Where mistakes have been made, the responsibility rests with me." Note the passive voice. The President does not admit, "I made mistakes." Rather, others made mistakes, but he (graciously) takes responsibility. This is a far cry from Harry Truman's "The Buck Stops Here." If President Bush wants to win back the trust of the American people, he has to begin by being honest with them.

"I have made grievous mistakes, and those mistakes have resulted in a national disaster. I persuaded the Congress and the American people that the United States needed to invade Iraq in order to remove weapons of mass destruction. I was wrong. There were no weapons of mass destruction. I assured the Congress and the American people that the war in Iraq would be easy. I was wrong. More Americans have been killed in Iraq than were killed on 9/11, the war has already cost the nation hundreds of billions of dollars, and the there is no end in sight. I assured the American people that we had sufficient troop strength in Iraq to quell the insurgency and that the Iraqi government would take responsibility for the safety of the Iraqi people. I was wrong, again, on both counts."

Stone: "Government Secrecy v. Freedom of the Press"

Yesterday, Geoffrey Stone delivered a Chicago's Best Ideas talk with the title of "Government Secrecy v. Freedom of the Press." A packed house heard Geof discuss the law involved in when national security considerations trump (or should trump) the press's right to publish information, and even when they trump the right of individual citizens to bring such information to light. Listen to the talk to hear him explain why what looks like a balancing test isn't always a balancing test and why this talk is about so much more than the Pentagon Papers.

Listen to the talk here. Professor Stone's full blurb from the posters is after the jump, and podcast instructions for the uninitiated are here.

Executing the Insane

The United States Supreme Court has agreed to review a case, Panetti v. Quarterman, which presents a question about the constitutionally required standard for deciding when a convicted murderer is competent to be executed.  More than 20 years ago, in Ford v. Wainwright, the Justices -- though splintered -- ruled that the Eighth Amendment, which prohibits "cruel and unusual" punishment, does not permit the government to execute a prisoner who is, at the time of his execution, insane.  But what, exactly, does this requirement mean?

Panetti understands, apparently, that the state of Texas wants and plans to kill him.  He believes, though, that this is not really because of his conviction for fatally shooting his in-laws in the presence of his estranged wife and their 3-year-old child, but is instead really part of a conspiracy among the state and others to prevent him from preaching the Gospel.  So, is his awareness of what's coming enough to satisfy Ford?  Should it satisfy us? 

Bernie and the Passing of a Generation

This is intended particularly for students in the Law School, though everyone is of course invited to read it.

Few of you knew Bernie Meltzer, although you passed his portrait every day on your way to class and you often passed him in the hall. You would have seen him as a little man, slighltly stooped, with large glasses. If you rode with him in the elevator, he undoubtedly asked you a question. Bernie was like that.

Bernie Meltzer was one of the giants of the University of Chicago Law School. Along with his close comrades Edward Levi, Harry Kalven, and Walter Blum, he was one of four towering figures who redefined  and reconstituted the University of Chicago Law School after World War II.

Taking Religion Seriously

The cover story of the Jan. 1-15, 2007 issue of The New Republic is Damon Linker's article about Mass. Gov. Mitt Romney’s religion (“The Big Test: Taking Religion Seriously”) and why voters might want to worry about it.  In Linker's view, "Romney intends to run for president as the candidate of the religious right, which believes in blurring the distinction between politics and religion. Romney thus needs to convince voters that they have nothing to fear from his Mormonism while simultaneously placing that faith at the core of his identity and his quest for the White House."  "This is a task," however, "that may very well prove impossible. . . .  It is likely . . . that as citizens educate themselves about the political implications of Mormon theology, concerns about the possibility of a Mormon president will . . . increase. And these apprehensions will be extremely difficult to dispel--because they will be thoroughly justified."

 

Do arguments and concerns like Linker's hit -- as David Gergen charged -- "below the belt"?

Title IX and Women Practicing with Men

Last week's NY Times had an article centered around a practice known to most observers of women's sports, that some women's teams practice against or with men, often ex-high school athletes who could not quite make the college men's team. But apparently some college conferences, and eventually the NCAA, may bar women's teams from this practice of using men either because it is regarded as somehow demeaning for women or, more concretely perhaps, because of the likelihood that college women's teams would then need fewer women. Indeed, some schools are not using the full complement of scholarships, and some have teams with rosters smaller than those allowed by the governing rules of the sport. But is there really a Title IX or other problem?

Compact Fluorescents and the Peltzman Effect: Saving Energy vs. More Light?

Sam Peltzman is a legendary University of Chicago economist. I first encountered his research during high-school debate, where his work was being quoted for one counter-intuitive proposition after another. Most famous, perhaps, is his suggestion that mandatory seat belt laws wouldn’t reduce deaths—at least certainly not as much as forecast—because drivers would compensate for their “forced” safety consumption by driving faster. This is known as the Peltzman Effect. (As to the empirical validity of the claim itself, see this recent post by Steve Levitt on his Freakonomics blog.)

We look like we are getting to run another test of the Peltzman Effect as Wal-Mart and environmentalists (together!) (NYT, 1/2/07 $) push us towards compact fluorescent light bulbs (CFLs). Will CFLs save energy as consumers swap 60-watt incandescents—Thomas Edison’s light bulb—for 15 watt CFLs? Or will consumers seize the day(light) by swapping 60-watt CFLs for 60-watt incandescents? If so, that will offset projected energy savings (and the corresponding carbon dioxide reductions).