As we enter the last phase of an election cycle marked by a huge and growing amount of money in politics, it is time to confront a central tension in the Supreme Court’s interpretation of the First Amendment. In the well-known 2010 case, Citizens United v. Federal Election Commission, the Court reaffirmed that giving and spending money in connection with elections constitute protected “speech” under the First Amendment and thus that any restrictions on these activities can only survive if they are narrowly tailored to serving a compelling governmental interest. A bare five months later, another important case of the same term, Holder v. Humanitarian Law Project,considered whether the government may ban the provision of “material support” to terrorist groups and held that it may. While some “material support” – expert advice and training — raised First Amendment concerns, the Court did not consider whether giving money to terrorists was protected “speech” under the First Amendment but implied that it was not. Thus, a contradiction resides in the heart of the Court’s interpretation of the First Amendment.Citizens United tells us that giving money to Group X is “speech” under the First Amendment, while Humanitarian Law Project tells us that giving money to Group Y is not “speech” under the First Amendment. As we reflect on this election season in which lots of “material support” to parties and candidates is being passed around, this is an important contradiction to resolve.
Online
Sosa and Substantive Solutions to Jurisdictional Problems
Suppose that Copernicus, as a public service, had undertaken to manage a planetarium designed on geocentric principles. Being Copernicus, he no doubt would have done a superb job, whatever reservations he may have had about the theoretical soundness of the business.
Judge William Fletcher, when he was Professor Fletcher, brought to his field a change close to a revolution, restoring general law to the conceptual universe and demonstrating the historical and theoretical inadequacy of the unsophisticated version of the Erie doctrine that had become dominant. By restoring the role of general law in the ontology of American jurisprudence, he both improved our understanding of earlier thinking and opened up possibilities that had been closed to those who thought that every legal norm must be the creation of some identifiable sovereign.
For example, recovering the general law, and the status of the law of nations as the pre-eminent example of general law, makes it possible to understand the framers’ decision to constitute the Supreme Court of the United States as a tribunal to decide cases between States of the Union, without granting Congress power to adopt the rules that would be applicable in such cases. That decision made sense to lawyers who believed that the Court would apply an existing set of legal norms, well known to them. Understanding the law that governs cases between States as general law, and not the law of any one sovereign, also makes unnecessary the post-Erie move of characterizing that law as federal in order to avoid the even more unreasonable result of calling it state law. Surely a boundary dispute between Massachusetts and Rhode Island should not be governed by the law of either contending party, but just as surely the Constitution provides no applicable rule, nor does it empower any federal lawmaking authority to create one. No federal law need be found, or invented, however, if the law of nations is available as general law.
Professor Fletcher is now Judge Fletcher, and as such his role is to operate the Supreme Court’s planetarium, without regard to his private views of its accuracy in depicting the legal cosmos. Combining his scholarly past with his present role as public servant, Judge Fletcher now brings his unique insights to bear on the Supreme Court’s latest encounter with general law turned federal common law, Sosa v. Alvarez-Machain. In that case the new federal common law gobbled up yet another bit of the general law, the law of nations referred to in 28 U.S.C. § 1350, the descendant of the alien tort clause of Section 9 of the Judiciary Act of 1789. As Judge Fletcher explains with his characteristic lucidity, the Court’s opinion answers some questions while leaving others open.
I will focus on one of the questions it leaves open, in an attempt to clarify the considerations that have driven the Court to conclude, in the face of text, structure, and history, that some unwritten norms are laws of the United States as that term is used in the Constitution. The question is whether this latest bit of the new federal common law, the bit that incorporates some of the law of nations, is federal law for purposes of Article VI as well as Article III. I will argue that it will have to be so regarded, and that the reasons for that conclusion help expose the complexities, not to say inanities, that follow from the Court’s decision to deny the separate existence of general law and absorb much of it into federal law.
Counterinsurgency, The War on Terror, And The Laws of War: A Response
As a graduate student attending George Washington University in the late sixties, I attended a debate between John Norton Moore and Richard Falk concerning both the wisdom and validity of the ongoing war in Vietnam. As John Moore rose to respond to Professor Falk’s critique of the Vietnam conflict, he uttered this very memorable line: “Dick, I disagree with but two of your points—your premise and your conclusion.” After all of these years, I can offer this same assessment regarding Ganesh Sitaraman’s article stating his perceived need for revision of the existing Law of War (LOW) in order for the United States to successfully implement a modern counterinsurgency strategy.
The premise: An ongoing “global insurgency” now represents the single most significant national security threat to the United States. Counterinsurgency has become the warfare of this age, and the current LOW cannot effectively accommodate this military reality.
The conclusion: It is essential that the international community devise two Laws of War—a conventional Law of War and a law for “counterinsurgency war.”