Government lawyers, democracy, and the rule of law

Fordham Law Review

Volumn 77, Issue 4, 2009, Pages 1333-1362

  Wendel, W Bradley ^a  

^a Department of Obstetrics Gynecology   (United States)

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EID: 65149103328     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (191)

1. See Tony Mauro, Justice Department's Independence "Shattered," Says Former DOJ Attorney, LEGAL TIMES, Apr. 16, 2007, http://www.law.com/jsp/article.jsp?icH 11764 55062969.
2. For a typical attack on the George W. Bush administration, see John S. Koppel, Op-Ed., Bush Justice Is a National Disgrace, DENVER POST, July 9, 2007, at IE (DOJ civil appellate attorney lambasting episodes of "politiciz[ation]," including the pardon of Scooter Libby, the abuse of warrantless surveillance, and the firing of U.S. Attorneys).
3. The American Presidency Project, Republican Party Platform of 2000, http://www.presidency.ucsb.edu/ws/index.php?pid=25849 (last visited Feb. 4, 2008). Ted Olson - who was then former Reagan administration Office of Legal Counsel head, and subsequently would serve as President George W. Bush's Solicitor General - also excoriated the politicization of the Clinton DOJ, including the FBI investigation of the White House travel office and alleged interference with the investigation of the death of Vince Foster. See Theodore B. Olson, Politicizing the Justice Department, in THE RULE OF LAW IN THE WAKE OF CLINTON 151, 252 (Roger Pilon ed., 2000).
4. See Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. Rev. 1303,1308 (2000).
5. See Gerald R. Ford, In Memoriam: Edward H. Levi, 67 U. CHI. L. REV. 975, 975 (2000).
6. I do not mean that we cannot identify blatant examples of political inference with what should be an impartial process of decision making. For example, Colonel Morris Davis, the former chief prosecutor in the military commissions at Guantánamo Bay, resigned after being placed under the command of William J. Haynes, the civilian general counsel of the Department of Defense, who had previously indicated that acquittals in the commission hearings would be intolerable. When Colonel Davis noted there had been acquittals at Nuremberg, Haynes responded, "If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions." See Ross Turtle, Rigged Trials at Gitmo, NATION, Feb. 20, 2008, at 4, 4;
7. see also Morris D. Davis, AWOL Military Justice, L.A. TIMES, Dec. 10, 2007, at A15;
8. William Glaberson, ExGuantanamo Prosecutor to Testify for Detainee, N.Y. TIMES, Feb. 28, 2008, at A18. If the concept of politicized decision making means anything, this must be an instance of it. The problem I want to pursue in this essay is that in interesting cases, not involving the exercise of raw coercive power and obvious rigging of procedures, we do not have a promising way to theorize the notion of politicization.
9. See, e.g., Steven G. Calabresi, The President, the Supreme Court, and the Constitution: A Brief Positive Account of the Role of Government Lawyers in the Development of Constitutional Law, LAW & CONTEMP. PROBS., Winter 1998, at 61, 66 ("American Presidents must, as a practical matter, have some kind of program for the Supreme Court and for the legal system as a whole.... [A]ll Presidents must, as a political matter, have some goals in mind while staffing the legal positions in their administrations . . .")
10. See, e.g., Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1194-95 (2006) ("[P]olitics has an entirely appropriate role in the executive branch. By politics, I mean discretionary considerations of policy and even ideology, as opposed to the mandatory ... constraints of legal rules.").
11. U.S. CONST. art. II, § 1.
12. Id. art. VI.
13. I am talking about federal government officials here, and will analyze issues of federal government lawyers' ethics throughout this essay, but the same analysis applies at the state level as well.
14. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1500-01, 1509, 1527 (1988).
15. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 270-76 (1980);
16. LON L. FULLER, THE MORALITY OF LAW 33-91 (2d ed. 1969);
17. F. A. HAAYEK, THE ROAD TO SERFDOM 76 (1944);
18. JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 210, 213 (1979). A few modern critics question this formal conception of the rule of law and argue that a system of norms must satisfy some substantive criteria, such as adequately protecting human rights, to be worthy of the label "law." See, e.g., RONALD DWORKIN, Political Judges and the Rule of Law, in A MATTER OF PRINCIPLE 9 (1985);
19. Lord Bingham, The Rule of Law, 66 CAMBRIDGE L.J. 67 (2007).
20. See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
21. MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999);
22. JEREMY WALDRON, LAW AND DISAGREEMENT (1999).
23. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994);
24. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1994);
25. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105
26. HARV. L. REV. 1153 (1992);
27. Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, LAW & CONTEMP. PROBS., Summer 2004, at 105;
28. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001);
29. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94
30. COLUM. L. REV. 1 (1994);
31. Geoffrey P. Miller, The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 CARDOZO L. REV. 201 (1993);
32. Cornelia T. L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103
33. MICH. L. REV. 676 (2005);
34. Saikrishna B. Prakash, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 YALE L.J. 991 (1993). By comparison, less scholarly attention has been devoted to the issue of legislative constitutional interpretation.
35. For an important recent contribution to this area, see the essays collected in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE C ONSTITUTIONAL STATE (Richard W. Bauman & Tsvi Kahana eds., 2006).
36. The relevant lawyers under consideration here are acting in an advisory capacity - rendering legal opinions on the permissibility of government action, or even helping to design and execute government policy. Lawyers acting as counselors are, in effect, lawgivers with respect to an action, except in the event the action is made the subject of a litigated dispute. By contrast, government lawyers in litigation contexts have more latitude to urge creative or aggressive interpretations of law. The obligation of lawyers representing clients (including public agencies) in litigated matters is still fundamentally to exercise fidelity to law, but the law in that case includes procedural entitlements and rules of evidence that enable lawyers to place more reliance on adversarial procedures, rather than their own beliefs about what the law permits. Litigation advocacy can be seen as an indirect strategy for ensuring fidelity to law, while advising and transactional representation requires a more direct strategy.
37. For claims that the law must be ideologically neutral in order to be legitimate, see, for example, ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS 66-67 (1976) (criticizing liberalism for being unable to solve the problem of arbitrariness, in the sense that any legal restriction placed on the ability of one person to satisfy her desires will necessarily benefit some individuals more than others).
38. Cf. Owen Fiss, The Death of the Law?, 72 CORNELL L. REV. 1 (1986) (distinguishing politics, which is about "mere" preferences, from adjudication, which is aimed at applying, or even creating, public values).
39. See JOSEPH RAZ, THE MORALITY OF FREEDOM 42, 48, 58-61 (1986).
40. See FINNIS, supra note 13, at 136, 317-18 ("[T]he complexity of human community . . . is often lost sight of by those who attempt to explain one order of reality using exclusively techniques of analysis suitable for another order. . . . [T]he formulae expressive of legal obligation ... fit into and give a special conclusory force to the practical reasonings of those who see and are generally willing to act upon the need (for the common good) for authority.").
41. See, e.g., BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980);
42. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996);
43. Frank I. Michelman, The Supreme Court, 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986).
44. For the background on the warrantless wiretapping program, the Foreign Intelligence Surveillance Act, and the executive-power controversy, see Barton Gellman & Jo Becker, 'A Different Understanding with the President,' WASH. POST, June 24, 2007, at A1;
45. Barton Gellman & Jo Becker, Pushing the Envelope on Presidential Power, WASH. POST, June 25, 2007, at A1;
46. Carol D. Leonnig & Dafna Linzer, Judges on Surveillance Court to Be Briefed on Spy Program, WASH. POST, Dec. 22, 2005, at A1;
47. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1;
48. Michael J. Sniffen, Ex-Surveillance Judge Criticizes Warrantless Taps, WASH. POST, June 24, 2007, at A7;
49. Suzanne E. Spaulding, Power Play: Did Bush Roll Past the Legal Stop Signs?, WASH. POST, Dec. 25, 2005, at B1.
50. A great deal of this reporting is recounted in ERIC LICHTBLAU, BUSH'S LAW: THE REMAKING OF AMERICAN JUSTICE (2008).
51. Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. § 1801 (2000)).
52. The Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 (Supp. V 2005)). The AUMF provides, [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
53. Id. The Justice Department's arguments were summarized in a letter to the ranking majority and minority members of the House and Senate Intelligence Committees following disclosure of the warrantless wiretapping program by the New York Times. The Justice Department also made available a longer "White Paper" containing more detailed versions of the arguments. Both letters provoked responses from a group of legal scholars and former government lawyers who had served in both Democratic and Republican administrations. The principal criticism of the Justice Department's position can be found in a letter signed by numerous legal scholars and former government officials published in the New York Review of Books. See Curtis Bradley et al., On NSA Spying: A Letter to Congress, N.Y. REV. BOOKS, Feb. 9, 2006, at 42, available at http://www.nybooks.com/ articles/18650. All of the relevant letters were published in an issue of the Indiana Law Journal, with an introduction by David Cole and Marty Lederman. See David Cole & Martin S. Lederman, The National Security Agency's Domestic Spying Program: Framing the Debate, 81 IND. L.J. 1355 (2006).
54. The commentary of several legal scholars, including Marty Lederman, Jack Balkin, and Stephen Griffin, on the Balkinization blog were invaluable in summarizing the many complex legal issues involved. See Posting of Jack Balkin to Balkinization, http://balkin.blogspot.com/2006/12/anti-torture-memos. html#PartIV (Dec. 22, 2006, 14:31 EST).
55. The debate had been reported previously, see, e.g., Eric Lichtblau & James Risen, Justice Deputy Resisted Parts of Spy Program, N.Y. TAIMES, Jan. 1, 2006, at A1, but the story did not really take off until almost eighteen months later, when James Comey testified about the dramatic attempt at an "end run" around John Ashcroft. See Hearing on the U.S. Attorney Firings Before the Sen. Judiciary Comm., 110th Cong. 23 (2007) (statement of James B. Comey, Attorney Gen. of the United States).
56. Jack Goldsmith has stated that he is not permitted to discuss the legal basis for the administration's so-called Terrorist Surveillance Program. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 182 (2007).
57. Dan Eggen & Paul Kane, Gonzales Hospital Episode Detailed, WASH. POST, May 16, 2007, at A1.
58. For scholarly support of the strong executive power thesis in foreign affairs, see, for example, Calabresi & Prakash, supra note 15;
59. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001);
60. John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99
61. COLUM. L. REV. 2218 (1999);
62. John C. Yoo, Treaty Interpretation and the False Sirens of Delegation, 90 CAL. L. REV. 1305 (2002);
63. John C. Yoo, War and the Constitutional Text, 69 U. CHI. L. REV. 1639 (2002).
64. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006);
65. Hamdi v. Rumsfeld, 542 U.S. 507 (2004);
66. Rasul v. Bush, 542 U.S. 466 (2004).
67. In fact, allies of Vice President Dick Cheney have raised exactly this argument, claiming that the U.S. Supreme Court '"decided to change the rules,'" as opposed to emphatically restating the existing law that the administration had been ignoring. Barton Gellman & Jo Becker, The Unseen Path to Cruelty, WASH. POST, June 25, 2007, at A1 (quoting former Deputy White House Counsel Timothy Flanigan).
68. See, e.g., Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q. J. ECON. 371 (1983);
69. Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987);
70. Jonathan R. Macey, Separated Powers and Positive Political Theory: The Tug of War over Administrative Agencies, 80 GEO. L.J. 671 (1992);
71. Matthew D. McCubbins et al, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989).
72. See John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L. REV. 375, 381 (1993) (defining, among three models of executive branch lawyering, a "situational model," in which "the President simply interprets the law to advance his political objectives, taking into account precedent or legal principles only to the extent that they may create a political obstacle to fulfilling those objectives").
73. See Jonathan R. Macey & Geoffrey P. Miller, Reflections on Professional Responsibility in a Regulatory State, 63
74. GEO. WASH. L. REV. 1105, 1116 (1994).
75. See Nelson Lund, Rational Choice at the Office of Legal Counsel, 15 CARDOZO L. REV. 437, 449 (1993).
76. See, e.g., JERRY L. MASHAW, GREED, CHAOS AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW (1997).
77. Strictly speaking, public choice is a positive theory, an attempt at an explanation of behavior, not a normative theory, which is an attempt at a justification. In practice, however, the positive and normative uses of public choice theory are often run together by legal scholars, generally relying on broadly consequentialist axiological assumptions. See, e.g., JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005);
78. Eric A. Posner, International Law: A Welfarist Approach, 73 U. CHI. L. REV. 487 (2006).
79. For further argument on this point, see W. Bradley Wendel, Lawyers, Citizens, and the Internal Point of View, 75 FORDHAML. REV. 1473 (2006).
80. I owe this useful phraseology to Daniel Markovits. See Daniel Markovits, Adversary Advocacy and the Authority of Adjudication, 75 FORDHAM L. REV. 1367, 1385 (2006).
81. I use the term "practice" here in the sense, developed by Alasdair Maclntyre, of "any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity." ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY OF MORAL THEORY 187 (2d ed. 1984).
82. See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955).
83. In the postscript to the second edition of The Concept of Law, H. L. A. Hart explains the internal/external distinction with reference to the practice conception of rules. See H. L. A. HART, THE CONCEPT OF LAW 254-55 (2d ed. 1994).
84. MACINTYRE, supra note 39, at 190.
85. See Rawls, supra note 40, at 25-26.
86. Macey & Miller, supra note 33, at 1116.
87. For example, David Luban has argued that, with respect to legal advising on the treatment of detainees and permissible interrogation techniques, the Bush administration desired, and Justice Department lawyers provided, only the pretense of legal advice, in order to provide political cover for doing something that the administration was committed to doing anyway. DAVID LUBAN, The Torture Lawyers of Washington, in LEGAL ETHICS AND HUMAN DIGNITY 162, 163-65 (2007).
88. The Restatement provides that the lawyer's basic duty is to "proceed in a manner reasonably calculated to advance a client's lawful objectives, as defined by the client after consultation." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 16(1) (2000). The term "zealous advocacy" derives from the ethical considerations in the ABA's Model Code, promulgated in 1969. See MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 (1969) ("A [l]awyer [s]hould [represent [a] [c]lient [z]ealously [w]ithin [t]he [b]ounds [o]f [t]he [1]aw.").
89. See John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371 (1988);
90. McGinnis, supra note 32;
91. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CZARDOZO L. RAEV. 43 (1993);
92. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303 (2000);
93. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
94. McGinnis, supra note 32, at 381-82 (emphasis added).
95. See generally Merrill, supra note 46.
96. RONALD DWORKIN, LAW'S EMPIRE 225, 256 (1986).
97. See CORNELL W. CLAYTON, THE POLITICS OF JUSTICE: THE ATTORNEY GENERAL AND THE MAKING OF LEGAL POLICY 48-80 (considering historical examples of more or less political Attorneys General). Compare Moss, supra note 46, at 1312-14, with Merrill, supra note 46, at 53-54 (assessing the Take Care Clause as the source of the duty to serve as a neutral expositor).
98. RESTATEMENT (THIRD) ZOF THE LAW GOVERNING LAWYERS § 23 (1) (2000).
99. Nix v. Whiteside, 475 U.S. 157, 166 (1986).
100. Id. at 187.
101. FED. R. CIV. P. 11;
102. MODEL RULES OF PROF'L CONDUCT R. 3.1 (2007).
103. MODEL RULES OF PROF'L CONDUCT R. 3.3(a)(2).
104. See, e.g., Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. 2003).
105. See Moss, supra note 46, at 1315-16.
106. Griffin B. Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?, 46 FORDHAM L. REV. 1049, 1069 (1978).
107. See, e.g., Freeport-McMoRan Oil & Gas Co. v. Fed. Energy Regulatory Comm'n, 962 F.2d 45, 47 (D.C. Cir. 1992) (chiding attorneys for the Federal Energy Regulatory Commission for not taking an opportunity to settle ongoing litigation and noting that "government lawyers have obligations beyond those of private lawyers").
108. See, e.g., Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988);
109. Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 CAONN. L. REV. 1185 (2003);
110. Robert L. Nelson & David M. Trubek, Arenas of Professionalism: The Professional Ideologies of Lawyers in Context, in LAWYERS' IDEALS/LAWYERS' PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL PROFESSION 177, 180 (Robert L. Nelson et al. eds., 1992);
111. Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 242 (1992);
112. William H. Simon, Babbitt v. Brandeis: The Decline of the Professional Ideal, 37 STAN. L. REV. 565 (1985).
113. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 272-73 (1980) (arguing that one aspect of the rule of law is fundamentally about "holding ... the rulers to their side of a relationship of reciprocity, in which the claims of authority are respected on condition that authority respects the claims of the common good").
114. Michelman, supra note 12, at 1496.
115. Id.
116. See, e.g., Geoffrey P. Miller, Government Lawyers' Ethics in a System of Checks and Balances, 54 U. CHI. L. REV. 1293 (1987).
117. See BERNARD WILLIAMS, Realism and Moralism in Political Theory, in IN THE BEGINNING WAS THE DEED 1, 5 (Geoffrey Hawthorn ed., 2005) (defining the "Basic Legitimation Demand" as a constitutive element of "there being such a thing as politics").
118. Michelman, supra note 12, at 1498.
119. Id. at 1500-01.
120. Robert Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 11, 15 (1983).
121. See Don Herzog, Some Questions for Republicans, 14 POL. THEORY 473, 487-88 (1986).
122. Id. at 488.
123. See, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT 112 (1999) ("On any plausible account, human life engages multiple values and it is natural that people will disagree about how to balance or prioritize them.").
124. See CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY 131-34 (1987);
125. THOMAS NAGEL, MORTAL QUESTIONS 128-41 (1979) (discussing the fragmentation of value). David Ross famously listed categories of prima facie moral obligations, arising from different circumstances of human existence, including duties of loyalty, gratitude, beneficence, nonmaleficence, and perfectionist duties. See W.D. ROSS, THE RIGHT AND THE GOOD 20-21 (1930).
126. See, e.g., Isaiah Berlin, The Pursuit of the Ideal, in THE CROOKED TIMBER OF HUMANITY 10-11 (Henry Hardy ed., 1990).
127. STUART HAMPSHIRE, MORALITY AND CONFLICT 146 (1983).
128. Isaiah Berlin, Two Concepts of Liberty, in CONTEMPORARY POLITICAL PHILOSOPHY: AN ANTHOLOGY 369, 413 (Robert E. Goodin & Philip Pettit eds., 1997) ("[W]e are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others.... [I]t seems to me that the belief that some single formula can in principle be found whereby all the diverse ends of men can be harmoniously realised is demonstrably false. If, as I believe, the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict - and of tragedy - can never be wholly eliminated from human life, either personal or social.").
129. Id. at 403-04.
130. Id. 404.
131. Id. 407.
132. Id. at 405 ("The sage knows you better than you know yourself, for you are the victim of your passions, a slave living a heteronomous life, purblind, unable to understand your true goals. You wish to be a human being. It is the aim of the State to justify your wish.... [HJumanity is the raw material upon which I impose my creative will; even though men suffer and die in the process, they are lifted by it to a height to which they could never have risen without my coercive - but creative-violation of their lives. This is the argument used by every dictator, inquisitor, and bully who seeks some moral, or even aesthetic, justification for his conduct.").
133. Michelman, supra note 12, at 1513.
134. Id. at 1527 (quoting HANNA FENICHEL PITKIN, FORTUNE IS A WOMAN: GENDER AND POLITICS IN THE THOUGHT OF NICCOLO MACHIAVELLI 279 (1984)) (internal quotation marks omitted).
135. This is a major theme of the work of Daniel Markovits. See Markovits, supra note 38;
136. Daniel Markovits, Democratic Disobedience, 114 YALE L.J. 1897 (2004);
137. Daniel Markovits, Legal Ethics from the Lawyer's Point of View, 15 YALE J.L. & HUMAN. 209 (2003).
138. Michelman, supra note 12, at 1522.
139. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 84 (1977) (emphasis added).
140. Id. 87-88.
141. Id. at 22, 90-92.
142. HART, supra note 40, at 100-10.
143. Id. at 269. Hart stressed the content-independence of law in papers written after the first edition of The Concept of Law. See H. L. A. Hart, Commands and Authoritative Legal Reasons, in ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY 243 (1982).
144. DWORKIN, supra note 84, at 40-41, 43, 90.
145. Id. at 65-68.
146. DWORKIN, supra note 49, at 248 ("[H]e must decide which interpretation shows the legal record to be the best it can be from the standpoint of substantive political morality." (emphasis added)).
147. Joseph Raz, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 210 (1994).
148. See, e.g., Jeremy Waldron, Normative (or Ethical) Positivism, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 411 (Jules Coleman ed., 2001).
149. Id. at 420.
150. Michelman, supra note 12, at 1524 ("Black Americans ... were not tantamount to 'the people,' and there is no telling how long it would have taken for their new foundations to have risen to the level of constitutional significance for a Court following Ackerman's argument.").
151. Waldron, supra note 93, at 421.
152. See, e.g., Fiss, qsupra note 18.
153. Owen Fiss refers to the norms of an interpretive community as "disciplining rules," see id. at 11, but this imprecise use of the term "rules" has created unnecessary confusion, as is evident in Fiss's debate with Stanley Fish. See Stanley Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984). Fish makes an infinite regress argument, noting that if these interpretive norms were indeed rules, they would stand in need of interpretation, requiring further meta-disciplining rules.
154. See id. at 1326, 1334. Instead of rules, Fish believes an interpretive community is constituted by "interpretive assumptions and procedures [that] are so widely shared in a community that the rule appears to all in the same (interpreted) shape."
155. Id. at 1327. Fiss's argument, read carefully, is that there are "interpretive assumptions and procedures" that are widely shared within a community. Apparently, Fiss actually does not disagree with Fish at all, and Fish has simply seized on Fiss's use of the word "rule" to argue against a position that Fiss does not hold.
156. See, e.g., DAVID LYONS, ETHICS AND THE RULE OF LAW 194-214 (1984);
157. RAZ, supra note 13, at 210.
158. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 143-50 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
159. Henry Hart and Albert Sacks talk about attributing a single purpose to a piece of legislation, but their legal process materials have come to be understood as embodying the more general point that the law should be understood as a purposive activity. As David Luban shows in an insightful discussion, Lon Fuller is another legal theorist who emphasizes the purposive nature of law. See DAVID LUBAN, Natural Law as Professional Ethics: A Reading of Fuller, in LEGAL ETHICS AND HUMAN DIGNITY, supra note 44, at 99, 108-09 [hereinafter LUBAN, A Reading of Fuller]. The theory of interpretation I defend here is indebted substantially to the idea that the purposiveness or goal-directedness of any practice - what it is all about, so to speak - is a noncircular source of obligations internal to the practice, because it would be incoherent to claim to be engaging in any activity without caring about the goods that are internal to that form of activity.
160. MACINTYRE, supra note 39, at 190-91.
161. Richard B. Schmitt, Cheney Is Said to Have Halted Promotion, L.A. TIMES, June 7, 2007, at A1 3.
162. Eggen & Kane, supra note 27;
163. Dan Eggen, Official: Cheney Urged Wiretaps, WASH. POST, June 7, 2007, at A3;
164. Scott Shane & Eric Lichtblau, Cheney Pushed U.S. to Widen Eavesdropping, N.Y. TIMES, May 14, 2006, at A1.
165. See LUBAN, A Reading of Fuller, supra note 99, at 99-130.
166. FULLER, supra note 13, at 106.
167. LUBAN, A Reading of Fuller, supra note 99, at 105.
168. Id. at 109;
169. see also FULLER, supra note 13, at 96 (noting that the natural law regulating "the enterprise of subjecting human conduct to the governance of rules" is conceptually no different from the natural law of carpentry, as perceived by a carpenter who is interested in a building not falling down);
170. ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 204-31 (1995) (arguing that interpretation ought to look to whatever rationality is immanent in a particular mode of ordering).
171. See generally Carl G. Hempel, The Logic of Functional Analysis, reprinted in READINGS IN THE PHILOSOPHY OF SOCIAL SCIENCE 349 (Michael Martin & Lee C. McIntyre eds., 1994);
172. Larry Wright, Functions, 82 PHIL. REV. 139 (1973).
173. See, e.g., Bingham supra note 13.
174. See, e.g., DWORKIN, supra note 49 (talking in terms of a community of principle, not public values, but making essentially the same point);
175. Fiss, supra note 18, at 2, 8.
176. One way of understanding the defense of the rule of law is found in E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT 258-69 (1975). I owe the colloquial formulation to Yasutomo Morigiwa, but he has published it only in Japanese.
177. Cf. JOHN RAWLS, POLITICAL LIBERALISM: EXPANDED EDITION, at xxvi (rev. ed. 2005) (noting that it is the very fact of "the absolute depth of . . . irreconcilable latent conflict" that makes liberal political institutions necessary).
178. See C LAYTON, supra note 50, at 18 (quoting Andrew Jackson).
179. On the other hand, President Andrew Jackson's statement could be understood as an appeal to the indeterminacy of law. For a more recent statement along similar lines, although more clearly an appeal to legal indeterminacy, consider President George W. Bush's reaction to the Hamdan case, which held that all detainees were covered by Common Article 3 of the Geneva Conventions, proscribing outrages upon human dignity. Bush responded: "That's like - it's very vague. What does that mean, 'outrages upon human dignity'? That's a statement that is wide open to interpretation."
180. See Press Release, Office of the White House Press Secretary, Press Conference of the President (Sept. 15, 2006), available at http://web.archive.org/web/20060923185835/http://www.whitehouse.gov/news/ releases/2006/09/20060915-2.html. The unedited comment is reported in Richard Leiby, Down a Dark Road: Movie Uses Afghan's Death to Ask Tough Questions About U.S. and Torture, WASH. POST, Apr. 27, 2007, at C1.
181. See Letter from William E. Moschella, Assistant Attorney Gen., Office of Legal Affairs, to Pat Roberts and John D. Rockefeller IV, Senate Select Comm. on Intelligence, and Pete Hoekstra and Jan Harman, House Permanent Select Comm. on Intelligence (Dec. 22, 2005),
182. reprinted in David Cole & Martin S. Lederman, The National Security Agency's Domestic Spying Program: Framing the Debate, 81 IND. L.J. 1355, 1360-63 (2006).
183. See 50 U.S.C. §1811(2000).
184. See NORMAN J. SINGER & J. D. SHAMBIE, STATUTES AND STATUTORY CONSTRUCTION (7th ed. 2008).
185. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
186. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002),
187. reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172 (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
188. See FINNIS, supra note 13;
189. FULLER, supra note 13;
190. RAZ, supra note 19;
191. Bingham, supra note 13.