Paul Horwitz writes:
> In any event, to politely take Prof. Barksdale's posting as an example, it
> seems the more broadly fact-oriented these posts get, as opposed to a narrow
> focus on immediately relevant and falsifiable facts, the more the discussion
> runs the risk of becoming question-begging or unresolvable.
>
Hi
I am not sure what you mean by "immediately relevant and falsifiable facts" unless you
mean the narrow "facts of the case" - ie., the adjudicative facts that give rise to a
particular controversy. Such adjudicative facts present the legal issue to be decided,
but they are not the only legally (certainly constitutionally) relevant facts. Broader
"legislative and policymaking" facts are relevant to deciding how the constitution
should be interpreted, including, at a minimum, the structural and consequences of the
particular interpretations, and more broadly (for people who think these consequences
are relevant) the "real life implications" of particular constitutional results. To
exclude these facts from discussion on a con-law list is to shut down a substantial
part of debate about what con law should be.
As to your specific objections to my post: I agree as to the first (democratic
electiosn vs legitimacy), in part. The remainder I disagree with entirely.
First, you write:
"whether the President was or was not "democratically elected" begs the
> underlying jurisprudential question: is a President elected by an election
> process that includes recourse to the courts a "democratically elected"
> President? It's not clear to me that "democratic" has enough content to
> distinguish it from "legitimate."
>
I agree with you that my focus on "democratically elected" rather than legitimacy was
loose particularly as I seemed to limit "democratically elected" limited to
consistency with the wishes of the "majority of the voters [who] tried to vote."
Obviously, "trying to vote" is not the same as legally voting. And, to the extent
that courts are part of the process for determining legal votes, the President who
takes office pursuant to such a process, is, as a general proposition, legitimately
elected
But that does not mean that the democratic validity of the election process is
irrelevant to its legitimacy, as long as the results were sanctified by a Court,
regardless of how off-the-merits the grounds.
For example, the Florida Bush electors were illegally selected under Florida law as
interpreted by the Florida Supreme Court. Nevertheless, they were sent to the
Electoral College not because the Supreme Court decided they were legally selected,
but because the Supreme Court time-barred the Florida Supreme Court from fashioning a
remedy for the illegal selection by 1) invalidating the Florida Supreme Court's own
remedy on equal protection grounds, and 2) giving the FLorida Court less than 24 hours
to come up with a substitute remedy, pursuant to rigid factfinding requirements which
obviously could not be satisfied without extensive hearings. Accordingly, Florida
votes determined Florida electors even though the votes were not legally counted in
accordance with Florida election law. (There were provisions for state legislative
election of electors - but these weren't used).
Now, the Supreme Court obviously had its reasons for its decision, and, again, I am
not trying to debate the reasonableness of that decision. But, it is not irrational to
argue that Florida voters were disenfranchised, as a result, and that Bush was not
"democratically elected," in the sense that his margin of victory in the Electoral
College came from remedial time limits imposed by the Supreme Court rather than from a
decision on the merits of the legality of the votes.
Now, one may disagree about whether this undemocratic backdoor to office should be
relevant to the standard for impeachment. But I hardly think the question is
immaterial or unresolvable. Protection of democratic election processes was a
paramount concern underlying the impeachment clause. If you look at the Convention
debates over the clause, one of its key purposes was to protect the democratic process
for Presidential election by permitting removal of a President who had been improperly
elected, e.g., through bribery, without the clause itself undermining democratic
processes through use a political weapon by the opposition. Accordingly, I don't think
it is "question begging" to question whether concerns about the democratic legitimacy
of a President should be relevant to how broadly or narrowly one interprets
impeachment standards. For example, should a President elected by an overwhelming
margin get more of the benefit of the doubt than one elected by slimmer ones? O!
f course, one could disagree. But I hardly think the question is issue is off the
point and immaterial.
You also write:
> Similarly, once the political nature of impeachment is assumed, any
> discussion of the strength or weakness of the Administration's claims about
> WMDs, the strength or weakness of its arguments for military intervention,
> and whether any errors or omission were willful seems off-list in the sense
> that there is no sticky question calling for lawyers' skills, let alone
> constitutional lawyers' skills.
>
Okay, this position would have shut down 95% of this list's discussion of the Clinton
Impeachment, the BUsh v. Gore electoral process, the 9/11 aftermath, etc. all of
which involved con law questions with heavy political implications, which were
ultimately to decided by heavily political processes. But the discussion was still
about constitutional law because the political debate was about con law and the
political actors were ultimately to decide con law questions. Political considerations
influenced their decisionmaking, but they did not change the underlying nature of the
questions as con law questions within the bailiwick of Con law professors.
Obviously, the underlying facts have to be as intrinsically part of the analysis -
for con law profs, even more so than for polticians. How can you give any reasonble
advice unless you know what the facts are? (And the facts you refer to (Bush's state
of knowledge,etc. ) seem to be precisely those "immediate and falsifiable facts" you
argue should be part of the debate.)
Of course, I suppose posters could proceed in the hypothetical as in
"If the facts are X1, X2......Xn (where n is the total number of conceivable
factual scenarios), then for each Xn, this is what I think would be the correct
constitutional outcome."
But isn't it easier to just say "What are the facts" - okay now what ought to be the
constitutional outcome?
yb
*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:) [EMAIL PROTECTED]
*****************************************************
> ----------
> From: Horwitz, Paul[SMTP:[EMAIL PROTECTED]
> Reply To: Discussion list for con law professors
> Sent: Monday, June 09, 2003 1:07 PM
> To: [EMAIL PROTECTED]
> Subject: Facts vs. law
>
> A propos of Allan Ides' post, I didn't take Eugene to be arguing that a
> strong distinction lies between constitutional law and the relevant
> underlying facts. I agree with Allan (and Judge Posner) that no such
> distinction can be clearly drawn, but I took Eugene's point to be narrower
> than that -- simply a suggestion that the more disconnected the factual
> discussion becomes from the legal discussion, the more likely it is that the
> discussion will be either inexpert or unhelpful (not to mention partisan).
> Particularly with regard to the question of lack of factual expertise, I
> would think that suggestion is squarely in line with Posner's own views.
>
> In any event, to politely take Prof. Barksdale's posting as an example, it>
> seems the more broadly fact-oriented these posts get, as opposed to a narrow
> focus on immediately relevant and falsifiable facts, the more the discussion
> runs the risk of becoming question-begging or unresolvable. For instance:
>
> -- whether the President was or was not "democratically elected" begs the
> underlying jurisprudential question: is a President elected by an election
> process that includes recourse to the courts a "democratically elected"
> President? It's not clear to me that "democratic" has enough content to
> distinguish it from "legitimate." All the passion that has been or could be
> expended on the list on the facts of the election can't, it seems to me,
> elicit a meaningful response to this legal/philosophical question.
>
> -- whether or not impeachment is an inherently political process (I would
> say it is a somewhat artificially constrained but political process) is a
> fair topic for debate. But if the purely political nature of the
> impeachment process is assumed arguendo, what can constitutional law
> teachers contribute to the remaining discussion, which will be a series of
> politically informed debates about the truth or relevance of various
> underlying facts? Nothing more or less than millworkers, bartenders, Sean
> Wilentz, or anyone else, as far as I can see.
>
> -- Similarly, once the political nature of impeachment is assumed, any
> discussion of the strength or weakness of the Administration's claims about
> WMDs, the strength or weakness of its arguments for military intervention,
> and whether any errors or omission were willful seems off-list in the sense
> that there is no sticky question calling for lawyers' skills, let alone
> constitutional lawyers' skills.
>
> Of course, many more narrowly factual discussions may still yield light on
> constitutional debates. Moreover, one can in in any event contest the idea
> that impeachment is inherently political, or at least cabin the discussion
> by asking whether a false statement by the administration would violate
> federal law, whether it would be justiciable, and/or whether that violation
> would be impeachable.
>
> I should note that I take no position on any of the underlying factual
> issues presented above or in earlier posts. I do admit to the more
> prudential, but distinctly constitutional view, that a constitution that did
> not allow politicians, at least in a range of potential instances, to be
> dishonest, disingenuous, or manipulative without the automatic intervention
> of the legal system would not be a very practicable one. Whatever the outer
> scope of that freedom should be, the remedy for such behavior should
> generally be electoral, not legal.
>
> Paul Horwitz
> Visiting Lecturer, Univ. of Iowa School of Law
>
