I apologize for the tardy response; I'm teaching a summer course and there's
not enough time in the day. I don't generally favor endless threads of cut
and parry, but thought a brief and partial response to Prof. Barksdale's
quite reasonable post was warranted.
I don't disagree with Prof. Barksdale that potentially relevant facts for
discussion about constitutional law issues include a wide range of facts,
not simply "adjudicative facts." I could hardly cite Posner without
agreeing that considering the consequences is a relevant part of
constitutional (or any other kind of) adjudication or discussion. My
concern was with the degree to which factual assertions and debates, many
aspects of which are far beyond the province of expertise brought (as a
general matter) by participants to this discussion list, tend to shed more
heat than light as they move further away from more narrow legal points.
Prof. Barksdale's response, reproduced below, I think illustrates that point
to some degree. My initial argument was that calling the 2000 election
"undemocratic" was question-begging in that, as a factual assertion, it was
unhelpful and controversial; ultimately, it simply called into question the
underlying legal basis for such a statement. Having begged the question,
Prof. Barksdale provides a lengthy and strong answer below, dwelling (as she
did not before) on specific grounds, all drawn from the litigation of the
election dispute, for calling the election undemocratic. But that answer is
based on precisely the kind of narrower, case-specific, "adjudicative" facts
that her initial post was not.
As for whether my rule of thumb (facts, yes, but the more controverted they
are the more they ought to be clearly tied to the immediate discussion)
would have eliminated 95% of the list discussion about the impeachment, the
election, etc., I was not here for all of that discussion and so cannot
respond; others with longer memories will have to decide for themselves how
much of those discussions was wheat and how much was chaff.
I think Prof. Barksdake raises interesting questions in noting that many
recent political discussions have had constitutional law overtones. I am
not convinced it's been the right marriage: it leads to politicians clothing
what ought to be political views in constitutional rhetoric (on which see
Klarman's Va. L. Rev. article), and constitutionalists holding nominally
constitutional discussions that are often really and merely political
debates.
Reasonable people may differ on the value of such discussions. But I am
skeptical that saying "what are the facts" about, say, WMDs (let alone, as
usually happens, baldly asserting "these are the facts") will usually shed
much light.
PH
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]
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