The Legality of Evil: The Torture Memos and the Living Constitution

[babylonsister]

http://balkin.blogspot.com/2008/04/legality-of-evil-torture-memos-and.html

The Legality of Evil: The Torture Memos and the Living Constitution



Orin Kerr notes that John Yoo's torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a Presidential election using the flimsiest of legal reasoning. But I digress.).

Orin wants to know whether John's theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John's theories of Presidential dictatorship are consistent with the Constitution's text and underlying principles, they are not. If he wants to know whether the procedures in our constitutional system could produce a decision adopting John's theories-- and whether if it did, that decision would ultimately be corrected-- that is a longer story, for as noted above, courts have made many bad and unwise decisions in our nation's history. Nobody should underestimate what lawyers in high places can do armed with legal language. But the question is whether the constitutional system as a whole can correct the excesses of such lawyers.

It is possible, but very unlikely, that five Justices of the Supreme Court would adopt reasoning like John Yoo's in one of its decisions. Unlikely, because it would require overturning a lot of precedent and disregarding basic principles of the Constitutional system. Possible, because you never know what those crazy kids are likely to do when they are unsupervised. However, it would not be the most legally dubious opinion the Supreme Court ever wrote, or, for that matter, its most morally bankrupt opinion, even if you exclude Dred Scott. If you think it would be, you don't know much about the history of American constitutional law. And yet, despite that, the republic has survived. Well, as Madison warned us, enlightened people will not always be at the helm.

But the fact that courts make bad decisions, and even evil decisions, does not mean that the constitutional system as a whole thereby becomes illegitimate. It just means that a particular decision is very wrong. The more important question is whether our constitutional system offers opportunities to correct bad decisionmaking by courts, through sustained criticism and protest, through changing people's minds about what our Constitution requires, through political responses and political workarounds, and through the judicial appointments process. These features of political practice are part of the checks and balances of our constitutional system, which we recognize easily when the President and Congress are in conflict, but perhaps less easily when the courts are involved (because we think incorrectly that they have the last word on the meaning of the Constitution). Finally, these same features of our political system offer means by which we can prevent such bad decisions from occurring in the first place. Today nobody can be appointed to the Supreme Court who thinks that Jim Crow policies are constitutional. But that was not true through most of our country's history. It only became true because of years of political and legal struggle.

If the Supreme Court adopted John Yoo's theory of Presidential dictatorship, it might send us spiraling down toward the end of our two centuries' old constitutional experiment with democracy, a possibility that the framers imagined but tried to forestall through the creation of doctrines like the separation of powers and checks and balances. Or it might not. The next Administration might come along, take very different positions, and appoint new Justices who distinguished the bad decision away. But, in any case, it would not simply be a question of us waiting passively for the Court to decide our fates. There are things we might and should do to promote the restoration of proper constitutional government. The fact that the Constitution is in all of our hands, and not simply the hands of the Justices, is the reason why we have a living Constitution.