You, Yes, You Own the Military, So Help Fix It

Today’s Don’t Ask Don’t Tell panel consisted of two lawyers from the Servicemembers Legal Defense Network (SLDN) and two former military officers.

The panel began with an overview of the current effects of the Don’t Ask Don’t Tell policy (10 U.S.C. § 654). The Don’t Ask part of the statute prevents the military from asking about sexual orientation when someone joins. However, once in the military, a gay service member must constantly guard his words and actions or suffer the consequences of being outed to his superiors. 11,000 service members have been discharged since the policy was enacted in 1993, with an average of 2 discharges per day.

The two service members on the panel gave a personal view of the DADT policy at work. Cholene Espinoza spoke about remaining in the military while hearing about other service members who were discharged for being gay. Having taken the military oath not to lie, steal or cheat, nor tolerate others who do, Espinoza acknowledged the deep irony that in order to remain an officer, she was forced to lie about her own identity as a lesbian. Because of the DADT policy, Espinoza called the military “broken.”

“You own it,” said Jeff McGowan, reminding the audience that all Americans have the capability and responsibility of pushing the military to change its discriminatory policy. The Constitution, after all, placed the military under the authority of a civilian government of the people, and that remains equally true today.

McGowan also pointed out in response to a student question that the military is using the same arguments against allowing openly gay service members as were used to oppose the integration of blacks into the military. Those arguments are only a pretext for discrimination. Many countries have openly gay service members, including Britain and Israel, disproving the argument that Don’t Ask Don’t Tell is necessary for the unity and morality of the American military.

The DADT policy is being challenged in the courts on the grounds that it violates the substantive due process and equal protection clauses of the Constitution and suppresses First Amendment rights. In Congress, there are more than 100 cosponsors for the Military Readiness Enhancement Act (H.R. 1059), a bill seeking to repeal Don’t Ask Don’t Tell.

In addition, the fight continues against the Solomon Amendment (10 U.S.C. § 983) despite the recent Supreme Court decision upholding its constitutionality (Rumsfeld v. FAIR). The Solomon Amendment threatens to withdraw federal funds from any university that prohibits military recruiting. In essence, it silences universities, preventing them from expressing their disapproval of the military’s DADT policy, a questionable use of the Congressional spending power.
(More on this subject after this weekend’s GALLA conference at Harvard Law School.)

ACS v. FedSoc: Good Samaritan Laws

This post is the next installment in part of an ongoing exchange between Fed Soc and ACS. This installment focuses on Good Samaritan Laws and their potential effects on American culture and the American legal system. To see the FedSoc post, click here.

In response to last Thursday's post on the FedSoc blog, I, too, am going to concentrate on the second type of Good Samaritan laws, which require people by law to assist others if they can do so without risking harm to themselves. So, to take the FedSoc examples, these laws would apply to the neighbors who didn't call the police when the New York woman was being stabbed, but not to the man who jumped down onto the subway tracks to save the teenager having the epileptic fit.
For the most part, I agree with the FedSoc blogger's position. I agree that individual rights are paramount in the American system; I think that having Good Samartian laws would encroach on those rights, as well as present serious administrability issues. But it is important to note that in most places, the sanctions for Good Samaritan law violations are fines, not imprisonment. So the burden to the individual is not quite as alarming as it first appears.
I also disagree with the idea that Good Samaritan laws would have a harmful effect on people's willingness to save others out of goodwill. I don't think the value of saving someone else would be lessened simply because the law required it. We still think policemen are heroic, and they're paid to come to the assistance of others. And in most of the heroic examples listed in the FedSoc post, Good Samaritan laws would not apply, because what made those acts heroic was the degree to which the heroes risked danger to themselves. The value of those acts will not change.
Good Samaritan laws are meant to encourage a lower level of heroism, the kind that might be overridden by an unwillingness to get involved. One of the justifications for codifying criminal laws is to express the mores and values of a society; Good Samaritan laws express a value of action over apathy when someone else is in danger and you can help them without risking yourself. But ultimately, I must agree that in this particular balancing of social welfare and personal autonomy, personal autonomy is a little heavier.

T-Shirt Idea Submission Deadline: 2/28!

Hey All,
The final deadline to submit T-Shirt ideas is 2/28 so please take this opportunity to combine your creative energy with a progressive spirit. Remember, your idea need not be a complete design: send us a phrase or concept and we can run with it. Ideas can be posted to the blog or sent to anyone on the ACS Media Committee. Here's a few refined designs we've got thus far:






(Either design can be on either baby blue or white T-Shirts)

Abraham Lincoln on Executive Options for Unauthorized, Preemptive War

On October 10 and October 11, 2002, the House of Representatives and the Senate, respectively, passed a joint resolution that came to be known as the Authorization for Use of Military Force Against Iraq Resolution of 2002. This resolution, signed by President Bush on October 16, 2002, specifically authorized the President to use our armed forces to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." At the time of the resolution, the Executive Branch wanted a resolution authorizing military action throughout the Middle East, however, the Joint Resolution only authorizes military action in Iraq.

Current bellicose bluster from administration officials, direct White House involvement with intelligence assessments, military brass presentations, and aggressive troop movements in the Persian Gulf indicate that the Executive Branch may be interested in provoking a military or paramilitary response from Iran.

Beyond merely provoking an Iranian response, other sources close to the current administration claim that the Executive Branch may contemplate a preemptive, unprovoked strike against Iran, even without Congressional authorization.

If the Executive Branch's behavior were to constitute a first strike in a shooting war between the U.S. & Iran, Abraham Lincoln would likely consider the behavior unconstitutional at best and anti-republican at worst. He wrote this letter to his law partner, William Herndon, shortly after the culmination of the Mexican-American War. In an earlier letter, Herndon had argued that the President could initiate war against Mexico without Congress's prior authorization.

WASHINGTON, February 15, 1848.

DEAR WILLIAM:--Your letter of the 29th January was received last night. Being exclusively a constitutional argument, I wish to submit some reflections upon it in the same spirit of kindness that I know actuates you. Let me first state what I understand to be your position. It is that if it shall become necessary to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country, and that whether such necessity exists in any given case the President is the sole judge.

Before going further consider well whether this is or is not your position. If it is, it is a position that neither the President himself, nor any friend of his, so far as I know, has ever taken. Their only positions are--first, that the soil was ours when the hostilities commenced; and second, that whether it was rightfully ours or not, Congress had annexed it, and the President for that reason was bound to defend it; both of which are as clearly proved to be false in fact as you can prove that your house is mine. The soil was not ours, and Congress did not annex or attempt to annex it. But to return to your position. Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--"I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't."

The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.

Yours truly,
A. LINCOLN.

Letter from Abraham Lincoln to William Herndon (Feb. 15, 1848), in The Writings of Abraham Lincoln - Volume 2: 1843-1858 (Arthur Brooks ed., 1923) (emphasis added).

Hat tip to Andrew Sullivan.

Nixon Coin Enthusiasts Will Have to Wait

New U.S. dollar coins featuring former Presidents go into circulation this week. The coins will feature the Presidents in order, 4 per year.

Unfortunately for Nixon enthusiasts, this means that the 37^th President of the United States will not grace a $1 coin until 2016.

O.W. Holmes Jr. Man of His Time Club Member: Justice Bradley in Bradwell v. Illinois

From a certain point of view, Bradwell v. Illinois, 83 U.S. 130 (1873), is a forgettable case. In Bradwell, the Court builds on the Slaughter-House Cases, holding that the right to practice law is not among the Privileges or Immunities protected by the 14^th Amendment.

What is memorable about the case is Justice Joseph Bradley's (wink, wink) concurrence in this 8-1 opinion.

Based on the undeniable power of this concurrence, I'm proud to announce that Justice Bradley has just won entry into the hallowed halls of the O.W. Holmes Jr. Man of His Time Club, a select club for bygone Supreme Court Justices who included startlingly pre-modern passages in their opinions. (Of course, Holmes's opinion in Buck v. Bell is offensive enough to install him as the permanent founding member.)

Here's Justice Bradley, concurring that the 14^th Amendment doesn't prohibit Illinois from denying Myra Bradwell admission to the bar on the basis of her sex:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband . . . It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

Bradwell, 83 U.S. 130 at 141.

After the Gavel: Anna Nicole Smith & Other Star-Crossed Litigants

In law school, no case receives more than an hour's attention – Marbury v. Madison? Brown v. Board? Roe v. Wade? The Steel Seizure Case? Each gets an hour, tops. As law students hop from case to case, they generally leave each case with a sense of permanence: The matter between the parties is resolved. The issue is put to rest. Next case.

Anna Nicole Smith's sudden and tragic passing today highlights, the lives of the litigants go on after their famous day in court concludes. As we skip around the law, we generally do so unaware that the parties to a well-known case might not have lived happily ever once they left the courthouse.

As Adam notes elsewhere in this blog, it is with sadness that we learn of Ms. Smith's fate; however, she is not the first litigant to die soon after a major court victory or defeat. It's sad but unsurprising when a gravely injured litigant dies soon after their day in court. It's altogether different when a seemingly healthy party dies shortly after the final gavel.

Anna Nicole Smith: An icon of popular culture, Ms. Smith was one of the most immediately recognized and well-known Americans; however, she only gained the professional attention of the legal community through the protracted legal battle over her late husband's estate — a battle ultimately leading to her SCOTUS victory in Marshall v. Marshall, 126 S.Ct. 1735 (2006).

In something of an ironic twist of fate, Ms. Smith is predeceased by E. Pierce Marshall, the named defendant in Marshall v. Marshall and son of Smith's husband J. Howard Marshall II. Mr. Marshall died of an infection on June 20, 2006, less than two months after losing at the Supreme Court.


Tyrone Garner: Although Mr. Garner's name is not immediately recognizable to most law students, his legacy as co-plaintiff in Lawrence v. Texas, 539 U.S. 558 (2003), represents a monumental leap forward for gay rights in the United States. Unfortunately, Mr. Garner's chance to relish this powerful victory was short lived, and he died of meningitis on September 12, 2006.


Richard Loving: Although Richard and Mildred Loving's successful battle against Virginia's ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967), would have a profound effect on marriage in America, their own marriage would be tragically cut short. On June 29, 1975, Richard, Mildred, and Mildred's sister Garnet were traveling by car when they were hit by a drunk driver, killing Richard. Richard Loving was 41.


Dred Scott: In the infamous Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Supreme Court determined that slaves could not be citizens of the United States: a decision that helped provoke a civil war, led directly to the Civil Rights Act of 1866, and ultimately to the Fourteenth Amendment to the U.S. Constitution.

For better or worse, Dred Scott experienced none of these subsequent developments. Having been granted his freedom by his eventual owners in early 1858, Scott died of tuberculosis on September 17, 1858.

A Supreme Court Icon Passes...

The death of Anna Nicole Smith has hit me by surprise. America has lost both a gay icon, and one of the most awesomest Supreme Court litigants of recent history....
Yes, in her memory, let's not forget the contributions to jurisprudence of Marshall v. Marshall,
126 S.Ct. 1735 (2006)...
In an opinion by another gay icon (and CLS alum and my favorite justice) Ruth Bader Ginsburg wrote for the court that the probate exception to federal courts jurisdiction did not ban the exercise of jurisdiction over a widow's claim of tortious interference with her expected inheritance against her stepson in her bankruptcy proceeding.
Which apparently was a big question for bankruptcy and federal courts wonks.
But more importantly, Anna Nicole actually represented the "American Dream" in some ways. At 17, she married a coworker at a small-town Texas fried chicken restaurant... At 19, she had a child, and was divorced. Working in strip clubs, she became a successful model for Guess Jeans and H&M in Europe. She struggled with her weight for years, and unfortunately, may have turned to drugs to cope with attention from the media to her weight....
R.I.P., Anna Nicole.....

CLS's Zaid A. Zaid — Do We Still Owe Iraq?

CLS ACS member and former Foreign Service Officer Zaid A. Zaid asks "Do We Still Owe Iraq?" in his review of Noah Feldman's What We Owe Iraq.

Zaid's review appears in the inaugural issue of the Harvard Law & Policy Review and you can download a .pdf file of the review here.

Following Up: Chilling Representation

Defense Department official Charles "Cully" Stimson – who angered Whitney and many others with his encouragement that corporate America boycott law firms that provide pro bono representation to detainees at Guantanamo – has finally resigned.

ACS v. FedSoc: Feel the Love

Rick & Rob decided to commemorate the first ACS & FedSoc joint blogging effort by mugging it up — assuming the most awkward treaty handshake poses possible.

This week, Rick & Rob addressed Federalism, Property Rights, and Markets v. Management.

ACS v. FedSoc: States or Federal

In this, our first installment of the ACS-FedSoc semester-long exchange, the ACS and FedSoc media committees will begin with a few broad ideological distinctions between the two groups. Please remember the writers write on their own behalf. For more information click here.

States or Federal

          It seems a common critique of the ACS and left-leaning legal voices that they disregard states’ rights; that they desire an omnipresent and overwhelming federal government. States are powerful engines of progress — in the “progressive” sense. Workers’ compensation, universal health care, and rational climate change policy all began (or are beginning) with bold action from state governments. As Justice Brandeis put it: “[t]here must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). However, states have also served as bastions for discrimination and unequal protection under the law, shielding (or perhaps obfuscating) immoral and fundamentally un-American practices behind the mantra of “states’ rights.” So we are left with a complicated picture: states must be free to serve as democracy’s laboratory, but this freedom cannot be invoked for anti-democratic and unconscionable ends. In that spirit, it seems prudent to assess practical consequences when vesting political power at one or the other level of government.
          Rick points to federal “usurpation” of states’ powers in providing social services as depriving states of the ability to compete for their citizenry. This observation is both deft and daft. Apt in that it accepts the welfare state and admits its desirability to citizens. His comments are marred by an implicit contradiction: social security is premised on the understanding that government is better positioned than individual citizens are to care for the general welfare. The point of social security is to sacrifice choice in the name of financial and social stability.

      To see a FedSoc Member's take on this issue, click here.

ACS v. FedSoc: Markets or Management

Markets or Management

          Citizens resort to the judicial system when other social institutions ignore their needs, and the image of judge as problem-solver is the core of judicial legitimacy in America. Toward strengthening that legitimacy, judges must not excuse inequity by prostrating themselves to the sanctified “market.” In its language of origin, economics, a free market is the optimal mechanism for allocative questions only when it is unimpeded by market imperfections and satisfies certain assumptions. These assumptions are abstractions that cannot be met in the real world (e.g. “perfect information”) and indeed economists look to government to assuage imperfections (securing property rights, combating monopolistic practices, etc.). It therefore is a distraction to claim that belief in the free market preempts judicial decision-making that does not blindly rely upon markets. In fact, the use of judicial power (or the power of any branch of the government) to address market imperfections is an implicit endorsement of market economics and concurrent recognition of the problems in translating theory into practice. A judge may use or manipulate markets in affecting her decision; however, they should never become captive to them: markets are incubated and bounded by state institutions; the legal system is foremost among these.
          While it is certainly fair to say that our political system is riddled with inefficiencies that hamper its ability to address externalities in economic markets, that recognition amounts to nay-saying. Admitting the existence of externalities, who but the government will even attempt to address them? Furthermore, the unfounded association Rick makes between managing the market and price controls is far too narrow a reading. An aggressive program of internalizing social costs would serve to raise the price of most goods (if a polluter must account for his/her emissions, they will increase the price of their good to cover this additional production cost).

      To see a FedSoc Member's take on this issue, click here.

ACS v. FedSoc: Property Rights

Property Rights

     John Locke wrote of natural liberties to “life, liberty, and property,” and economists note that firm and enforced property rights are one of the most critical foundations of growing economy and functioning markets. However, there are cases in which property rights must be abridged or modified. The absolute right of a property owner to exclude all from her land and use it as she sees fit is said to be limited only to the extent that her use interferes with the protected rights of others. Once that limitation may have been clear-cut, but with an expanding scientific understanding of ecosystem interrelation and the dispersed effect of pollutants – along with the recognition of the dramatic effect of proximate land use upon property values – that maxim has become increasingly troubling to apply. There are clear cases in which environmental stewardship, the maximization of social welfare, and human health overwhelms our traditional (and constitutional) presumption that each is the king or queen of their own castle.

       It appears that my responder and I agree on an underlying point: market (read: monetary) valuations of property are often inadequate. It is an economic tautology to say that a homeowner values his land more than the market, else he would sell it. More complex and intractable is the case in which the owner and the market undervalue property, i.e. in cases where land provides vital – but nearly impossible-to-monetize – environmental or ecosystem benefits. Worries over the insufficiency of “just compensation” run quite a bit deeper than putting a dollar sign on “home, sweet home.”

      To see a FedSoc Member's take on this issue, click here.

The above represents my broad views on a few of the central contested points discussed by members of the ACS and FedSoc alike. The instant aim is to provide a backdrop for a conversation that can take place incorporating diverse viewpoints and more nuanced understanding.

CLS ACS T-Shirt Ideas

Over the next few weeks, your ideas for the Columbia Law School ACS T-shirt will be posted to this thread. Send your t-shirt ideas to abradley (at) gmail (dot) com.

Let us know in the comments which shirts you like. Design elements of the t-shirt will be finalized later — right now we're trying to find a t-shirt-worthy statement or slogan that we'd enjoy wearing.

Potential Detail for Turn Left for Rights (added 2/05/07)



Turn Left for Rights (added 2/05/07)


Potential Pocket Detail for Zombie Founders (added 2/02/07)


Least Dangerous Branch (added 2/01/07)


Bench Legislation (added 2/01/07)


Zombie Founders (added 2/01/07)


The Dirt of Justice (added 2/01/07)