Germans Love David Hasselhoff . . . and They Kindly Tolerate Pejman Yousefzadeh

President Obama gave a speech to the National Defense University today that outlined his counterterrorism policy in general, and his administration's policy on drones in particular. Deutsche Welle interviewed yours truly on the new policy:

Pejman Yousefzadeh, a Chicago-based lawyer who specializes in public policy, cautiously welcomed Obama's initiative towards greater transparency, but questioned the efficacy of a new policy. "I don't know if a blanket guideline is going to be as useful as bilateral diplomacy with the countries in question," he told DW. "Some countries may privately welcome US intervention against terrorists, but have to condemn the US in public."

Yousefzadeh is also concerned about accountability. "You can't have a US president's war policy that is completely free of congressional oversight," he said.

To that end, Yousefzadeh thinks Obama would do better to establish a "Federal Intelligence Commission," an independent regulatory agency that would review any targets the White House has identified. Though as commander in chief, the president would still be able to overrule such a commission's findings, he would have to tell Congress he is doing so, making the program much more transparent and subject to a legal process.

My thoughts on the establishment and uses of a Federal Intelligence Commission are spelled out in my article on drone policy for the Atlantic Council, which was originally linked to here.

Dzhokhar Tsarnaev is Captured. What Next?

Like everyone else, I was relieved to hear that Dzhokhar Tsarnaev was caught. Kudos to the law enforcement officials who worked this case so hard, and who brought about a successful outcome of the manhunt that consumed Boston for most of yesterday. But there are still many questions to answer, and many challenges ahead.

For one thing, I would like to think that despite the anger and outrage evoked by the Boston Marathon bombings, Tsarnaev will still receive due process as the case proceeds against him. At the outset, there is a due process controversy that needs to be dealt with; whether Tsarnaev will receive Miranda warnings.

Everyone who has ever watched a cop show knows what the Miranda warnings are. The defendant has the right to remain silent; if s/he gives up the right to remain silent, anything s/he says can be used against him/her in a court of law; s/he have the right to an attorney; if s/he do not have any attorney, one will be provided for him/her by the court. However, there is also a public safety exception to Miranda. It would appear that in light of the exception, Tsarnaev is not going to be read his Miranda rights. I can buy the fact that there may be a legitimate public safety exception at issue in this case, but as my FBI link makes clear, the exception is a limited one:

The Quarles Court made clear that only those questions necessary for the police “to secure their own safety or the safety of the public” were permitted under the public safety exception.


Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct. Thus, statements obtained by the government under the public safety exception cannot be coerced or obtained through tactics that violate fundamental notions of due process. Here, it is worth mentioning that prior to the Miranda decision, the only test used to determine the admissibility of statements in federal court was whether the statement was voluntarily made within the requirements of the due process clause. This test requires that a court review the “totality of the circumstances” to determine whether the subject’s will was overborne by police conduct. If a court finds that the questioning of a subject, even in the presence of a situation involving public safety, violated due process standards, the statement will be suppressed.

(Footnotes omitted.) The government mustn’t overstep the bounds of the public safety exception. It needs to ensure that it doesn’t destroy its case against Tsarnaev, and it also needs to ensure that it doesn’t erode civil liberties for the rest of the population.

A separate question exists as to whether Tsarnaev can or should be treated as an enemy combatant. On this issue, I am with Benjamin Wittes:

… Could the Justice Department legally question and detain the suspect outside the criminal justice system?

The short answer is no, says Benjamin Wittes, a national security expert for the Brookings Institution and co-founder of Lawfare Blog, a national security blog.

Federal courts have said the president has the authority to detain persons “who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States,” a power claimed by the Obama administration and codified by Congress.

So unless there’s evidence that Mr. Tsarnaev is linked to any terrorist group at war with America, “military detention is simply not lawfully available,” said Mr. Wittes. And there’s also the fact he’s a U.S. citizen pursued on American soil. That’s not necessarily a legal barrier, but a barrier under Obama administration policy, said Mr. Wittes.

There is a third issue that needs to be addressed as well—one that has nothing whatsoever to do with Dzhokhar Tsarnaev as a person, and everything to do with how we respond to terrorist threats. This involves the closure of Boston for most of yesterday as the search for Tsarnaev went on.

I understand the reasons for the closure; government and law enforcement officials wanted to keep the public safe while they searched for Tsarnaev. At the same time, I don’t see what was gained by the move. Fugitives are tracked all the time within cities without the cities being closed down, and this includes the tracking of serial killers and rapists. Those fugitives could do the very same things to render harm to the public that Tsarnaev might have done yesterday if there were no public closure request in place. If we don’t close cities when we are searching for extremely dangerous serial killers and/or rapists, it’s hard to understand why we would do so in order to search for a lone terrorist. Oh, I suppose that it might have been possible that even after his brother was killed, Tsarnaev might have had others helping him, but that was not the impression that we got from law enforcement officials yesterday. They seemed to indicate quite clearly that in the aftermath of his brother’s death, they believed that Tsarnaev was entirely on his own. And yet, the entire city of Boston was shut down and turned into a ghost town in order to find him—at a cost of upwards of $333 million. We regularly tell ourselves and each other that the best response to a terrorist attack is the resumption of normal life as quickly as possible in order to make it clear to the terrorists that they haven’t won. How is that philosophy to be adhered to with any credibility whatsoever if we turn off all activity within an entire metropolitan area simply because of one person—even a person who was responsible for the Boston Marathon bombings? Just imagine what al Qaeda abroad and terrorist cells in the United States must be thinking; they must salivate at the prospect of causing extreme amounts of disruption if a number of cell members act in concert to perpetrate terrorist attacks within the United States.

Finally, while I am pleased by the sense of unity and togetherness that the nation seems to have adopted, I am aware that all too soon, divisions will appear anew. We’ll disagree on issues and many of those disagreements will be passionate, loud, and very, very boisterous. But whatever our future disputes, let us all be united in the conclusion that there is a very real difference between Chechens on the one hand, and Czechs on the other.

Pathbreaking Scholarship by Cass Sunstein

While I have a host of policy disagreements with Cass Sunstein (who currently is a law professor at Harvard and formerly was chosen by President Obama to head up the Office of Information and Regulatory Affairs), the fact of the matter is that Sunstein is a superb scholar. I once even urged President Obama to nominate him for the Supreme Court, and in similar circumstances, I would have no hesitation in making the same recommendation.

With that as my prelude, I am going to urge people to read Sunstein's latest article, courtesy of Larry Solum. Yes, I know that this is legal geekery, but it is very good legal geekery. Be sure to read it--and be especially sure to take the time to read it today.

Convenient Conversions

Following her husband down the road to Damascus, Hillary Clinton announced that she is ready to support same sex marriage:

“Like so many others, my personal views have been shaped over time by people I have known and loved, by my experience representing our nation on the world stage, my devotion to law and human rights and the guiding principles of my faith,” Clinton says. “Marriage, after all, is a fundamental building block of our society. A great joy, and yes, a great responsibility.”

“A few years ago, Bill and I celebrated as our own daughter married the love of her life,” Clinton continued. “I wish every parent that same joy. To deny the opportunity to our own daughters and sons solely on the basis of who they are and who they love is to deny them the chance to live up to their own God-given potential.”

Hmm. So … people close to Hillary Clinton, people she has “known and loved,” helped change her views on same sex marriage. In addition, the experience of her own child aided in the transformation as well, according to the former secretary of state.

Gosh, this sounds so very much like Rob Portman’s rationale for changing his views on same sex marriage. And as we recall, Portman got attacked by port-siders for a supposedly late conversion, and for changing his views only because someone close to him (his son, who came out) caused him to reconsider his stance on the issue. Any chance that the same port-siders might attack Hillary Clinton for taking longer than Portman did (and for that matter, taking much longer than Dick Cheney, John Bolton, and a host of Republicans did) to announce in favor of same sex marriage, and for employing pretty much the same reasons that Portman employed in explaining her change of heart? Has the thoroughly un-serious Matthew Yglesias denounced Clinton’s announcement as “the politics of narcissism” yet? Does he plan to?

Somehow, I doubt it. As I wrote in my post on Portman’s reversal, the people who attacked Portman from the left “are less interested in the issues of the day and more interested in attacking Republicans for any reason whatsoever, no matter how small the reason is in context.” It follows that however hypocritical their silence may be—and we all know that it is tremendously hypocritical indeed—they won’t attack Hillary Clinton for employing very Portmanesque rationales for changing her stance on the issue of same sex marriage. Heck, Hillary Clinton will get a free pass from these port-siders even though—and let’s not pretend that the following is not a consideration—her conversion on this issue (and that of her husband’s) is likely prompted by her desire to run for president in 2016. After all, Democratic primary and caucus voters won’t look kindly on a Democratic presidential candidate who doesn’t support same sex marriage. By contrast, Portman showed genuine political courage in adopting a stance that likely wasn’t prompted by any desire to run for president, and that will have lots of social conservatives angry at him regardless of whether he seeks the Republican nomination for the presidency, or if he just decides to run for re-election to the Senate. Portman deserves far more praise from supporters of same sex marriage for his display of political courage. In a just world, he would get it.

On DOMA and Same Sex Marriage

So, a little over a week ago, Bill Clinton wrote an editorial for the Washington Post in which he came out in favor of same sex marriage. As one who has supported same sex marriage publicly since 2003, I welcome him to the cause, but I have to wonder at the following passage:

In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.” It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.

On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.

(Emphasis mine.) Let’s be clear about something: Although 1996 was “a very different time,” there have been no changes whatsoever in the Constitution to support the excuse that the existence of “a very different time” justified the signing of DOMA. The constitutional regime of 1996 is the same as the constitutional regime of the present day, which means that if Clinton thought back in 1996 that DOMA was constitutional, he should think the same thing today as well. To be sure, people change their minds on the great issues of the day, and it would be acceptable if Clinton wrote that after having re-examined the issue, he had come to the conclusion that what he did in 1996 was wrong. But Clinton doesn’t write that. Instead, he writes that because 1996 was “a very different time,” he and others have the luxury of thinking differently. Clinton argues that the change in time alone justifies the change in opinion.

So while Bill Clinton has come to the proper policy conclusion and now supports getting rid of DOMA, he has done so for the wrong reasons, without so much as an “I’m sorry for having signed DOMA into law in the first place” to be found in his editorial. The best Clinton does is to re-examine a statement he released along with the signing of DOMA in which he wrote that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Clinton now believes that “even worse than providing an excuse for discrimination, the law is itself discriminatory.” It’s nice that he has finally come to this conclusion, but again, the constitutional structure has not been altered in any way whatsoever since the signing of DOMA. The only thing that has happened is that time has passed, the public’s views on same sex marriage have changed dramatically, and Clinton doesn’t want to be perceived as being out of step with those views—especially given the possibility that his wife might run for president again in 2016. This isn’t exactly what one would call a profile in courage.

Contrast Clinton’s act of political expediency with the behavior of Senator Rob Portman, who is in my book one of the shining lights of the Republican party. After finding out that his son is gay, Portman examined his views, and came to the conclusion that he could no longer oppose same sex marriage in good conscience. His editorial on the subject is worth reading. An excerpt:

Two years ago, my son Will, then a college freshman, told my wife, Jane, and me that he is gay. He said he’d known for some time, and that his sexual orientation wasn’t something he chose; it was simply a part of who he is. Jane and I were proud of him for his honesty and courage. We were surprised to learn he is gay but knew he was still the same person he’d always been. The only difference was that now we had a more complete picture of the son we love.

At the time, my position on marriage for same-sex couples was rooted in my faith tradition that marriage is a sacred bond between a man and a woman. Knowing that my son is gay prompted me to consider the issue from another perspective: that of a dad who wants all three of his kids to lead happy, meaningful lives with the people they love, a blessing Jane and I have shared for 26 years.

I wrestled with how to reconcile my Christian faith with my desire for Will to have the same opportunities to pursue happiness and fulfillment as his brother and sister. Ultimately, it came down to the Bible’s overarching themes of love and compassion and my belief that we are all children of God.

Well-intentioned people can disagree on the question of marriage for gay couples, and maintaining religious freedom is as important as pursuing civil marriage rights. For example, I believe that no law should force religious institutions to perform weddings or recognize marriages they don’t approve of.

British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives. We also consider the family unit to be the fundamental building block of society. We should encourage people to make long-term commitments to each other and build families, so as to foster strong, stable communities and promote personal responsibility.

Portman has taken a genuine risk in staking out this new position on the issue of same sex marriage. Many liberals who support same sex marriage decided that it would be better to attack and ridicule Portman for a late conversion instead of welcoming a potentially powerful ally to their cause—proving that those liberals are less interested in the issues of the day and more interested in attacking Republicans for any reason whatsoever, no matter how small the reason is in context. The perpetually comical Matthew Yglesias calls Portman’s switch “the politics of narcissism,” because apparently, it’s wrong for Portman and other Republicans to base policy stances on personal experience. Yglesias further suggests that Portman should now re-examine his stance on a host of other issues, since apparently, a change of mind on one issue means a change of mind on all. (I wonder if the same rule applies for Bill Maher.) Meanwhile, a host of conservatives have decided that there needs to be a primary challenge against Senator Portman when he comes up for re-election—proving anew that a large segment of the conservative movement is more interested in preventing the existence of a coalition large enough to win elections than it is in actually building a coalition large enough to win elections. And people wonder why Mitt Romney lost last year. I guess this is the part of the blog post where I point out that if the Republican party can’t afford to make room for the likes of Rob Portman, it can’t afford to make room for the likes of me either. Oh, and the GOP should be aware that if it loses enough of us, it will die as a political force.

There are those who will continue to fight against same sex marriage out of principle. I guess that there is nothing I can do about that, but I agree with Nick Gillespie, who states that Portman’s switch is a signal that the fight over same sex marriage is all over but the shouting. I also agree that Portman’s switch was far more courageous—and potentially far more consequential—than the switches of Bill Clinton and Barack Obama:

Portman’s conversion on the issue comes after high-profile flips by Barack Obama and Bill Clinton, whose announcements carried at least a whiff of politicial [sic] opportunism to them (Obama’s came during a presidential campaign when he needed to shore up LGBT support among Democrats and Clinton’s came a decade-plus after he signed the anti-gay Defense of Marriage Act). Even with those caveats, they were still powerful indicators that the wheel has turned definitively in one direction. When a Christian conservative Republican signs on to the same basic policy shift, it’s a fait accompli.

I would be remiss if I didn’t reference this amicus brief submitted on behalf of a host of Republicans from varying spots on the political spectrum arguing that same sex marriage should be found constitutional. My biggest problem with the brief is that I didn’t have the chance to put my name on it.

More Shameless Self-Promotion

From SSRN:

Dear Pejman Yousefzadeh:

Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: Political Institutions eJournals.

As of 03/10/2013, your paper has been downloaded 147 times.

Very happy news. Again, keep downloading. Previous bit of shameless self-promotion found here.

Happy News from SSRN

Dear Pejman Yousefzadeh:
Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: LSN: Structure of Government & Political Theory (Topic), LSN: Structure of Government & Separation of Powers (Topic), Law & Politics eJournal, Law & Society: Public Law - Constitutional Law eJournal, PRN: Political Processes, Public Policies, Individual & Social Well-Being (Topic), PSN: Executive Authority (Topic) and Political Institutions: The President & Executives eJournal.

Keep downloading.

How the Hart-Dworkin Debate Applies to Egyptian Legal Reform

My latest article for the Atlantic Council. An excerpt:

The Hart-Dworkin debate was and is no mere academic exercise. Quite the contrary; it touches on very tangible issues in the world today. Consider the case of Egypt. In December of last year, Egypt approved a constitution that made shari’a law “the main source of legislation.” This language was also present in the 1971 constitution, but the 2012 constitution goes further by listing said principles ( “evidence, rules, jurisprudence and sources”) and by giving “unprecedented powers to Al-Azhar, Sunni Islam’s most respected religious school, by saying its scholars must be consulted on all matters relating to Sharia. The 1971 charter did not mention Al-Azhar.”

Click on the link for more.

As Larry Solum Might Say …

“Download [my article] while it’s hot!” From the abstract:

The memoirs of former Vice President Dick Cheney advance — among other things — his expansive view of executive power. This Book Review discusses Cheney’s those views. It depicts Cheney’s Nixon Administration experience, his time as a member of Congress, and his service as secretary of defense and vice president. In all of his years of public service, Cheney did not become a skeptic of executive power. On the contrary, even as a member of Congress, he sought to safeguard executive power against what he — and others around him — saw as encroachment by Congress. This Book Review also highlights two notable instances in which Cheney, as a member of the Executive Branch, sought to protect presidential power — and one instance in which he worked to preserve the autonomy of the Vice President from the President and his staff.

In Memoriam: Ronald Dworkin

The most consequential legal philosopher since H.L.A. Hart passed away on February 14th. Edward Luce discusses Dworkin’s legacy:

Most accounts of western liberal thought conclude with its seemingly inevitable drift into relativism – the denial that there is any such thing as a right answer. If the 18th and 19th centuries belonged to positive liberty – the idea that a free society could be grounded in morality – the 20th gave way to the negative, as argued by Isaiah Berlin: the only thing society can ultimately promise is freedom from oppression (and that society is largely silent on what people should do with their freedom.)

Ronald Dworkin swam powerfully against that tide. As one of America’s most celebrated liberal philosophers, Dworkin, who has died at 81 in a London hospital, dominated or heavily influenced every field of philosophy he touched. A life-long Anglophile who studied and taught on both sides of the Atlantic, he was a philosopher of constitutional law, morality, politics and how to live life.

Running through all Dworkin’s work, from the seminal Taking Rights Seriously that took on the legal positivists who dominated Anglo-American jurisprudence, to the more recent Justice for Hedgehogs, is the idea there is a right answer to everything. We may not always know what it is – or be able to reveal it to everyone’s satisfaction. But to deny its possibility is to flirt with nihilism.

Professor Larry Solum remembers Dworkin thusly:

… Dworkin’s output was prodigious and his intellect was ferocious.  He was famous for making seemingly effortless presentations, composed in perfect sentences and paragraphs, but apparently delivered on the fly—almost always without notes.  Dworkin was not one to give ground.  Critics were frequently frustrated by his deflection of arguments by restating his position in a way that objections did not apply and then insisting that this had been his position all along.  He was famous for the workshops he hosted, in which he would both present and critique the authors work: it was always quite a show.  Dworkin was for many years the Professor of Jurisprudence at the University of Oxford, he followed H.L.A. Hart in that chair.  He also taught at New York University, Yale, and the University of London.  He clerked for Learned Hand and worked at Sullivan and Cromwell.

Dworkin was undoubtedly one of the greats.  He transformed legal theory and the philosophy of law.  He was deeply committed to liberalism and equality, and lived a life of style and much grace.

Randy Barnett had the opportunity to study with Dworkin:

Dworkin did me a very good turn once. When I was deeply absorbed in Harvard’s extensive 9-hour criminal law trial practice program, I neglected my other courses. I showed up for one only to find I didn’t understand a word the professor was saying. After class, I made a bee line to the Registrar to drop the course, but being a third year student, I needed to find replacement credits. Dworkin agreed to sponsor an independent study for 1 credit hour (I don’t remember how I made up the other 2). I wrote a paper criticizing a chapter of his recently published book, Taking Rights Seriously, devoted to the proposition that there is “no general right to liberty.”

I met with him a couple times to discuss my paper, and the interchanges were amazing. Rather than respond to the criticism or argue, he got inside my argument to see what I needed to say in order to make it work. When he asked me whether I was willing to trade off property rights for an increase in liberty, and I declined, he replied: “Well then you’re not a libertarian, you’re a propertarian.” That challenge inspired a great deal of my early work on liberty that culminated in my book The Structure of Liberty: Justice and the Rule of Law (OUP 1998). (I am currently writing an Afterword for a new edition to be published by Oxford University Press).  (I still think I am a libertarian.)


A master rhetorician, Dworkin was not without his faults and weaknesses, but today is not the day to dwell on these.  Today, I choose to remember the man who did me a very good turn when I needed it badly, at a school where good turns from faculty were hard to come by, and something he did not need to do.  I remember him as a debater extraordinaire who, in his prime, could simply take your breath away when in verbal combat.  I remember him as a scintillating teacher who had a deep influence on me.  Before I became an originalist in the late 90s, if you had asked me about my approach to constitutional interpretation, I would have described myself as a Dworkinian.  Even when I was a very junior professor, he seemed to remember me when we met and was very gracious in his praise.

Another libertarian—Walter Olson—writes that there is much in Dworkin’s work that ought to appeal to libertarians:

I’ve taken a less-than-reverent view of Dworkin’s work myself on occasion, but obituaries make a suitable time to emphasize the positive, and the fact is that over decades of intra-Left legal debates, Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of law as a discipline in itself. His forceful arguments on First Amendment values were important in preventing the anti-speech feminism of Catherine MacKinnon from becoming the dominant view in American progressive circles. He warned appropriately against the temptation on both left and right to abdicate questions of jurisprudence to simple majoritarianism in one form or another, and argued eloquently on behalf of both formalism and constitutionalism (legal reasoning yields correct answers for adjudicating particular cases, and law is not merely an extension of politics by other means). True, he tended to fill these honorable vessels with very different contents than I or my Cato colleagues might. But better that than to smash the vessels and leave us with no inheritance of law or constitution or legal principle or rights at all, as not a few others on the Left were attempting to do over Dworkin’s long heyday.

Thanks to the Hart-Dworkin debate, Dworkin will forever be linked with H.L.A. Hart. Back in 2007, law professor Scott Shapiro outlined the nature of that debate. From the abstract:

Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. 

I recommend downloading the full paper. I side with Hart in the debate; morality can be—and often is—a subjective construct that depends in large part on cultural and religious norms. We all have our own concept of what constitutes morality and we would like that morality to find a place in the law, but my morality may not be yours and it is a tricky thing (to say the least) to demand that judges incorporate a standard of morality into their rulings when there are so many different standards of morality out there. To ensure that a standard of morality finds its place in the law, it is best to agitate for political action and to place pressure on legislative bodies in order to bring about a desired addition of a particular moral code into a body of law. So long as a law obeys the dictates of a validly enacted constitution and is passed by officials who are freely elected in a manner that comports with constitutional law, that law should be considered valid. Whether that law is moral is another matter—one best left for politicians and the electorate to hash out in debates and elections.

One of the problems with a Dworkinian jurisprudence is that it conveniently leads to legal outcomes that Dworkin the political animal liked. The New York Times’s obituary notes the following quote from Judge Richard Posner: “Dworkin’s dominant bent as a public intellectual is to polemicize in favor of a standard menu of left-liberal policies.” This critique was echoed by the late Judge Robert Bork, who said that “Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” It was fine and good for Dworkin to have a distinct political philosophy to which he professed great adherence throughout his life, but to come up with a method of jurisprudence that just happened to demand that judges make that particular political philosophy part and parcel of their rulings constituted gaming the system. Not everyone shares Dworkin’s political philosophy, but to believe in the validity of Dworkinian, anti-positivist jurisprudence, one is obliged to. That is a step too far.

And of course, some of Dworkin’s comments in the political sphere were silly. David Wagner’s remembrance recalls the following comment from Dworkin during the 2008 election:

Even a mediocre Democratic candidate should win easily. If a remarkably distinguished candidate like Obama loses, this can be for only one reason. We Americans can do something great in November. Or we can do something absolutely terrible and then live with the shame of our stupid, self-destructive racial prejudice for yet another generation.

Of course, it ought to go without saying that there were and are reasons to wish that Barack Obama were not president that have nothing whatsoever to do with race. And I have to believe that Dworkin was smart enough—and not nearly too partisan, despite his obvious partisanship—to believe otherwise.

But while Dworkin could be criticized for certain glaring faults, this is not the time to dwell on them. I certainly don’t want to dwell on them. Rather, let me end this post with an excerpt of Dworkin’s with which I am very much in sympathy:

We have a responsibility to live well, and the importance of living well accounts for the value of having a critically good life. These are no doubt controversial ethical judgments. I also make controversial ethical judgments in any view I take about which lives are good or well-lived. In my own view, someone who leads a boring, conventional life without close friendships or challenges or achievements, marking time to his grave, has not had a good life, even if he thinks he has and even if he has thoroughly enjoyed the life he has had. If you agree, we cannot explain why he should regret this simply by calling attention to pleasures missed: there may have been no pleasures missed, and in any case there is nothing to miss now. We must suppose that he has failed at something: failed in his responsibilities for living.

What kind of value can living well have? The analogy between art and life has often been drawn and as often ridiculed. We should live our lives, the Romantics said, as a work of art… . We distrust the analogy now because it sounds too Wildean, as if the qualities we value in a painting—fine sensibility or a complex formal organization or a subtle interpretation of art’s own history—were the values we should seek in life: the values of the aesthete. These may be poor values to seek in the way we live. But to condemn the analogy for that reason misses its point, which lies in the relation between the value of what is created and the value of the acts of creating it.

We value great art most fundamentally not because the art as product enhances our lives but because it embodies a performance, a rising to artistic challenge. We value human lives well lived not for the completed narrative, as if fiction would do as well, but because they too embody a performance: a rising to the challenge of having a life to lead. The final value of our lives is adverbial, not adjectival—a matter of how we actually lived, not of a label applied to the final result. It is the value of the performance, not anything that is left when the performance is subtracted. It is the value of a brilliant dance or dive when the memories have faded and the ripples died away.

It was once popular to laugh at abstract art by supposing that it could have been painted by a chimpanzee, and people once speculated whether one of billions of apes typing randomly might produce King Lear. If a chimpanzee by accident painted Blue Poles or typed the words of King Lear in the right order, these products would no doubt have very great subjective value. Many people would be desperate to own or anxious to see them. But they would have no value as performance at all. Performance value may exist independently of any object with which that performance value has been fused. There is no product value left when a great painting has been destroyed, but the fact of its creation remains and retains its full performance value. Uccello’s achievements are no less valuable because his paintings were gravely damaged in the Florence flood; Leonardo’s Last Supper might have perished, but the wonder of its creation would not have been diminished. A musical performance or a ballet may have enormous objective value, but if it has not been recorded or filmed, its product value immediately diminishes. Some performances—improvisational theater and unrecorded jazz concerts—find value in their ephemeral singularity: they will never be repeated.

We may count a life’s positive impact—the way the world itself is better because that life was lived—as its product value. Aristotle thought that a good life is one spent in contemplation, exercising reason, and acquiring knowledge; Plato that the good life is a harmonious life achieved through order and balance. Neither of these ancient ideas requires that a wonderful life have any impact at all. Most people’s opinions, so far as these are self-conscious and articulate, ignore impact in the same way. Many of them think that a life devoted to the love of a god or gods is the finest life to lead, and a great many including many who do not share that opinion think the same of a life lived in inherited traditions and steeped in the satisfactions of conviviality, friendship, and family. All these lives have, for most people who want them, subjective value: they bring satisfaction. But so far as we think them objectively good—so far as it would make sense to want to find satisfaction in such lives—it is the performance rather than the product value of living that way that counts.

(Footnote omitted.) Ronald Dworkin: A Life Well Lived.

Requiescat in pace.

Restoring Checks and Balances to the Drone Warfare Program

I am very pleased to report that I have an article on the website of the Atlantic Council regarding the subject. A snippet:

The Department of Justice has recently released a white paper detailing what it believes to be the scope of the president’s authority to kill Americans suspected of being members of al Qaeda—killings that are usually conducted via drones. The white paper argues that the killing of such suspects does not violate due process or the Fourth Amendment, claims that a lethal operation against such suspects does not violate the tenets of Executive Order 12333 (which among other things, prohibits assassinations), and states that the power to kill such suspects can take place “away from the zone of active hostilities.” Additionally, the president can authorize legal force against an American citizen located in a foreign country that either gives its consent to a legal operation, or “after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” A suspected American terrorist can be killed outside of the United States if the suspect “poses an imminent threat of violent attack against the United States,” but this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the near future.”

The white paper has prompted spirited reaction. Indiana University law professor Gerald Magliocca argues that it is too easy to authorize a lethal drone operation because it is not clear who qualifies as “an informed high-level official” for the purposes of determining that “a targeted individual poses an imminent threat of violent attack against the United States,” and because the language of the white paper might suggest that only one such “high-level official” is needed to issue such a determination. George Washington University law professor Jeffrey Rosen claims that the administration’s arguments do not pass constitutional muster. Harvard law professor Jack Goldsmith states that while “[t]here is little of substance that is new in the White Paper,” the white paper “does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially against American citizens,” including “excessive secrecy.” Goldsmith also argues that we need “a new framework statute” that would “define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.” Goldsmith’s call for a new framework is echoed by former secretary of defense Robert Gates, who has argued for the creation of a “third group” that would inform Congress and intelligence communities about drone strikes, thus creating more oversight for the process.

Click for more regarding what shape I think such oversight should take.