Yearly Archives: 2018

Of Constitutions and Concertos

Dec 19, 2018 Michael B. CoenenAdd a Comment

Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.

Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey.

That leads Toh to another possibility: Perhaps a musical work corresponds to the “pragmatically-enriched meaning” of a score. If a work encompasses something more than the score’s abstract instructions, then that “something more” might be the “traditions or conventions governing interpretation and performances of the relevant music” (P. 5.) This expanded definition would no doubt narrow the gap between what a song consists of and what a score connotes.  All the choices necessary to ensure an authentic performance might not appear within the four corners of the score, but the norms of a musical tradition might still be seen as incorporated by reference. And thus, the argument would go, when a performer has adhered to both the score’s instructions and the stylistic expectations of the relevant musical tradition, that performer can be said to have rendered a faithful representation of the work itself.

To Toh, however, even this expanded conception of a musical work would remain incomplete. The problem, as he sees it, is that some musical performances could still qualify as fully “authentic” even when they depart from the broader, “pragmatically-enriched” meaning of a score (P. 5.) Sometimes, that is, musicians who “take some liberties with the score, even in the pragmatically enriched . . . sense” will deliver performances that are “truer or more faithful to the relevant musical work, more authentic, than any that would adhere strictly to such a score” (P. 6.) Toh refers to such performances as “radically authentic musical performance[s],” or “RAMPs” for short.

Toh illustrates the concept of a RAMP with a hypothetical. Suppose that:

[t]he composer of a musical work and his audience had formed certain anticipations for performances of a work based on what he wrote, what the performance traditions or conventions for the relevant kind of work had been up to that point, and the instructions and tips that the composer had given to some musicians earlier. Then a new musician or ensemble comes along and delivers an electrifyingly new, even revolutionary interpretation. All, including the composer, are initially scandalized. The newcomers persist undaunted, however, and after a period of time, some critics, and the composer himself, are brought around. Eventually, the composer opines, and many agree, that the new interpretation is a ‘revelation’, and has enabled him and others to see the aspects or even the nature of the work that had hitherto eluded him and others. (P. 6.)

Toh offers some examples of RAMPs in action, but let me hazard an additional one from the domain of popular music. I (and I suspect others) have sometimes come across cover versions of songs that don’t just sound better than the original versions, but also, strangely, seem to adhere more faithfully to the “song” being performed. We can quibble about what entries belong on this list, but the general idea is that one musician might sometimes perform another’s work in a way that, while sounding quite different from the original recording, nonetheless better “captures the essence” or “gets to the core” of the source material. Hearing these covers evokes the thought: “Now that’s what that song was meant to be.” And by this we mean not that the cover conveys the performance the songwriter had always intended, but rather that the cover conveys a performance that better befits the song itself.

The idea of a RAMP suggests that our judgments about musical authenticity cannot be wholly disentangled from a deeper-level set of judgments about the nature of the work being performed. To some this might sound like nonsense: The most authentic performance of a musical work is the one that best aligns with what its author(s) and original audiences expected the work to sound like, period. But in a world that allows for the possibility of RAMPs, the “fidelity,” “purity,” or “truth” of a performance depends on not just the extent to which it sticks to the composer’s original plan, but also the fullness with which it realizes the potential that lies latent within the work. We might characterize such assessments as grounded in a sort of inner “logic” that emerges from the piece after its creation (P. 10.) Or, as Toh elsewhere speculates, we might even characterize such judgments as stemming from “what we find aesthetically valuable and interesting about that work or works of that type” (P. 19.) But however we ultimately communicate the point, a RAMP would represent a performance whose authenticity derives not from its similarity to whatever the composer of the piece envisioned, but rather from the listener’s own sense of what the piece itself demands.

Toh recognizes that our intuitions may vary as to whether something like a RAMP could ever exist. But if the intuition is correct, then it raises an interesting question about judicial work with written constitutions and, indeed, any form of written law. If performers can authentically interpret music while moving beyond a work’s pragmatically-enriched original meaning, then perhaps judges can do the same when they work with written legal texts, including constitutions. Just as musicians might sometimes render radically authentic musical performances, so too might judges render “radically authentic constitutional interpretations” (“RACIs”)— “performances” of a constitution that turn out to be “truer or more faithful to the constitution” precisely because they do not “strictly adhere” to the text’s “pragmatically enriched meaning” (P. 14.)

Toh’s claim here is not simply the familiar one that judges sometimes have good reason to depart from a constitution’s meaning (even in pragmatically enriched form). That would amount to a straightforward prescription for “non-originalist” judging, and so it would be subject to the standard stock of criticisms that such a prescription invites. Instead, Toh’s claim is that authentic constitutional interpretation might sometimes permit, or even require, judicial departures from the pragmatically-enriched constitutional text. And on this view, originalism and non-originalism need not stake out competing positions on the importance of interpretive fidelity as an adjudicatory value. Rather, non-originalists can be just as “committed to fidelity to the constitution as much as originalists,” while simply “believ[ing] that the constitution that judges must accurately reflect is not wholly constituted by the meaning of the constitutional text” (P. 21.) The non-originalist judge is not so much like the performer who decides to ignore the sheet music and play a better song. Rather, she is like the performer who regards the sheet music as only partially constitutive of the “song” to be performed.

It would be too facile, as Toh recognizes, to contend that that RACIs must exist simply because RAMPs exist (or vice versa). Constitutional texts and musical works are different in important respects, and those differences might end up supporting different conceptions of interpretive authenticity within each domain. Constitutions, unlike songs, exert binding force on people and institutions; constitutions, unlike songs, emerge from lawmaking bodies that claim a special authority to create them; constitutions, unlike songs, can be formally altered only through specifically-designated amendment procedures; and so on. But that is, in a way, the ultimate point of Toh’s extended riff on the music-law connection. What the example of musical performance helps to illustrate is that the ideal of interpretive authenticity depends at bottom on how we define the object to be interpreted. And, as Toh once again suggests, the question of how we define the object to be interpreted may depend, at least in part, on what we find “valuable and important” about the object itself (P. 19.)

This last observation tees up the final and most daunting question that Toh takes on: If our surface-level judgments about constitutional fidelity depend on deeper, value-laden conceptions of what counts as fundamental law, then is there an “ontology of constitutions, or of laws more generally, that would yield a conception of constitutional or legal authenticity that permits non-originalist adjudication, and at the same time meshes in the right and disciplined way with our normative interests”? (P. 21.) Toh has not fully worked out such an account, but he does here begin to sketch out how it might proceed. The central strategy involves the seeking out a “vindicatory natural history” of non-originalism—a sort of “state of nature narrative” that begins with some “initial situation” and spins out of that situation a tale by which non-originalism might have evolved to serve some salutary or worthwhile human needs (P. 21.) The idea is not to make any particular historical claim about how non-originalism actually came to be, but rather to tease out the most salient practical interests that legal systems help to serve—interests, perhaps, such as the coordination of collective behavior, the facilitation of long-term planning, or the expression of public values—and then to demonstrate, by reference to those practical interests, why and how non-originalism jibes with the most valuable and important features of the law to which it applies.

I won’t here rehash this last part of Toh’s paper, but I will certainly commend it to the reader’s attention. Suffice it to say that Toh’s roadmap of the argument, though tentative, is nuanced, wide-ranging, and challenging, drawing on the work of legal theorists, literary theorists, philosophers of art, social psychologists, and evolutionary biologists. And staying true to the topic at hand, the discussion highlights additional interesting connections between legal and musical interpretation, thus, in my view, further bolstering the case for thinking about these pursuits in tandem.

I’m reserving judgment as to whether this broader jurisprudential project can succeed, but Toh deserves credit for teeing it up in the way he has done so here. His insights about musical and legal authenticity are interesting in their own right and all the more so when considered together. They have left me rethinking some of my own assumptions about the nature of authenticity as an interpretive ideal, and they have raised plenty of follow-up questions that are well worth pondering on their own terms. Having previously assumed that the music-law analogy had run its scholarly course, I was delighted to encounter this powerful new variation on a well-worn theme.

Acts of Exclusion

Nov 21, 2018 Cary C. FranklinAdd a Comment

In recent years, there has been a resurgence of interest in the Gilded Age and the Lochner era. When one reads that the three richest Americans now control more wealth than the entire bottom half of the United States population, one cannot help but think of the vast wealth disparities between the Gilded Age’s railroad barons and oil tycoons and the masses of Americans who worked for them. For many, the Court’s recent decisions on topics such as unions and campaign finance likewise call to mind the Lochner era, in which legislative efforts to mitigate various kinds of inequality were sacrificed on the altar of “economic liberty.” But increasing income inequality and the neo-Lochner undertones of some of the Court’s recent decisions are not the only features of contemporary law and politics that call to mind the decades before and after the First World War. The resurgence of anti-immigrant sentiment and the current Administration’s pronounced efforts, both rhetorical and legal, to make clear who is welcome in this country and who is not echo in profound ways the xenophobic attitudes and acts of exclusion directed at “foreigners” in the early decades of the twentieth century. That is why Gabriel (Jack) Chin and John Ormonde’s recent article, The War Against Chinese Restaurants, so captured my attention when it was published earlier this year.

In this article, Chin and Ormonde recover the largely forgotten history of the national campaign, in the last decade of the nineteenth century and the first decades of the twentieth, to eradicate Chinese restaurants from the United States. Although the number of Chinese immigrants in the U.S. decreased over those years as a result of tight restrictions on Asian immigration, the number of Chinese restaurants skyrocketed. In 1870, Chinese restaurants employed 164 Chinese workers; by 1920, such restaurants employed over 11,400 Chinese workers. By that point, it had become clear that the “Chop Suey craze” was not just a fad. Americans seemed to have a limitless appetite for Chinese food. But the rapid proliferation of Chinese restaurants exacerbated powerful nativist anxieties about economic opportunity, immigration, and the racial make-up of the American polity. Unions in particular decried the diversion of jobs and money away from “the American wage-earner” and to “workers and employers from the Orient.” Union leaders feared that the low wages and low prices associated with Chinese restaurants would depress restaurant workers’ pay and deprive so-called American restaurants of much-needed revenue. Deeply intertwined with these apparently economic concerns was the widely-shared fear that Chinese immigrants constituted a threat to “traditional” American culture and that Chinese men, often portrayed as shifty opium-pushers, posed a threat to the safety of white women. Thus began a decades-long campaign, orchestrated by unions, politicians, and law enforcement officers, to eliminate Chinese restaurants from cities and towns across the country.

Chin and Ormonde provide a rich account of this campaign, and the shifting forms and rationales it assumed over time as it challenged and found ways to work around constitutional equality law. One of the first tactics unions turned to in their quest to force the closure of Chinese restaurants was the boycott. Boycotts of Chinese restaurants were common in these years, but they weren’t particularly successful. Unions fined their members to compel compliance, but the lure of the food (and the prices) was too great. There were numerous reports of union men, with an irresistible “fancy for Chop Suey,” “sneaking in the side doors of Chinese restaurants.” Union boycotts also sometimes ran into trouble in Lochner-era courts, which were fiercely opposed to union activity perceived to interfere with the operation of the free market.

When boycotts failed, unions sought to persuade policymakers and law enforcement officials to use the law to eliminate or restrict Chinese restaurants. At this point, the rationale for targeting these restaurants shifted dramatically. Increasingly, the perpetrators of the war on Chinese restaurants focused on the supposed threat these restaurants and their male employees posed to white women. This racial panic escalated dramatically after the 1909 murder of Elsie Sigel, a young white missionary from a prominent family, by a Chinese restaurant worker in New York. Sigel’s murder gave impetus to the campaign for bills all over the country banning white women from dining and working in Chinese restaurants. Numerous state legislatures considered such legislation, as did several municipalities. Interestingly, however, many of these bills encountered legal trouble. Equal protection law was not particularly robust in the early decades of the twentieth century. But many courts and commentators seemed to agree that these restrictions—“not imposed on any other restaurants”—were “plainly directed against the Chinese as a race” and thus contrary to the Fourteenth Amendment, particularly in light of the Court’s ruling in Yick Wo v. Hopkins.

Even more interesting, however, is what happened next. Largely unable to pass laws that facially discriminated against Chinese restaurateurs, opponents of such restaurants turned to facially neutral means of discrimination. Governments all over the country used planning and zoning ordinances, licensing regimes, and other ostensibly neutral regulatory measures to try to keep Chinese restaurants out of particular neighborhoods and close those in operation. In many places, these efforts got a big boost from police, who patrolled Chinese restaurants, harassing both the white women who tried to eat or work in them and the Chinese men suspected of corrupting those women. These forms of discrimination—often cast in facially neutral terms—were considerably more successful in subordinating Chinese people than the facially classificatory methods of discrimination often blocked by the law.

In an abbreviated section at the end of the article, Chin and Ormonde draw a few parallels between this history and contemporary law and culture. They argue that this history shows the pervasiveness of racism: its lack of confinement to any particular region of the country, its long-lasting effects, and the way it has reserved superior economic opportunities to whites. But it is a testament to the richness of the story they tell that there is so much more one could say about the contemporary relevance of this history. The history they recover illustrates how early in the life of the Fourteenth Amendment lawmakers began to turn to facially neutral means to preserve the racial status quo and how much of the subordination of historically oppressed groups is attributable to laws and policies that do not formally classify on the basis of race. This history illustrates in a particularly vivid way how dramatically the Court constricted the ability of equal protection law to combat racial subordination when it decided forty years ago essentially to give a free pass to facially neutral state action despite any disparate effects it may have on historically subordinated groups.

There’s also a powerful story here about gender and its interaction with race. In 1909, xenophobic lawmakers exploited the murder of Elsie Sigel to argue not only for the elimination of Chinese restaurants but for a sharp reduction in Chinese immigration. Today, opponents of Mexican immigration make similar use of the murders of Katie Steinle and Mollie Tibbetts; the current President justifies his harsh stance on immigration by invoking the specter of Mexican rapists. But it is not just the depressing longevity of the strategy of stoking fear about the defilement of white women to justify the harsh treatment of racial minorities that’s interesting here. So much of Chin and Ormonde’s article is actually about women at work—Chinese women who were rendered invisible and subordinated by the portrayal of Chinese restaurant workers as sexual predators and white women who were barred from vast numbers of jobs in the name of protecting them from an imagined threat to their wellbeing. It is instructive to read The War on Chinese Restaurants in the #MeToo era, the era of the Kavanaugh hearings and the President’s Access Hollywood tape. This piece of history helps one to see more vividly how manufactured panics about the dangers of non-white immigrant men—then and now—enable those in power to obscure where the real threats to women lie.

Editor’s Note: For a previous review of The War Against Chinese Restaurants, in the Legal History section, see Joanna Grisinger, Restaurants and Regulation (November 7, 2018).

Excavating the Forgotten Suspension Clause

Oct 26, 2018 Helen NortonAdd a Comment

In Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Amanda Tyler undertakes “to lay out as comprehensively as possible the full story of the legal and political history of the constitutional privilege of the writ of habeas corpus.” She does so with care and style.

In excavating what she calls the “forgotten” Anglo-American legal history of the writ of habeas corpus, Tyler begins, of course, at the beginning, in seventeenth-century England. Among the products of Parliament’s longstanding battle for power with the crown, the original Habeas Corpus Act of 1679 provided that a person who could claim the protection of English law could be detained—that is, imprisoned by the king and his ministers—only through timely criminal prosecution and conviction. Absent timely prosecution, the Act required the prisoner’s discharge. Period.

Because the Act made no allowance for wartime or other emergency detentions, however, ten years later Parliament scrambled to create an exception by inventing the concept of suspension—in which Parliament (but not the crown) could suspend the Act’s protections during times of crisis. But once a suspension expired, the Act again put the government to a clear and simple choice: either prosecute the detainee or release him. Period.

A century later, England’s view that the Habeas Corpus Act did not apply in America was among the colonists’ major grievances: England denied that Americans were entitled to the rights of Englishmen, while Americans believed otherwise. After the Revolution, each of the newly united states quickly enacted statutory or constitutional habeas corpus protections (or both) of their own, such that a half-century later Joseph Story’s Commentaries concluded that the Act had been “incorporated into the jurisprudence of every state in the Union.”

The drafters of the new national government quickly followed suit. Those at the Philadelphia convention sought to improve on English protections of individual rights by expressly limiting the Constitution’s suspension power to those times “when in Cases of Rebellion or Invasion the public Safety may require it.” The early Congress took this limitation on its power to suspend seriously—so seriously that it rejected the first proposal for suspension, made by then-President Thomas Jefferson in response to Aaron Burr’s military conspiracy.

Not until the Civil War did the United States see its first suspension of the writ, famously (or infamously) asserted by Lincoln as President. Tyler concludes that Chief Justice Taney had the better argument—certainly backed by history—when he concluded that suspension is a legislative and not an executive power (Congress eventually passed legislation that delegated the power to Lincoln). But everyone, including Lincoln, agreed that suspension was necessary before the government could detain persons outside the criminal process who, like Confederate sympathizers, could claim the protection of American law. And shortly after the War, during Reconstruction, Congress authorized President Grant to suspend the privilege to deal with rising Klan violence in the South.

Well into the 20^th century, as Tyler painstakingly documents, the consensus understanding remained consistent: “[T]he origins and long-standing interpretation of the Suspension Clause understood it to prohibit the government, in the absence of a valid suspension, from detaining persons who can claim the protection of domestic law outside the criminal process, even in wartime.” Even in wartime. Especially in wartime.

But World War II brought the sea change in which this longstanding understanding was “forgotten.” The United States government forcibly relocated and detained 120,000 Japanese-Americans (70,000 of whom were American citizens) without criminal prosecution and without a suspension of habeas corpus. Initially, Attorney General Francis Biddle advised that no such detention could occur without a suspension of habeas corpus protections. He later backed down, recounting still later that “the Constitution has never greatly bothered any wartime President.”

But the President was not alone. Not only did a majority of the Supreme Court infamously find that the federal government’s action, concededly based on race and national origin, did not violate its equal protection obligations under the Due Process Clause, but it made no mention of habeas corpus protections, much less the conspicuous absence of any suspension.¹ (As a matter of equal protection, the contemporary Supreme Court only recently finally made clear that Korematsu “was gravely wrong the day it was decided.”² But still no mention of habeas corpus.)

Fast forward to the contemporary war on terror. Tyler explains how the World War II experience paved the way for the federal response to 9/11, backed by the Supreme Court in Hamdi v. Rumsfeld,³, which permits the detention of U.S. citizens on American soil as enemy combatants, outside of the criminal process and absent any suspension. As Tyler explains, that response is inconsistent with historical practice (prior to World War II), as well as the framers’ understanding

And although the Court in Boumediene v. Bush,⁴ concluded that Guantanamo detainees enjoyed habeas protections, it did not order “the traditional remedy of release from custody” even though Congress has not suspended the privilege, nor had they been criminally charged. The Court instead held that the detainees were entitled to greater opportunity to challenge their designation than Congress had offered them by statute. Tyler suggests that the Court has conflated, if not confused, Due Process Clause precedent with the habeas privilege in a way that undermines habeas protections. The historical understanding of the writ required prosecution, suspension, or release—one of those three things, and no other. Today’s Court has instead devised a balancing test in which detention can last for the duration of the conflict—in other words, indefinitely and perhaps as long as the detainee’s life—so long as a tribunal assesses the government’s claims to support the detention. That’s not the same.

To be sure, Tyler doesn’t insist that reliance on historical tradition is the only or necessarily the best approach to constitutional interpretation (nor does she address the role of habeas outside the wartime context, and many may be eager to hear her views on its application in the immigration setting or in other criminal justice contexts). She instead emphasizes that history is relevant and valuable, and thus that it should be part of the discussion. There may be good reasons to depart from historical understandings and practices. But it’s hard to see any good reason for failing to discuss that backdrop altogether, much less failing to explain when and why to abandon or alter longstanding and fundamental traditions.

The Law of Obstruction as a Check on Presidential Power

Sep 21, 2018 Charles Shanor & Amanda ShanorAdd a Comment

Charles Shanor

Amanda Shanor

Full-length articles on current newsworthy issues are a difficult genre. Special praise, therefore, goes to legal scholars who thoroughly explore a constitutional question on a hot-button issue not only in depth and in a timely fashion, but with insights that exceed the present moment. Dan Hemel and Eric Posner have made just such a contribution with Presidential Obstruction of Justice.

“Can a president be held criminally liable for obstruction of justice?” they ask. (P. 1.) This question has taken on greater urgency in the wake of President Trump’s firing of FBI director James Comey and the continuing investigation by special counsel Robert Mueller into Russian efforts to interfere with the 2016 presidential election and possible collusion between Russia and the Trump campaign.

Hemel and Posner’s article gives this question, and the range of constitutional and policy issues that it raises, a thorough analysis in succinct and punchy prose. They harmonize constitutional text and history—most importantly the arguably conflicting principles that the president is vested with the “executive power” and that no one, not even the president, is above the law—with federal obstruction statutes that bar anyone from interfering with law enforcement based on a “corrupt” motive. At the same time, Hemel and Posner make a broader point: “[W]ithout anyone noticing it, the law of obstruction of justice,” they observe, “has evolved into a major check on presidential power.” (P. 1.) Obstruction allegations have been levied against six of the last nine presidents or their close aides—raising the stakes on whether, and in what circumstances, a president can obstruct.

Hemel and Posner begin their argument with the arguable tension between the principle that the president controls the quintessentially executive functions of criminal investigation and prosecution and the bedrock notion that no one is above the law. Generally, as the nation’s top law enforcement official, the president possesses the power to end investigations and to fire executive branch officers who fail to maintain his confidence. If the president can fire an FBI director who displeases him, why can’t he fire one who pursues an investigation he wants shut down, regardless of motive? Surely, no one thinks that the president should be able to murder his valet and call off the investigation of it, Hemel and Posner respond. More seriously, neither should the president be able to control law enforcement to hamper political opposition. If he could, they observe, he or his aides could engage with impunity in criminal activity to harass their opponents—precisely what the Watergate burglary illustrates.

Article II suggests an answer to this puzzle, they argue. It not only vests the executive power in the president, but it obligates him to “take care that the laws be faithfully executed.” The exercise of the executive power, while vast, is not unlimited. It does not encompass the power to “corruptly” interfere with law enforcement to benefit oneself, family, or political allies. The trick is how one defines “corrupt,” meaning “with an improper purpose.”

The authors take a historical and originalist approach to this question, beginning with the Declaration of Independence’s charge that George III interfered with the administration of justice in the colonies. Parsing obstruction of justice statutes and cases, they survey the law of obstruction to the present day, including Watergate, Iran-Contra, the impeachment of President Clinton, and the dismissal of U.S. Attorneys under President George W. Bush. This historical survey helps elaborate the meaning of “corruptly.” Hemel and Posner then harmonize this history with the special role of the president in law enforcement, the constitutional provisions elaborating on that role, and recent precedents, both in the impeachment and prosecution contexts, to frame the parameters of obstruction.

Significantly, Hemel and Posner reject the unitary executive argument that the Constitution vests “complete” presidential control over federal law enforcement so that, as President Trump’s lawyers have argued, he cannot exercise the power unconstitutionally. There may be substantial gray area in what constitutes obstruction, but it is not the case that the president, by dent of his role, cannot commit it.

The article’s historical and analytical survey provides a foundation for the authors’ proposed definition of presidential obstruction: “A president commits obstruction of justice when he significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests. He does not, however, commit obstruction when he acts on the basis of a legitimate and good-faith conception of his constitutional responsibilities, even if he receives a personal or pecuniary benefit or incidentally advances his party’s interests.” (P. 37.)

Hemel and Posner do not spell out all the scenarios that might meet that standard, but they explore a wealth of variations, providing a rich basis for analyzing cases that might arise. In particular, they explore presidential discretion to intervene in an investigation because the president thinks national security depends on it, or to stop prosecuting cases involving possession of marijuana because he considers such efforts a poor use of scarce enforcement resources. But the Constitution does not authorize the president to employ his office for personal or partisan advantage—say, to advance the financial interests of a family member or call off the prosecution of a senator from his own party who is up for reelection.

The authors canvass various counter-arguments and complications, including cases of mixed motives, the pardon power, whether a sitting president can be indicted, and the canon of constitutional avoidance. The authors’ approach is nuanced and rich with examples, so we will only hit a few highlights.

Recognizing the deep challenge that mixed motive cases present, they reject a “partially corrupt motive” test as too broad, given presidents’ involvement with politics. They argue instead for a “but-for” motive: If the president would not act “but for” the corrupt motive, the charge is actionable.

Next, they ask whether the president’s exercise of the pardon power could ever itself constitute obstruction. And what of the argument (prominently made by Alan Dershowitz) that because the president possesses the power to pardon, he must possess the lesser-included power to end criminal investigations, regardless of motive?

On the first point, the authors contend that while a “corruptly” given pardon would still be effective, excusing the grantee of criminal process, it is a separate question whether the president, as grantor, could obstruct justice by granting the pardon. And because nobody thinks a presidential sale of pardons for money could not be prosecuted, in principle the pardon power can be used to obstruct.

On the second, the authors convincingly argue that Dershowitz is wrong: from text, structure, and function, the president cannot self-pardon, so he has no “lesser power” to drop an investigation of himself. Further, Dershowitz’s argument rests on a conceptual error: the power to drop an investigation is different in kind and effect than the power to pardon. The pardon power is public, with different political costs and implications, than the ability to drop an investigation in secret.

Concerning the implication for their argument of whether a sitting president can be criminally indicted, Hemel and Posner offer this synopsis: “First, the claim that a sitting president cannot be convicted of a crime while in office does not represent settled law. Second, even if a president cannot be convicted of a crime while in office, it may be possible to convict him after he leaves office of a crime he convicted while in office. Third, even if a president cannot be convicted of a crime committed while in office, he may be impeached for such a crime.” (P. 52.)

Finally, the authors consider whether the constitutional avoidance canon should be used to excise the president from the reach of ambiguous obstruction statutes. No, they conclude: the statutes contain no arguably ambiguous language. Interpreting “whoever” to mean “whoever, except the president” would do violence to the statutory language, not avoid ambiguity.

The authors make two major points in closing. First, they ask, what to make of the historical anomaly that obstruction charges have been raised against so many recent presidents or their aides, while no such charges were brought against the first 36 presidents? This development is perhaps explained, they posit, by the growth in presidential power, the difficulty of impeachment, and the weakness of electoral mechanisms to control that power. The law of obstruction, in other words, has developed as a matter of necessity, as a valuable check in the face of growing executive abilities and incentives to use law enforcement for personal or political ends.

Second, should the rise of the law of obstruction as a check on presidential power be “celebrated or bemoaned”? On the one hand, the law of obstruction may provide a needed check on abuse. On the other, its growth may mean that “all presidents will permanently be under investigation even when they do nothing wrong.” (P. 59.) The authors remain normatively uncommitted—suggesting, perhaps appropriately, that only time will tell.

In short, this is a fabulous article concerning both immediate constitutional issues and lasting constitutional structural developments.

Criminal Fines and the New Debt Peonage for Poor Fathers

Aug 9, 2018 Rebecca Zietlow2 comments

In the 1980s and 1990s, many scholars and advocates debated the best way to reform our country’s welfare system. During those debates, feminists called for increased enforcement of child support orders against “deadbeat dads.” Congress enacted the 1996 welfare reform act known as the “Personal Responsibility Act” at the same time as it promulgated “war on crime” measures that increased federal penalties for drug-related crimes. Twenty years later, our country is experiencing both a rising gap between the rich and poor and mass incarceration of men of color. Many scholars have discussed the problem of mass incarceration, but there is far too little scholarship on the experience of poor people affected by welfare reforms.

Cortney Lollar’s Criminalizing (Poor) Fatherhood shines a welcome spotlight on the role that law plays in increasing the misery of the poor. In this well-written and well-reasoned article inspired by Lollar’s experience as a public defender, she shows how the confluence of welfare reform and criminal-enforcement measures result in state child support systems that jail non-custodial fathers who cannot afford to pay their child support. Lollar uses feminist analysis to demonstrate how an approach once advocated by feminists actually perpetuates stereotypes about fathers as providers and undermines their relationship with their children, without aiding the mothers who the reforms were supposed to help. Criminalizing (Poor) Fatherhood is a must read for anyone interested in how our criminal justice system perpetuates racial, class, and gender inequality in our society.

Imprisoning a person who is unable to pay his debts conjures up images of Dickensian poor farms and Oliver Twist. In the 1983 case of Bearden v. Georgia, the United States Supreme Court held that imprisoning a person for his failure to pay a debt violates due process unless that person could pay the debt yet willfully refused to do so. Although that decision was grounded in the Fourteenth Amendment, forcing people to work to pay off their debts also arguably constitutes involuntary servitude in violation of the Thirteenth Amendment. Nonetheless, debt peonage is alive and well in this country, as people are imprisoned for their failure to pay court-imposed fees and fines. Fathers jailed for failure to pay child support make up a sizable percentage of those caught up in this system. Child support judgments are based on “potential” income, not actual ability to pay. Moreover, Bearden notwithstanding, fathers are rarely given a hearing to show that they simply cannot pay the debt that they owe. As a result, according to Lollar, “a father convicted and incarcerated for failing to pay child support will likely cycle in and out of the criminal justice system over his lifetime.”

Since the 1700s, states have enacted criminal laws requiring fathers to pay support for their children, but the only people who are affected by these laws are the poor who are unable to pay. The state has more effective means of collecting from wealthier fathers, including garnishing pay checks and tax returns. Current federal law requires custodial parents who file for welfare benefits to assist the state in identifying the father and establishing paternity, and then to assign their rights to collect child support to the state. The state is most aggressive at prosecuting fathers whose children receive welfare benefits.

Supporters of the existing system argue that it furthers the well-being of children and helps to fund the child support-enforcement system. Lollar effectively contests both arguments. First, she points out that the child support payments do not go to children, but to the state. Instead of helping children, jailing their fathers hurts them because it destabilizes the relationship between the child’s parents and makes it less likely that fathers will be involved in their children’s lives. Says Lollar, “If the welfare of children were truly the concern, the child support system would be designed to encourage parental involvement, not just paternal income.” Second, the cost of incarcerating fathers is far greater than the amount of the payments collected. It should also be obvious to lawmakers that jailing fathers decreases their ability to pay their debts, by disabling them entirely while they are in jail and saddling them with criminal records that make it hard for them to find good jobs after they are released.

Given the paucity of evidence supporting the policy of criminalizing the non-payment of child support, what could possibly justify this unjust system? Here, Lollar uses feminist analysis to show how a system that is supposed to help support and empower poor mothers actually perpetuates stereotypical gender roles. Says Lollar, “[We] punish fathers because they fail to fit the traditional stereotypical image of a white, heterosexual, able-bodied upper-middle-class father. Very few families conform to this image, yet our laws remain wedded to this deeply entrenched role.” Other aspects of fatherhood, including caretaking and non-cash contributions, simply don’t count. To address this problem, Lollar argues convincingly that child support systems should define child support more broadly and provide incentives for fathers to become more involved in the care of their children.

Criminalizing the failure to pay child support also has racial overtones. African-American men are disproportionately affected by the criminalization approach. At times, our system has tragic effects. Lollar begins her article with the story of Walter Scott, a black man shot in the back by a police officer in South Carolina. Scott fled police because he owed $18,000 in child support, a debt that he could never afford to pay. National outrage over Scott’s death largely overlooked the role that criminalizing child support played in this tragic incident of racial injustice. Criminalizing (Poor) Fatherhood illustrates how criminal sanctions for failure to pay child support have contributed to the mass incarceration of African-American men.

Race also influences the larger context addressed by this article: the increase in the debts of poor people, the role the state plays in that indebtedness, and the rise of modern forms of debt peonage. After the death of Michael Brown in Ferguson, Missouri, anger at the treatment of blacks by local police led to mass protests and riots. Investigators discovered that the budget of the Ferguson police force depended on fines levied for minor traffic infractions—fines that were disproportionately imposed on people of color.

For a brief moment, national attention focused on the plight of poor people of color forced to fund a system biased against them. Since then, the nation’s attention has turned to other matters, but a new wave of scholars and activists are now addressing the role that court-imposed fines and fees pay in the carceral state. With Criminalizing (Poor) Fatherhood, Cortney Lollar makes an outstanding contribution to this important project.