In order to give context to subsequent posts about U.S. federal court decisions regarding immunity for former foreign government officials, this post will sketch some of the provisions and issues in the U.S. Foreign Sovereign Immunities Act (FSIA) of 1976.[1]
Congress in FSIA found that under “international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities.” Congress also found in FSIA that “the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts.” (28 U.S.C. § 1602.)
As a result, FSIA grants to U.S. district courts “original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title [Title 28] as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” (28 U.S.C. § 1330(a).)[2]
Under the statute a foreign state is presumptively immune unless one of the statutory exceptions applies. (28 U.S.C. § 1604.)
Some of the important exceptions to sovereign immunity are waiver (28 U.S.C. § 1605(a)(1)), commercial activity (28 U.S.C. § 1605(a)(2)), noncommercial tort (28 U.S.C. § 1605(a)(5)) and state-sponsored terrorism (28 U.S.C. § 1605(a)(7).[3]
For the purposes of this statute, a “foreign state” is defined to include “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” (28 U.S.C. § 1603(a).) The term “agency or instrumentality of a foreign state” in turn is defined in section 1603(b) as “any entity–
(1) which is a separate legal person, corporate or otherwise; and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332 (c )and (d) of this title [Title 28], nor created under the laws of any third country.”
[1] See generally David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 1001-14 (4th ed. 2009); Wikipedia, Foreign Sovereign Immunities Act.
[2] Prior to FSIA, questions of such immunity were determined primarily by the Executive Branch, which were generally followed without question by the courts.
[3] An earlier post looked at a U.S. Court of Appeals for the Second Circuit case regarding the exception for noncommercial tort.
A prior post reviewed the Minneapolis Public Schools (MPS) desegregation/integration litigation from 1971 through 1977 while another post looked at that case from 1978 through 1983.
During this entire period the MPS had significant numbers of African-American and Native American students, and the U.S. District Court in Minneapolis attempted to recognize the different interests of these two groups by its May 1975 adoption of a two-tier formula for determining compliance with the court’s order for the desegregation/integration of the schools. At that time the court modified its order to require that no school could have more than 42% total minority enrollment and no more than 35% of a single minority group.
The issue of the impact of the court’s orders on Native American students came to the forefront in May 1978 in connection with a MPS semiannual report to the court requesting approval of a variance of up to 60% total minority enrollment for schools with heavy concentrations of Native American students.
Such a variance had been sought by Native American parents so that their children would not be forced to leave the new Andersen Elementary School in the southern part of the city, and a group of those parents appeared as amici curiae (friends of the court) in connection with the court hearing on that MPS semiannual report. Their attorney, Larry Leventhal, raised the legal argument that the 14th amendment’s equal protection clause did not prohibit such a variance because of the U.S. Supreme Court’s recognition that Native Americans have a unique status in U.S. law derived from their tribal quasi-sovereignty.
As part of the MPS evidence supporting this variance, I put on the witness stand a MPS employee who was responsible for creating curricular materials that featured contemporary Native Americans who were successful in the broader culture. He was of Ogibwe heritage and testified to his being “a well-balanced schizophrenic” because he had one foot in his native culture and the other foot in the dominant culture.
Nevertheless, the court in May 1978 denied the MPS request for approval of this variance for Native American students. The court said it was “sensitive to the concerns of the School Board and amici that the special educational needs of Native American students be met and that concentration of [such] pupils may be helpful to the expenditure of [special federal educational funds].” The court also acknowledged that the Supreme Court had in certain cases allowed separate treatment of Indians, but distinguished those cases on the ground that the MPS proposed variance was not tied to tribal membership or any quasi-sovereign interests of particular tribes or reservations.[1]
The Eighth Circuit affirmed this ruling. It acknowledged that “in certain contexts separate classification and treatment of Indians as a race are constitutionally permissible in the light of the unique status of Indians in this country, and in light of history and policy.” This statement, however, was subject to this important qualification by the appellate court: “the Supreme Court has not held that a school district is exempt from its obligation to eliminate racial segregation ‘root and branch’ . . . simply because the district’s student population contains a substantial number of Indian students with specialized educational needs.” Moreover, the Eighth Circuit upheld Judge Larson’s finding that these legitimate needs had been met by the district court’s past 35/42% and prospective 39/46% guidelines.[2]
When the MPS asked the U.S. Supreme Court to review the case, its final argument was that the lower courts erroneously had determined important and federal statutory issues regarding the education of American Indian children.[3] The Supreme Court, however, denied review.[4]
[1]Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). This order also denied the MPS motion to terminate the case that was discussed in a prior post.
As described in a prior post, from 1971 through 1977, the Minneapolis Public Schools (MPS) were subject to an order to desegregate/integrate its schools and to semiannual court and, therefore, public scrutiny of its compliance with that order. This was an order by Minnesota’s U.S. District Court. (To the left is a photo of the Minneapolis Federal Office Building and U.S. Courthouse, 100 4th Street South, that was the site of this entire litigation. Today it is the Hennepin County Family Justice Center.)
In or about 1978 the MPS School Board, frustrated by the continued bad publicity generated by the case, decided to hire me as its outside attorney for the case with the objective of having the court end the litigation on the ground that the MPS had done everything that a federal court legitimately could require it to do.[1]
The first such effort was unsuccessful.
In early 1978 I filed a MPS motion to terminate the litigation that was based on the then recent U.S. Supreme Court decision in Dayton v. Brinkman, 433 U.S. 406 (1977) that held the permissible court injunction in the Dayton, Ohio school desegregation case was limited to eliminating the “incremental segregative effect” of its constitutional violations.
The Minnesota court, however, distinguished the Dayton case and denied the MPS motion on the ground that it had not yet fully implemented its desegregation/integration plan. The court also rejected a MPS proposal to address concerns of the Native American community that will be explored in a subsequent post. [2]
In addition, the court in its May 1978 order rejected the MPS request to increase the allowable maximum minority enrollment in each school to 50% and to eliminate the single minority ceiling requirement. The court did say it had “never regarded the percentage figures [in its orders] as rigid requirements” and that it had set the percentage “guidelines at approximately 20% above the projected total minority student population.” The court then went on to modify its injunction to increase the maximum total minority student of each school to 46% (an increase of 4%) and a single minority’s maximum percentage to 39%(also an increase of 4%).
The MPS then took its only appeal in the 12 years of this litigation. But the U.S. Court of Appeals for the Eighth Circuit held that that the district court had not abused its discretion in denying the motion to terminate the case. The appellate court, therefore, affirmed the district court’s decision[3]
The MPS then made its only application to the U.S. Supreme Court to review the case. Two of the petition’s three arguments for such review were that the decisions in the lower courts conflicted with, and misapplied (1) the Supreme Court’s holding that desegregation decrees must be limited to eliminating incremental segregative effect of constitutional violations; and (2) that Court’s allowing modification of desegregation decrees where new circumstances of law or fact had arisen.[4]
The second and third efforts to end the case also were unsuccessful.[6]
The fourth motion to terminate the injunction and end the case, however, was granted by Judge Larson on June 8, 1983.[7] The court did so despite opposition by the plaintiffs, who later decided through their attorney, Charles Quaintance, Jr., not to seek a rehearing in the district court or an appeal to the Eighth Circuit.[8]
Dr. Richard Green
Afterwards the MPS Superintendent Richard Green said the decision was “a major moment in the history of the district” and that the MPS would “continue to work with the state department of education [with respect to its desegregation regulations] to show the good faith that was demonstrated by the court.” Green also said the court order had “created a climate for change in the school system that led to better-quality schools.” He specifically mentioned the change from neighborhood schools to ones that drew students from many parts of the city; the increase in student busing; and the creation of alternative programs, including “magnet” schools.[9]
Dr. Green wrote a personal note to me about the end of the litigation. He said, “Without question, the Minneapolis community has now met one of the major tests for equality, and my sense is that your leadership has been a crucial factor.”[10]
I certainly appreciated that kind compliment even though I thought it was unjustified. The successful desegregation/integration of the MPS was due to the efforts of many students, parents, teachers and administrators and of the School Board. The leadership of Dr. Green was the crucial ingredient, and his skills were recognized in 1988 when he became the Chancellor of the New York City Public Schools, the first African-American to hold that position.
I was very saddened when Dr. Green died of asthma in 1989 at the age of 53 after only 14 months as Chancellor.[11] He was honored by a memorial service at the Cathedral of Saint John the Divine in Manhattan with a eulogy by then New York City Mayor Edward Koch.
Being the lawyer for the MPS in this litigation obviously was an important professional and civic responsibility and challenge. The MPS was committed to desegregation/integration and to respect for the law and the court’s orders, and yet it wanted to terminate the case. I personally shared these values and commitments and drew inspiration from these words of Learned Hand, one of the preeminent jurists in U.S. history:
“[A] society so riven that the spirit of moderation is gone, no court can save; . . . a society where that sprit flourishes, no court need save; . . . in a society which evades its responsibility by thrusting upon the courts the nuture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens . . . which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a temper and such a faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature . . . . [They] must have the vigor within themselves to withstand the winds and weather of an indifferent and ruthless world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived. Words will not express them; arguments will not clarify them; decisions will not maintain them. They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”[12]
[1] I have donated my papers relating to this case to the Minnesota Historical Society Libray, St. Paul, Minnesota.
[2]Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). Four months later, in another case In which I represented the MPS, the same district court granted judgment for the MPS in a challenge to the constitutionality of the MPS decision to close Longfellow School in the southern part of the city. (Hernandez v. Special School Dist. No. 1, No, 4-78-349 (D. Minn. Sept. 13, 1978).)
[4] Petition for Writ of Certiorari, Special School District No. 1 v. Booker (No. 78-__ Sup. Ct. Nov. 10, 1978). The third reason for review relating to the issues regarding Native Americans that will be reviewed in a subsequent post.
[5]Booker v. Special School District No. 1, 433 U.S. 915 (1979).
[6] Memo Order, Booker v. Special School District No. 1, (D. Minn. May 1, 1980); Memo Order, Booker v. Special School District No. 1, (D. Minn. June 22, 1982). On December 17, 1982 after a semiannual MPS report had been submitted to the court, the MPS Superintendent Richard R. Green sent me a note thanking me on behalf of “the entire School District and community” for my “contribution” in helping the MPS to report total compliance with the court order.
[7] Memo Order, Booker v. Special School District No. 1, (D. Minn. June 8, 1983).
[8] During the five years of my representation of the MPS in this case, Quaintance and I were professional adversaries without any other relationship. In recent years, however, as fellow members of Minneapolis’ Westminster Presbyterian Church, we have become friends.
[9] Paulu, Judge Larson ends court jurisdiction in city public schools’ desegregation, Mpls. Star & Trib. (June 9, 1983); Pinney, Case kept desegregation effort aimed toward stability, Mpls. Star & Trib. (June 9, 1983).
[10] Letter, Dr. Richard R. Green to Duane Krohnke (June 16, 1983).
[11] A park in Brooklyn, New York was named in his honor.
[12] Learned Hand, The Sprit of Liberty, at 164-65 (3d ed.; Univ. Chicago Press; Chicago 1977).
Two recent developments implicitly have endorsed my strong suggestion for the U.S. to rescind its designation of Cuba as a “State Sponsor of Terrorism” and to seek reconciliation with Cuba.
Colombia-FARC Negotiations
President Juan Manuel Santos
Over the last week the President of Colombia, Juan Manuel Santos, has announced that this October his government will enter into new negotiations with the Revolutionary Armed Forces of Colombia (FARC) seeking to end their long civil war.
Santos said that holding such talks is well worth the risk of failure because an end to the conflict would not only would end bloodletting, but also bring a “peace dividend” of up to 2% additional economic growth a year to the country’s economy.
The initial negotiations will take place in Norway and then move to Havana, Cuba. The President said that support for such negotiations by Venezuela and Cuba has been crucial in helping the two sides to reach agreement on conducting the negotiations.
Cuba’s role in this positive development for Colombia and the whole western hemisphere shows the absurdity of the U.S. designation of Cuba as a “State Sponsor of Terrorism” on the ground, in part, that some members of the FARC have been living in Cuba.
Former President Carter Calls for Improved U.S.- Cuba Relations
Jimmy Carter
On September 6th, former President Jimmy Carter said the next U.S. president should act forcefully to improve relations with Cuba. He also called for Cuba to be removed from the U.S. State Department’s list of state sponsors of terrorism.
In the winter of 1970-71 under the leadership of Superintendent Dr. John B. Davis, Jr.,[1] the School Board of the Minneapolis Public Schools (MPS) decided, 6 to 1, to adopt a general commitment to racial desegregation and its first mandatory desegregation step: the pairing of Field and Hale Elementary Schools on the south side of the city.[2]
The local chapter of the National Association for the Advancement of Colored People (NAACP) and some citizens, however, were concerned about the long-term commitment to this effort and the possible election of a school board that would be opposed to such measures. Therefore, in August 1971 the NAACP and others started a federal lawsuit alleging the racial imbalance in the schools was due to intentional acts of the MPS.
Judge Earl Larson
The case went to trial in April 1972 before U.S. District Judge Earl Larson of Minnesota’s federal district court, and on the last day of the trial (April 25, 1972) the School Board adopted a widespread Desegregation/Integration Plan.
A month later (May 24, 1972), the court decided that the MPS were segregated on the basis of race and that such segregation resulted from the following intentional acts of the MPS: (1) the construction, size and location of Bethune School ; (2) the addition of seven new classrooms to Field Elementary School in 1964; (3) the 1967 construction of an addition to Washburn High School; (4) the location of portable classrooms; (5) decisions over school size; (6) the 1968 change in boundaries between Washburn and Southwest High Schools; (7) the policy of allowing special transfers of students;(8) the creation of optional attendance zones along the perimeters of racial minority neighborhoods; and (9) the practice of assigning and transferring teachers and administrators.[iii]
The court, therefore, concluded that the MPS had violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and permanently enjoined the MPS, “its school board, its administrators, its employees, its agents, and all those who are in active concert or participation with them . . . from discriminating on the basis of race or national origin” in its operation.
The court further ordered MPS to “take affirmative action to disestablish school segregation and eliminate the effects of its prior unlawful activities.” More specifically the court ordered MPS to implement its own Plan for Desegregation/Integration with the following modifications: (a) no more than 35% of the study body of any one school could be minority children; (b) increase faculty integration; (c) not allow any student transfers that increase the segregated nature of either school; (d) submission of any plans for new schools or additions to old schools to the court for prior approval; and (e) submission of any changes to the Desegregation/Integration Plan to the court for prior approval.
Finally to monitor MPS’ compliance with the court order, the MPS was required to submit semi-annual reports to plaintiff’s’ counsel and to the court.
In May 1975 the court modified the injunction to change the maximum permissible minority enrollment in any school to 42% total minority and 35% of any single minority group.[4]
In July 1977 the court found that MPS had fully complied with the injunction except for racial balance at several schools, but it denied the MPS motion to terminate the case.
The litigation continued until June 1983, and the latter phase of the litigation (1978-1983) will be covered in a subsequent post.
The plaintiffs’ lawyer was Charles Quaintance, Jr. The defendants were represented by Norman Newhall and Gerald Bergfalk.
My family and I had moved to Minneapolis in the Spring of 1970, and I had no involvement as an attorney in the early phase of this case.
In 1971, however, as a citizen and as a parent of two sons who would be going to the MPS, I was shocked to read that the two new members of the city’s School Board were opposed to further desegregation/integration, and at least one of them in campaigning had talked about resisting any federal court order. As a result, over the next seven years I became very active in various activities relating to the public schools in Minneapolis and elsewhere in Minnesota.
In the next local election in 1973 I was very active in Citizens United for Responsible Education (CURE), a successful bipartisan coalition to elect two moderate candidates to the School Board. I went on to become active in other public education projects: Member of the Citizens League Study Committee on Fluctuating School Enrollments; Member (by gubernatorial appointment) of the State of Minnesota Commission on Fluctuating School Enrollments; Member of the Board of Directors of the Minneapolis Citizens Committee on Public Education; unsuccessful candidate for appointment to fill a vacancy on the Minneapolis School Board; and Chairman of the MPS Citizens’ Advisory Committee on School Finance.
This civic experience would turn out to be very useful for me in the next phase of the litigation.
[1] Davis subsequently became the President of Macalester College in St. Paul, Minnesota.
[2] Pinney, Case kept desegregation effort aimed toward stability, Mpls. Star & Trib. (June 9, 1983).
[iii]Booker v. Special School District No. 1, 351 F. Supp. 799 (D. Minn. 1972).
[4] Memo Order, Booker v. Special School District No. 1, (D. Minn. May 7, 1975).
Westminster‘s September 2nd worship service opened with a jazzy set of three organ preludes entitled “Organ, Timbrel, and Dance,” played by Melanie Ohnstad, the church’s Organist and Director of Music and the Arts.
The three preludes were based on German chorales as reinterpreted in jazz idioms. As a lover of German organ music and American and Latin jazz, I was fascinated and moved by the three pieces:
“Swing Five” used the rhythms of Dave Brubeck’s “Take Five” for the chorale “Erhalt uns, Herr” (Lord, Keep Us Steadfast).
“Bossa Nova,” the Brazilian rhythms for “Wunderbarer Konig” (Wonderful King).
“Afro-Cuban,” the rhythms and melody of Leonard Bernstein’s “America” from West Side Story for “In dir ist Freude” (In Thee Is Gladness).
Johannes Matthias Michel
The composer is Johannes Matthias Michel, who was born in 1962 and grew up at Lake Constance (Germany) and who studied piano, church music, and organ in Basel, Heidelberg, Frankfurt and Stuttgart. He has composed many pieces for organ, and his organ discography includes more than a dozen CD recordings. One is of these three preludes, and there is a YouTube video of Michel playing these preludes.
Michel teaches artistic and liturgical organ playing at the University for Church Music of the Protestant Regional Church in Baden (Hochschule fur Kirchenmusik Heidelberg). Affiliated with the Evangelical Lutheran Church, the University is in the city of Heidelberg in the historical region of Baden on the east bank of the Rhine River. Baden is the western part of the Baden-Wurttemberg state of Germany.
Christuskirche, Mannheim
Since 1999 he also has been the director of music at Christuskirche in Mannheim, which also is located in Baden. This is a Protestant church in the Oststadt district of the city. The church’s building was built in the early 20th century in the Art Nouveau style with Neo-Baroque accents. It escaped major damage in World War II. At Mannheim Michel also conducts the Bachchoir Mannheim and the chamber choir Mannheim and teaches organ at the State Academy of Music (Staatlichen Hochschule für Musik) in Mannheim.
Melanie Ohnstad
Melanie Ohnstad has served Westminster as organist since November 1995. She received the Doctor of Musical Arts degree from the University of Minnesota. She also holds the Master of Music in Organ Performance degree from Arizona State University and the Bachelor of Music degree from St. Olaf College.
A streaming video of the Westminster worship service is available on the web so you too can hear this amazing set.
On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”
These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.
Tony Blair
Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”
However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.
That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:
The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.[1]
Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
There was no information that the Coalition forces had an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).
Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.[2]
[1] As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.
[2] There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.
A prior post has discussed the new book by U.S. Supreme Court Associate Justice Antonin Scalia and Bryan A. Garner – Reading Law: The Interpretation of Legal Texts. It discusses principles or canons of statutory and constitutional construction, including the Justice’s frequently proclaimed theory or canon: “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.[1]
Posner’s Criticism
Judge Posner
Now Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School (my alma mater), pens a blistering criticism of this theory and the book under the title “The Incoherence of Antonin Scalia.”
According to Posner, Scalia is the defender of the purported passive judicial role. Such judges and defenders say that all such judges do “when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.”
Such a claim, says Posner, is nonsense. It does not effectuate legislative intent. Instead it “hobbles legislation.” As Posner sees it, a “legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text.” All legislatures have understandable “limitations of foresight,” and “the fact that a statute is a collective product . . . often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers.”
Moreover, Posner says, “The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”
Chief Judge Easterbrook
Posner endorses the views of Frank Easterbrook, his fellow Seventh Circuit and University of Chicago Law School colleague. Easterbrook says, in the forward to the Scalia and Garner book no less,“Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.”
When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” In those circumstances, Easterbook adds, “the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint.
Posner also has a detailed exposition of inconsistencies and errors in the analysis of Scalia and Garner.
Retort to Posner’s Criticism
Ed Whelan
Posner’s criticism was immediately attacked by Ed Whelan (Martin Edward Whelan, III), a former Scalia law clerk, an attorney and the President of the Ethics and Public Policy Center, in a post to the National Review Online entitled “Richard A. Posner’s Badly Confused Attack on Scalia/Garner.”
He asserts that Posner’s analysis “is remarkably slipshod and untrustworthy.”
In this post he has three major points.
First, he believes that Posner “misunderstands the relationship between Scalia and Garner’s defense of original-meaning textualism, on the one hand, and their elaboration of interpretive canons, and of selected cases applying particular canons, on the other.”
Second, “Posner’s broader attack on textual originalism . . . is replete with errors and distortions.” According to Whelan, Scalia and Garner, for example, clearly recognize and endorse the use of legislative history for the purpose of establishing linguistic usage.
Third, Posner criticized Scalia and Garner’s emphasis on using dictionaries in construing legal texts, but, says Whelan, Posner fails to take into account Scalia and Garner’s appendix titled “A Note on the Use of Dictionaries.” There they point out the dangers in “an uncritical approach to dictionaries” and enunciate“primary principles to remember in using dictionaries.”
Conclusion
This does not really end the discussion. Whelan promises additional posts in his criticism of Posner. I am also sure we have not heard the last from Judge Posner on these issues.
[1] Another post and two comments thereto examined other reviews of the Scalia and Bryan book.
