Saturday, July 17, 2004

I've just read Jack Balkin's discussion of the Youngstown decision, and its relation to the what has become known as the OLC's "Torture Memo." Here are the three paragraphs Balkin quotes from the decision of Justice Jackson:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Two points: One is to acknowledge the brilliance of the opinion, which is clear even to a layman, though in my case I grew up around debates over Con Law. The other is to recognize, or be reminded of, the fragility of any line of argument as it passes through history's currents and contingencies. One understands why Justice Scalia argues so forcefully for stability, for the notion that it is the closest we can and should come to justice. How do you defend curiosity, as a value, against such ideas? By arguing for curiosity itself as a stabilizing force; this Balkin does well.

Brian Leiter's intellectualism encompasses ideas, Balkin's intelligence encompasses the ambiguities inherent in their communication. His collegial manner argues by example. On a more directly intellectual level he argues from an understanding that foundations may simultaneously exist and not. Foundations change with every decision, but are still foundations; languages change, but are still language. There is no either/or. Such a narrative philosophy, by way of, rather than concerning narrative, is as frustrating to leftists as it is to conservatives, as frustrating to bureaucrats as it is to analytic philosophers. It simply denies the law of non-contradiction. Such a process can be rigorously formal and intellectual, but it can not be static, except inasmuch as we are limited by the parameters of being. One person can not invent language, and it is impossible to circumvent the ambiguities caused by its creation.

My interests may lie in a more violently schizophrenic variation of this logic. I may have no choice given my upbringing. And sometimes in Balkin's writing I miss a certain aggressiveness or even aggression, of the sort I indulge in (and enjoy in Leiter.) In a world where his opinions were commonplace, as they should be, I'd have a lot to disagreements with him, but we are not in that world, and Balkin is pretty damn good.

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