Or: Eeew – it’s not Hamilton all over that blue dress… It’s MADISON!
So anyhow, here are the sort of random highlights of Day 1 at the Federalist Society Annual Conference
Ted Olson opened the conference with a really good speech about fidelity to the law, and the ascendancy of judicial activism, among other things. One of the things I found profoundly moving is that he is pretty clearly disturbed by the way confirmations are going in the Senate. His opinion seems to be that we need to just start voting on all nominations – whether it’s a Republican president or vice versa, Democrat Senate or vice versa. As he put it (to the best of my memory), “we’re in a cycle of retaliation now, where both sides justify their actions as retaliation for what the other side did previously, with no end in sight.”
For a Solicitor General, that’s pretty direct speech, and it tells you the depths to which the confirmation process has sunk lately – that even a hard-bitten warrior like Mr. Olson is sick of it.
This really highlights the difference between the recently formed American Constitution Society, which dishes out left-liberal-legal red meat (we gotta capture that judiciary and implement our social programs) and the Fed-Soc (we gotta get back to the democratic representative process and throw things back into the hands of the people). As always, your mileage may vary.
Then there was a really good panel on the U.S. courts’ adoption of international law as a normative precedent for U.S. law. A couple problems were identified by the folks who don’t really like international law. They included:
1. There’s no place in the Constitution recognizing it as sovereign over U.S. law. The Constitution recognizes ratified treaties as the law of the land, and acts of Congress, and arguably actions of the U.S. judiciary interpreting those sources – but there are no other sources of law.
2. The sources of international common law cited by the courts are supposed to be accepted only if they are a statement of something like a consensus of nations, and common practice of nations. The body of law meeting this test is small, mostly admiralty and anti-piracy law. Yet the courts adopt law review articles as international common law, isolated court hearings, and in one case, a report by a subcommittee of the Labor Party in British Parliament.
3. Especially galling is the adoption treaties signed, but not ratified; or signed on-a-limited-basis treaties. In such cases, it’s clear that the President and Congress didn’t intend for the treaties to go into effect, yet the courts apply them as if they were signed and ratified.
The pro-international law incorporation side was well represented. Professor Kumm from NYU Law made a pretty good case for using international law to inform the interpretation of the U.S. Constitution in the absence of other interpretive sources. That’s not a terrible idea, and it may be the only normative function I’m prepared to recognize for domestically applied international law. Lori Damroscher from Cardozo Law (? I think) tried to argue that because the “law of nations” existed at the time of the ratification of the Constitution, that the framers anticipated it would evolve and bind us, and that the framers committed us to that. This is sort of intellectually dishonest, because the law of nations at that time was limited, as I said, to admiralty and anti-piracy law, and some very limited humanitarian principles, which may have originated in Church teachings. It’s like saying the Framers hoped for gay marriage laws, because both homosexuality and marriage existed at the time the Constitution was ratified. It’s either shoddy historical method and reasoning, or intellectually dishonest. I’ll assume shoddyness…
The early afternoon panel was a discussion of the Religious Liberties Protection Act (RLPA). It is a federal law encoding a bunch of Supreme Court jurisprudence relating to how states can treat religious organizations. The Right Rev. Barry Lynn of People United for Separation of Church and State was present, along with Findlaw’s Prof. Marci Hamilton. Quick word on Hamilton here – she’s a cutie. Very nice eyes. Totally disagreeable legal method, but nice eyes. On the other side, a chap from the Becket foundation, a couple law professors, and Alex Acosta, the Deputy Attorney General for Civil Rights.
In short, RLPA says you have to treat religious organizations more or less the same as you treat every other similarly situation (free association-type) organization. It’s the logical corollary of the Supreme Court’s recent First Amendment Establishment Clause jurisprudence, which says that state action harming religious organizations is permissible if the law in question is neutral (i.e. not biased for or against religion) and generally applicable (i.e. not targeted at religious groups, but generally applicable to all groups). For some reason, the argument focused on zoning – maybe because a lot of the cases involving RLPA have involved zoning, often against a store front church. In such cases, a local zoning board decides to get rid of a small church set up in a store front in a strip mall. The church sues… and usually wins, unless the town has also taken steps to evict other storefront “freedom of conscience” type associations, like the Masons, the Rotary Club, Kiwanis, Oddfellows or whatever.
The notoriously anti-religion Barry Lynn, whose all purpose argument is that true believers ought to welcome being driven from the public square, because people who are persecuted will really enjoy the fruits of their religion, had the (possibly unintentional) big laugh line of the day. Lynn: “I like speaking to the Federalists, because one rarely gets the chance to address every future republican judicial appointee.” [big applause, cheers] Lynn [slightly perturbed]: “I meant that as a joke.” [huge laugh].
There wasn’t really anything new to the arguments here, except for Marci Hamilton’s argument. Like Professor Damroscher earlier, she attempted to speak federalism. She argued that federalists, of all people, should leave local communities free to discriminate against who they want to discriminate against. After all, it’s just a matter of zoning that allows towns to drive storefront churches out. This struck me as an interesting line of reasoning for the famously liberal Prof. Hamilton. If she really believes that, I’d like to ask her what she thinks about towns that took steps to use zoning to keep Blacks from moving in. After all, anti-black zoning laws are just zoning, right?
Bringing the issue into contrast was Deputy AG Acosta, who mentioned a case DOJ recently got involved in Pennsylvania. A predominantly White Baptist church sold a storefront church property to a predominantly Black Baptist church, which found itself promptly zoned out of existence. Ooops, er…
In conclusion… well, you’ve heard all the arguments before. Either you believe in treating religious organizations equally, or you believe that treating them equally is conferring a benefit on them, and impermissible.
Of some interest, was the announcement that the 10 Commandments Judge, Justice Roy Moore of Alabama, was removed from the Alabama Supreme Court by unanimous opinion of his peers. There was scattered applause around the room. I assure you, it was not hostility to the 10 Commandments, not in that room. No, it was hostility to a judge who thwarted the rule of law. That’s a nice commentary on the Fed-Soc, I think.
The final panel was focused on international “legitimacy”, unilateralism and multi-lateralism. It was maybe the best panel of the day. Skipping the technical stuff:
The EU Ambassador to the United States said we oughtta not be unilateral, because abiding by the vote of the UN General Assembly and Security Counsel is democratic – and unilateral action allows a minority (the United States and 30 other nations) to thwart the majority of nations (e.g. France, Germany, and Russia… oh, and the middle East nations). We oughtta abide by the wishes of the international majority because majority rule democracy is what the U.S. is all about. Right?
Um, well, yeah. Except we aren’t about majority rule. We in the U.S. have a carefully balanced republican form of representative democracy. One of the primary goals of separation of powers and representative democracy is countermajoritarianism.
Whoa cowboy… countermajoritarianism? Yeah, big words. In English, it means that we’ve set up the system, so that a majority vote, or majority neglect, can’t be used to oppress a minority. In other words, while democracy is a tyranny of the majority, we’ve also accepted an occasionally tyrannical minority in the U.S. system – the idea being preserving the rights of action of minorities preserves the rights of all people.
You’d think the EU would send somebody to be an ambassador, who understands our system a wee bit better than “majority rules, righto, chaps?”
Ruth Wedgwood, a professor from Johns Hopkins and some kind of rep to the UN, had the most common-sensical approach to uni-, multi- and poly- lateralism. Paraphrasing her, sometimes it serves our interests to be multi-lateral. Sometimes it doesn’t. But we need to de-romanticize the UN, and remember it’s a bunch of nations acting in their own best interests. There’s nothing special about French sanction (delivered in France’s own best interest), that purifies our motives; there is nothing special about French condemnation (self-serving, of course) that per se impugns our motives. And sometimes, we just need to tell folks at the UN to get bent, because the hypocrisy and stupidity gets armpit-deep.
I like professor Wedgwood, I think.
Washington Post columnist Charles Krauthammer delivered the drum-beater of the day, however. Again paraphrasing, he argued about how it is stupid to ever hitch ourselves to people who don’t have our best interests at heart. Of the 180 or so nations in the UN, very few of them share our values, very few of them can be bothered to help us ever, very few are willing to act even when it’s in their own best interest because a thin line of Americans and Brits will protect them anyhow, and they can cheaply ascend to the “moral” high ground by condemning U.S. militarism. By way of example, he cited a recent UN resolution condemning Israel for building its wall between Israelis, and the Palestinians. At no point has the UN condemned Palestinian terrorism, yet harsh criticism of Israel is pretty much constant. The recent condemnation was, I believe he said, 190 – 3 – with the 3 being Israel, the United States, and “our ever loyal ally, Micronesia.” Big laugh there. In summation, he argued that we ought to be proud of doing the right thing, especially when we know it will be unpopular. He was careful to point out at the start that he wasn’t against multilateralism at all times and places, but that he would make the strongest argument against it that he could.
So that was my day. Pretty interesting stuff… for a lawyer. If you’ve read so far, and you aren’t bored to tears… well, where did you take the bar? Or, alternately, how long have you had this insomnia?
More to come tomorrow.