The best-selling, highly successful author’s 621-page The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities adds not a single piece of significant new evidence to that which convinced then–North Carolina attorney general Roy Cooper and virtually all other serious analysts by mid-2007 that the lacrosse players were innocent of any sexual assault on anyone.

Unless, that is, one sees as new evidence Cohan’s own stunningly credulous interviews with three far-from-credible participants in the drama who themselves add no significant new evidence beyond their counterfactual personal opinions.

They are Mike Nifong, the disbarred prosecutor and convicted liar; Crystal Mangum, the mentally unbalanced rape complainant and (now) convicted murderer, who has dramatically changed her story more than a dozen times; and Robert Steel, the former Duke chairman and Goldman Sachs vice chairman, who helped lead the university’s notorious rush to judgment against its own lacrosse players.

Cohan is not deterred by the fact that Nifong admitted and Steel said, quite unequivocally, both in April 2007, that the lacrosse players were innocent of committing any crimes during the March 13–14, 2006 spring break party at their captains’ house, where Mangum and Kim Roberts were hired to strip. Nifong said on July 26, 2007 that “there is no credible evidence” that any of the three indicted lacrosse players committed any crime involving Mangum. Steel said on April 11, 2007 that Cooper’s exoneration of them that day “explicitly and unequivocally establishes [their] innocence.” Nifong has since all but retracted his admission and Steel has waffled on his.

Cohan duly but inconspicuously includes these statements in his semi-free-association narrative. At the same time, he implies dozens of times that one or more players sexually assaulted Mangum in a bathroom during the party. In recent interviews, Cohan has made his thesis more explicit: “I am convinced, frankly, that this woman suffered a trauma that night” and that “something did happen in that bathroom,” Cohan told Joe Neff of the Raleigh News & Observer. In an April 8 Bloomberg TV interview, he ascribed the same view to his three main sources: “Between Nifong, Crystal, and Bob Steel, the consensus seems to be something happened in that bathroom that no one would be proud of.” He said much the same on MSNBC’s fawning “Morning Joe” the next day.

Cohan also asserted in a Cosmopolitan interview that Mangum now “describes it as somebody shoving a broomstick up her. All I know is that the police believed her, district attorney Mike Nifong believed her, and the rape nurse Tara Levicy believed her.” This seems doubtful, since none of Mangum’s many stories in March 2006 and for years thereafter mentioned anything about a broomstick being used to assault her, a scenario also ruled out by the physical evidence.

(Disclosure: I coauthored, with KC Johnson, a 2007 book concluding that all credible evidence points to the conclusion that no Duke lacrosse player ever assaulted or sexually abused Crystal Mangum in any way. I have also become friendly with some of their parents and lawyers. I thus have both a lot of relevant information and an obvious interest in discrediting Cohan’s book. I have no complaint about its references to me.)

The rape-by-broomstick and other Cohan innuendos and assertions are not supported—indeed, they are powerfully refuted—by the long-established facts that his own book repeats, not to mention some facts that he studiously leaves out.

This has not prevented an amazing succession of puff-piece reviews in The Wall Street Journal, FT Magazine, the Daily News, Salon, the Economist, the Daily Beast, and The New York Times, whose reviewer (unlike the others cited above) at least knew enough to write that “Cohan hasn’t unearthed new evidence” and that “[t]here is still nothing credible to back up the account of an unreliable witness.”

Some of the most sensational supposed revelations in Cohan’s “definitive, magisterial account” (as touted in Scribner’s press package) were proved false within two days of his April 8 publication date.

In an April 9 email responding to an inquiry from me, Robert Steel contradicted Cohan’s claim that Steel thinks “that something happened in that bathroom that no one would be proud of.” Steel told me: “I have no view now, nor have ever had a view of what if anything happened in the bathroom. Period.” He added that he had never used, or heard, the words used by Cohan.
James Coman, the veteran prosecutor who led Attorney General Cooper’s reinvestigation of the case, has denounced as “figments of [Nifong’s] imagination” Nifong’s assertion that Cooper had “sandbagged” Coman. To the contrary, Coman told reporter Joe Neff that, after an in-depth reexamination of the evidence, he and his colleague Mary Winstead insisted that Cooper declare the players innocent, and Cooper agreed. Cohan appears never to have called Coman or Winstead to check the accuracy of Nifong’s self-serving speculation.
Phil Seligmann, father of wrongly indicted lacrosse player Reade Seligmann, denounced as “patently false” Cohan’s claim that the Seligmanns had never paid Reade’s first two lawyers, Buddy Conner and the late Kirk Osborn, for any of their work. “We made hundreds of thousands of dollars in legal payments to Kirk and Buddy,” for all the work they did, Seligmann said. He added that Cohan had never contacted him or Reade to check his false report.
Cohan’s claim that Duke University paid $60 million in 2007 to the three wrongly indicted lacrosse players to settle their threatened lawsuit against the university is flat-out false. The actual figure is widely known to have been one-third as much, as stated in more reliable reports. These reports also give the lie to Cohan’s wild, book-promoting claims that the lacrosse case has cost Duke “near $100 million” in settlements and legal and PR fees.
Sensational smears based on false information aside, the absence of new evidence does not deter Cohan from seeking to spin his own tendentious characterizations of old evidence—often contradicted by other evidence elsewhere in the book—into dark Nifongesque innuendos of sexual assault, or “something.”

Along the way, Cohan repeatedly smears the falsely accused “Duke lax bros,” as he mockingly calls them on Twitter. Sometimes he disparages them in his own voice (as in, “the festering wound that was Duke lacrosse”). Sometimes he happily quotes Nifong, left-leaning professors (one of whom calls the players “arrogant, callous, dismissive”), and journalists. Cohan does not cite many specifics other than the lacrosse players’ admittedly bad (but not very unusual) record of binge drinking and noisy parties at rented houses in a residential neighborhood near the campus. And sometimes, just for balance, he says nice things, especially about the only team member who gave him an interview.

He deprecates as “perfunctory” the conclusion of a committee chaired by liberal, black law professor James Coleman that the lacrosse players were generally polite, nondisruptive students who had “performed well academically,” behaved in an “exemplary” fashion on trips, and been “respectful of people who serve the team,” from bus drivers and airline personnel to the groundskeeper.

In a remarkably content-free exercise in character assassination by proxy, Cohan approvingly quotes Nifong’s attacks on all of the former DA’s major antagonists—without, it appears, seeking responses from any of them, excepting Roy Cooper, who refused to talk to Cohan. With seeming approval, Cohan quotes Nifong trashing Cooper for “selling [his] soul to the devil” by exonerating the lacrosse players. He quotes Nifong denouncing as “corrupt” Superior Court Judge Osmond Smith. (Smith had sentenced Nifong to a night in jail for lying to him in court.) Corrupt? Nifong explains that he was told by someone who was told by someone that someone else had “overheard” Judge Smith at a wedding saying something that seemed to prejudge the case.

Cohan also endorses Nifong’s attack on the three-person, North Carolina State Bar disciplinary panel that disbarred Nifong after a five-day trial. Nifong calls the panel a “kangaroo court” engaged in what Cohan calls a “sacrificial slaughter.” The panel had found Nifong guilty of violating the state’s ethical rules by his aggressive media campaign, early in the case, to tar the lacrosse players as racist rapists and “hooligans”; by seeking to hide highly exculpatory DNA evidence from the defense; and by lying to Judge Smith about that evidence. Cohan does not put the slightest dent into the overwhelming evidence supporting the actions of Cooper, Judge Smith, and the state bar panel.1

Cohan devotes dozens of pages to describing Nifong—and quoting his self-descriptions—in mostly glowing, if sometimes unintentionally ironic, terms, as in “Nifong developed a lifelong disdain for bullies.”2 Indeed, Cohan’s attitude toward Nifong’s proven, extreme abuses of prosecutorial power is so astonishingly benign as to almost imply that because poor black kids often don’t get fair treatment from the criminal justice system, rich (and not so rich) white kids should not get fair treatment either—no matter how innocent.

Cohan offers a breathtakingly misinformed (to put it charitably) argument dismissing as “a red herring” the charge that Nifong had hidden from defense lawyers exculpatory evidence that the DNA of four unidentified males (not Duke lacrosse players) and sperm from her boyfriend was found in or on Mangum. Why does Cohan deem it a “red herring”? First, he argues that Nifong did not try to hide the four males’ DNA. But mainly, he asserts that “it didn’t matter” because “Nifong had tried—and won—many rape cases without DNA evidence.”

Perhaps he had, either before DNA evidence was available or in cases in which its presence or absence proved little. But DNA was dispositive in the Duke lacrosse case. The absence of lacrosse players’ DNA on or in her body or clothing proved the innocence of the three indicted defendants. It’s almost inconceivable that they could have brutally raped, sodomized, and ejaculated in Mangum for anything close to 30 minutes, as she originally claimed, without leaving DNA. The evidence of the four unidentified males’ DNA was damaging to Mangum’s credibility, showing that she had concealed recent sexual activity from the police, among other points.

Even Cohan admits that if Nifong had released the state’s exculpatory analysis of the DNA evidence as soon as he had it either to the public or to defense lawyers (who would have made it public), it “would likely have doomed Nifong’s reelection [sic] effort” and been “the end of the case.” (This was the appointed DA’s first election.)

None of these actions by Nifong prevent Cohan from presenting him as a person of integrity who had made a few forgivable mistakes in his zeal to champion “my victim,” Mangum. While straining to make excuses for Nifong, Cohan sneers repeatedly at the players’ defense lawyers, whom he calls “masters at manipulating the media” (in the Cosmopolitan interview) for their “shock and awe” campaign and “fat retainers.”

Manipulating the media? The defense lawyers’ media campaign consisted of making public what Cohan never denies was truthful and probative evidence of innocence. And unless I missed something while slogging through this seemingly endless tome, Cohan does not cite a single intentionally false, misleading, or otherwise inappropriate statement that any defense lawyer for a lacrosse player ever made.

Cohan also seems at times to lose track of the flow of events, repeatedly contradicting on one page claims that he makes elsewhere. On page 572, for example, Cohan states that Nifong “never said he agreed with Cooper’s finding of innocence.” This flatly contradicts what Cohan writes on the preceding page, where he quotes Nifong’s above-referenced July 26, 2007 admission that “there is no credible evidence that [the three indicted players] committed any of the crimes for which they were indicted or any other crimes during the party.”

Although Cohan seems to try to libel-proof his book by pasting in, with little analysis, dozens of pages of material favorable to the lacrosse players (as well as much more material hostile to them, and much deadly dull filler), there are some telling omissions. Two come in his discussion of sexual assault nurse Tara Levicy, who—alone among the three doctors and five nurses who interviewed or examined Mangum after she reported to Duke University Hospital as a self-styled rape victim—expressed confidence that Mangum was telling the truth and claimed (falsely) that there was physical evidence to back her up. Levicy was not in charge of the physical exam.

Cohan dismisses claims that Levicy was biased in favor of rape complainants as based on nothing more than her time with Planned Parenthood, her enthusiasm for Eve Ensler’s The Vagina Monologues, and her strong feminist convictions. But the defense never attacked her for feminist convictions. It suggested that she was incompetent. And when others (including KC Johnson and me) stressed Levicy’s apparent bias, the most important evidence we cited was her highly revealing sworn deposition testimony that she had “never” doubted the truthfulness of any rape complainant and her pattern of changing her own analysis repeatedly to fit Nifong’s changing theories of the case. Cohan omits both.

A Scribner-Cohan press release also claims falsely that Levicy’s “report of what Mangum told her that night [actually, the next morning] is stunning and has never before been revealed.” (Cohan said the same on the April 14 Diane Rehm Show, two days after KC Johnson had exposed it as false on his blog.) In fact, Levicy’s report was obtained and summarized in detail more than seven years ago by numerous reporters and authors, including KC Johnson and me, and was publicly discounted as unconvincing by Attorney General Cooper’s distinguished investigators.

More generally, after endorsing many times Nifong’s assertions that the medical evidence supported Mangum’s rape claim, Cohan acknowledges that Cooper’s investigators had found that “[n]o medical evidence confirmed her stories.” They also found that Levicy had “based her opinion that the exam was consistent with [Mangum’s story] largely on [her] demeanor and complaints of pain rather than on objective evidence.”

How does Cohan manage to fill 621 pages? He stuffs them with long, long, often repetitive quotations from his interviews with Nifong, news articles, op-ed columns (including two of mine), blog posts, and other previously published remarks. He also goes on for dozens and dozens of pages detailing and lamenting the well-known culture of underage binge drinking, overemphasis on athletics, and flaccid academic standards at Duke and other prestigious colleges.

These temperance lectures would be harmless, and even of some value, but for the author’s underlying campaign. He is remarkably indulgent, on the whole, of the disgraceful rush to judgment against the Duke lacrosse players by Robert Steel, by Richard Brodhead, the cowardly Duke president, by other top administrators, and by almost 100 Duke professors.

The great mystery here is why a skillful, highly successful author and journalist would stoop so low. Dreams of a movie deal, perhaps? One also wonders why, to take one of many possible examples, Cohan didn’t bother to check his facts with James Coman or Mary Winstead—an elementary precaution for any responsible journalist or author—before trumpeting Nifong’s false claim that Cooper had “sandbagged” them when he exonerated the lacrosse players. Was the best-selling author of this “definitive, magisterial account”—which I would call deeply dishonest—afraid of letting stubborn facts spoil sensational stories?
1
The panel was also concerned about Nifong’s refusal even to look at highly exculpatory evidence that defense lawyers tried to present to him; his use of rigged identification procedures to frame the three defendants; and his rush to indict them based almost solely on Mangum’s wildly changing stories.
2
The Urban Dictionary lists “Nifong” as a quasi-synonym for “bully,” and defines “to Nifong” as, among other things, “to knowingly undermine set professional standards to further ones [sic] career, on the back of innocent people.” And based on Nifong’s ravings to his admirer Cohan, his name could also be cited as a quasi-synonym for “rabid” in the next edition.)

The post The Many Ways in Which The New Book About the Duke Lacrosse Case is Wrong appeared first on Stuart Taylor, Jr..

With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy–who has never upheld a racial preference–the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state’s 2006 initiative banning racial preferences in state programs. (The issue there is not whether it’s unconstitutional for universities to use racial preferences excessively, but whether it’s unconstitutional for voters to prohibit them entirely.)

The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation’s selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?

The question has never been more important or more complicated. A rapidly growing body of social science evidence shows that admissions preferences cause great harm to many of the supposed beneficiaries, and that such racial preferences make socio-economic inequality worse, not better. Racial preferences typically produce freshman classes with big SAT and GPA gaps among black, Hispanic, white, and Asian students. At the University of Texas, for example, the black-Asian mean SAT gaps have run above 450 points out of a total possible score of 2400. And studies suggest that many colleges systematically discriminate against high-achieving Asians, as they once did to Jews, to hold down their admission numbers.

The two pending cases, and others, have focused on universities’ discrimination against whites and Asians, but the justices must be aware of recent research that casts doubt on the traditional presumption that racial preferences benefit recipients. For example, studies have shown that disproportionate percentages of preferentially admitted black freshmen who aspire to major in science and other tough subjects are forced by bad grades to move to softer majors–and that they would be more likely to achieve their ambitions had they gone to less elite schools for which they were better qualified. (1)

As for the benefits to white students, I don’t doubt that exposure to people of different races improves everyone’s education if it occurs naturally. But engineering diversity through racial preferences aggravates racial stereotypes and resentments and often leads to self-segregation and social isolation, as detailed in Russell Nieli’s powerful 2012 book, Wounds That Will Not Heal. Another study by Peter Arcidiacono and colleagues shows that students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.

Social science evidence now shows that while passed-over whites and Asians suffer (modestly and temporarily, in my view) from race-based affirmative action, the more seriously damaged victims of large racial preferences are the many good black and Hispanic students who are doomed to academic struggle, and damaged self-confidence, when put in direct competition with academically much-better-qualified students. Universities misleadingly assure these students that they will do well, while ignoring and seeking to suppress evidence showing the enormous size of their preferences and poor academic results. No university of which I am aware, for example, tells its racial-preference recruits that more than half of black students end up in the bottom twenty percent of their college classes and the bottom ten percent of their law school classes.(2) Racial preferences as used today pervert a once-egalitarian cause by pushing many fairly affluent black and Hispanic students ahead of working-class and poor Asians and whites. So addicted are the universities to racial preferences, and so fearful are most politicians of being trashed as racists, that the Supreme Court may be the only institution that could restore the original ideals of affirmative action.

I hope that in the Texas case, or perhaps in future cases, the justices will order two modest reforms: order schools to disclose data showing the size, operation, and effects on academic performance of their racial preferences; and mandate that universities stop preferring blacks and Hispanics over better-qualified Asians and whites who are also less well-off.(3) The first reform would equip admitted applicants and policymakers alike to make better-informed decisions. The second would provide healthy incentives for selective schools both to enroll more outstanding working-class and poor students and to reduce the mismatch problem.

It goes without saying that educational gaps are the biggest reason for the racial and socioeconomic inequality that cause such deep wounds in our social fabric. But the evidence shows that racial preferences make things worse, not better, by setting up many of our best black and Hispanic students for academic frustration, by neglecting our most promising working-class and low-income students, and by papering over the real problem.

The real problem is the huge racial gap in early academic achievement symbolized by the undisputed fact that the average black twelfth grader has acquired no more academic learning than the average white eighth grader. The real solution is to improve the education received by these children from birth through high school. Every bit of energy that is now being spent on sustaining a failed system of racial admissions preferences would be far better invested in teaching kids enough to make them academically competitive when they arrive at college.

1. These studies were carried out by Rogers Elliott and A.C. Strenta of Dartmouth, Frederick Smyth and John McCardle, then of the University of Virginia, and Peter Arcidiacono and colleagues at Duke. Other studies by Richard Sander of UCLA Law School (my coauthor) and Doug Williams of the University of the South show that black law students would be far more likely to do well in law school and pass the bar exam if they attended schools for which they were well qualified.

2. Law school students who have received preferential racial treatment fail the bar exam in shocking percentages: Blacks fail their first bar exam attempt at four times the white rate.

3. Rick Sander and I propose these reforms in our book, Mismatch, and in an amicus brief that we filed in the Texas case.

The post Race-Based Affirmative Action Makes Things Worse, Not Better appeared first on Stuart Taylor, Jr..

That is the essence of the story told by Abigail Thernstom in her meticulously researched and forcefully argued book. President Obama’s success in winning white votes has completed the proof that the white racism which the sixty-four-year-old law was designed to combat has become a marginal factor in American politics. And the Voting Rights Act, which has come to be little more than a racial gerrymandering machine, has become “a barrier to greater integration” of our politics. Yes, we still have glaring racial inequalities rooted in our history of slavery and racism. About this there can be no doubt. But “the caste system that originally justified taking race into account in structuring elections is gone,” Thernstrom concludes, and “further progress demands that we now cease to take race into account.”

More liberal experts—including virtually the entire civil rights establishment—argue forcefully that the Voting Rights Act still has much work to do. Thernstrom does not deny that isolated bastions of white racism and bloc voting remain, especially in “pockets of the rural South.” But the evidence that she marshals largely supports her conclusion that in today’s world race-based districting is rarely if ever a necessary remedy. “Integration was the aim of the civil rights movement in the 1950s and much of the 1960s, and, by the ultimate test, American politics is now integrated,” she observes. “Blacks have been a major force in American politics for decades, and now they have reached its highest peak.”

Thernstrom is among the nation’s most distinguished scholars on racial issues. She is a conservative, but not a  reflexive one; and she is certainly not a  Republican apologist. Unlike Clarence Thomas, for example, Thernstrom acknowledges that merely insuring that blacks could register and cast ballots without being disenfranchised by discriminatory literacy tests and other gimmicks—which was all that the original Voting Rights Act specifically required—was not enough. It was also essential, she says, to insure the election of respectable numbers of blacks to office. In the South, entrenched white racists were determined to make blacks’ newly protected voting rights meaningless by devices such as submerging them in newly created at-large districts dominated by white racial bloc voting. And so race-based districting was the only way to make black votes count in the first decade or more after 1965. Thernstrom also shows why the extraordinarily intrusive federal supervision of state and local election rules required by Section 5 of the Voting Rights Act was initially essential to prevent white racists from finding new ways to disenfranchise blacks. “Only a federal sledgehammer could break open a southern political system barricaded against black entrance,” she writes.

At the same time, she expresses deep ambivalence about a historical irony that she sometimes seems to regard as a historical inevitability: the use of the Voting Rights Act to force creation of majority-black and majority-Hispanic districts would evolve into a federal mandate for unrestrained racial gerrymandering to elect as many minority representatives as possible at all costs, even absent proof of white racism. Such bias really is not the main problem with democratic representation today, as Thernstrom demonstrates. She cites massive evidence—including the statewide elections of minority senators and governors and, in 2008, the election of a black president—that districts no longer need to be specially rigged to insure racial fairness. The main problem now is that a left-right alliance of convenience has pushed race-based districting to extremes even as the need for it has diminished.

What harm could there be in maximizing black and Hispanic representation? Thernstrom has four compelling answers to this perfectly reasonable question: racial polarization; ideological polarization; limiting black and Hispanic political horizons; and instilling unwarranted pessimism in many blacks about the opportunities that are open to them.

First, such gerrymanders perpetuate racial polarization by balkanizing the electorate into black-dominated, Hispanic-dominated, and more numerous white-dominated districts that have been “bleached” by the removal of most, or at least many, black and Hispanic voters. This encourages politicians to appeal only to members of their own race, and puts the law’s imprimatur on the pernicious notion that it is only natural for voters to split along racial lines. In this way it perpetuates the poison of racial politics by encouraging minorities to practice the same kind of racial bloc voting that is seen as racist when done by whites.

Black and to a lesser extent Hispanic voters are more liberal than whites on average; racial gerrymandering almost guarantees election of the most left-wing of Democrats in majority-minority districts and the most right-wing of Republicans in bleached districts. The losers in this game are centrist politicians who do better in districts more representative of the electorate as a whole, and the plurality (if not majority) of voters who prefer centrist politics.

Third, racial gerrymandering “impedes black progress in significant ways.” Majority-minority districts have traditionally had to be as much as 65 percent black or Hispanic—given relatively low minority turnout—to guarantee election of black or Hispanic representatives. So majority-minority districts are outnumbered by the new bleached districts. As a result, racial gerrymandering has led to a net loss of Democratic congressional seats—an estimated twelve seats in 1994 alone—to Republicans who have little incentive to court mostly Democratic minority voters. For this reason, electing black and Hispanic representatives is not always good for black and Hispanic voters. The lack of competition in gerrymandered districts has also fostered apathy among minority voters, further depressing turnout. And the politicians who win those districts are often too far left of center to have much clout in legislative bodies or much chance in statewide elections.

And fourth, by thus creating “a black political class too isolated from mainstream political discourse,” Thernstrom remarks, racial gerrymandering has “further exacerbated the tendency of African-Americans to see themselves as a permanent minority separated from the American dream.” This, together with “the congressionally sanctioned narrative of an America still steeped in white racism,” feeds pessimism among blacks about their own opportunities for success, both in politics and in other realms. Such pessimism is unwarranted, Thernstrom insists. Witness the widespread certitude among black voters at the outset of Barack Obama’s presidential campaign that white America was too racist, manifestly or latently, to elect a black president. This proved spectacularly wrong when a higher percentage of whites (43 percent) voted for Obama in 2008 than for the 2004 Democratic nominee, Senator John Kerry (41 percent).

How did we come to this pass? And what explains the persistence of racial gerrymandering decades after the costs to the nation began to exceed the benefits?

Thernstrom answers these questions with a wealth of historical detail, which I find persuasive but less well organized than it could have been. By jumping forward and backward in time in order to organize her book on a topical basis—e.g., a chapter on Section 5 extending to 2006, followed by a chapter on Section 2 focusing on the 1982 amendments—she impedes the flow of her interesting narrative and falls into considerable recapitulation. But this is a relatively minor flaw in a masterful analysis.

Thernstrom writes that in 1964, “the majority of blacks remained unable to cast ballots in almost every Southern state,” due to legal barriers, social coercion, and violent intimidation, including the murders of civil rights activists. The Voting Rights Act changed that almost immediately, most dramatically in Mississippi, where black registration soared from 7 percent in 1964 to about 60 percent in 1966. The heavy lifting was done by the Justice Department’s Section 5 power, which defeated the ingenious ploys that Southern power structures had for many years used to disenfranchise blacks. Section 5 requires that racially suspect states and counties (“covered jurisdictions”) obtain permission (“preclearance”) from the Justice Department (or a special federal court) before making any change in voting qualifications or election procedures.

Section 5’s coverage was originally limited to Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and most counties in North Carolina, based on a statistical formula well-designed to identify places where blacks had been disenfranchised. “Preclearance” was granted only if the jurisdiction could prove the proposed changes to be untainted by racism. In 1969, however, the Supreme Court vastly expanded the scope of Section 5—initially intended mainly to protect blacks’ rights to register and cast ballots—in Allen v. State Board of Elections.

Mississippi, which Thernstrom calls “the most racist of all racist states,” had blocked blacks from being elected to local office by amending state laws to replace single-member districts, some of which had black majorities, with countywide elections. This insured that white bloc voting would doom black candidates to defeat. The justices responded by diving into the complex terrain of preventing covered jurisdictions from thus “diluting” black voting power. Thernstrom applauds this result. But she also laments it as a first step in the transformation of the act into a mandate to manipulate voting district lines in pursuit of the manipulators’ notion of fair apportionment of political power among racial groups. Meanwhile, the Supreme Court’s one-person-one-vote decisions essentially required the redrawing of every voting district in the country every ten years, with the Justice Department wielding veto power and increasingly committed to race-based districting.

Section 5 was originally set to expire the year after Allen, on the assumption that by 1970 such extraordinary federal oversight would no longer be needed to overcome massive white resistance and thus would become constitutionally suspect. But Congress extended Section 5 in 1970 and repeatedly thereafter—most recently in 2006, until 2031. “The emergency of black disenfranchisement has come to be treated as near permanent—even in an era when an African American can be elected president,” Thernstrom concludes.

In 1970 and in 1975, Congress also expanded the law well beyond its original purpose of combating racism in the Old South. The amendments banned all literacy tests nationwide, whether or not designed to disenfranchise blacks. They extended the law’s protection to Hispanic and other “language minorities”—despite the paucity of evidence of governmental efforts to deny them the right to vote—as well as less numerous Asian Americans, American Indians, and Alaskan Natives. They classified English-only ballots as language discrimination. And they changed the statistical trigger to extend Section 5’s coverage to Texas, Arizona, and scattered counties in other states that had nothing like the deep South’s egregious history of minority disenfranchisement.

The transformation of the Voting Rights Act into a racial gerrymandering machine got a big impetus in 1982. A massive lobbying effort by civil rights groups persuaded Congress to revolutionize the meaning of the previously insignificant Section 2, which unlike Section 5 covers the entire country. The 1982 amendments made a dead letter of a 1980 Supreme Court decision that required plaintiffs in voting rights lawsuits under the Fourteenth Amendment equal protection clause to prove intentional discrimination. By amending Section 2 to authorize lawsuits based on unequal “results,” Congress allowed voting rights plaintiffs to bypass the equal protection clause and its tougher burden of proof. The civil rights groups’ objective was to require states and localities all over the country—even in areas with no history of racist disenfranchisement—to draw as many majority-minority election districts as possible, in pursuit of proportional representation in all legislative bodies. And the groups got most of what they wanted, some from Congress, the rest from the courts.

The new Section 2 guaranteed equal opportunity for minorities “to participate in the political process and to elect representatives of their choice,” and specified that the number of minority representatives elected “is one circumstance which may be considered.” This language doomed at-large voting systems even if they were rooted in good-government reforms. It could also be seen as requiring pursuit of proportional representation based on race. That was where most liberals wanted to go, and also the most obvious easy-to-apply standard now that the law had gone beyond remedying real discrimination and had started apportioning political clout based on race. It is true that Congress added a compromise proviso stating that the new Section 2 did not establish a right for minorities to be “elected in numbers equal to their proportion of the population”; but civil rights groups, the Justice Department, and the Supreme Court brushed past the proviso, ignored the corresponding legislative history, and read Section 2 essentially as requiring pursuit of racial proportionality.

The key decision was Thornburgh v. Gingles, in 1986. Justice William Brennan’s majority opinion held that if the evidence established that whites voted as a bloc in a jurisdiction, and that black voters were politically “cohesive,” then the Voting Rights Act required drawing as many reasonably “compact” majority-black and majority-Hispanic voting districts as possible. And this formula could apply almost everywhere, at least in the South, especially when lower court judges followed a section of the Brennan opinion that commanded only a plurality of four. In that section Brennan redefined white bloc voting as being present whenever most whites vote down the candidates preferred by most blacks—even if the reason is political ideology, not race. This meant that if most whites vote Republican and most blacks vote Democratic, as is now typical across the South, this alone would establish both white bloc voting and black political cohesiveness. So Brennan’s opinion effectively required the drawing of as many “geographically compact” majority-minority districts as possible.

Some lower courts soon dispensed with the “compactness” requirement as “a relative term” (as one judge put it) that could be stretched to draw bizarrely shaped districts wherever possible to scoop in a safe majority of blacks (or Hispanics). Some of these districts stretched hundreds of miles and were little wider at many points than a highway, or used finger-like extensions to pull middle-class minorities who had moved to the suburbs into inner-city poor districts.

The Justice Department’s Civil Rights Division, collaborating closely with civil rights groups, used its vast Section 5 power to insist on heavy-handed racial gerrymandering to create odd-shaped districts, especially during the decennial redistricting after the 1990 census. In the process, the division brushed aside Supreme Court precedents ruling that the division had Section 5 power to pre-clear only changes in state or local rules that reducedminority representation. The division insisted instead on “max-black” changes to increase the number of majority-minority districts whenever district lines were redrawn. It even treated a state’s failure to draw the maximum possible number of majority-minority districts as proof of “a discriminatory purpose.” In short, federal bureaucrats were routinely intruding deep into state and local electoral processes, even absent evidence of racism, to demand the manipulation of district lines to elect enough blacks and Hispanics to satisfy de facto racial quotas.

This approach, which Thernstrom plausibly calls “lawless,” was in keeping with the ideology shared for decades by the vast majority of career lawyers in the Civil Rights Division. In Thernstrom’s words, they “see themselves as valiant defenders of civil rights holding the line against pressures from opponents of race-based districting and other race-conscious politics” and are quick to attribute such opposition to racism. The career lawyers’ politically appointed bosses in the first Bush Justice Department were glad to go along. By taking pro-racial-gerrymandering positions philosophically at odds with the anti-quota rhetoric that Republicans espoused in other areas of the law, these political appointees helped to engineer a net gain in districts designed for Republicans.

In fact, most state and local officials would have weighed race as one of many political factors if left to their own devices. But the Civil Rights Division’s power left them little choice but to make race the dominant consideration. The results included fourteen new black-majority House districts between 1990 and 1992, all but two in the South, many of them bizarrely shaped and surrounded by Republican districts.

In the early 1990’s, the Supreme Court began to resist the stampede toward racial proportionality at all costs that its own decision in Gingles decision had helped set in motion. This reflected the replacement in 1991 of the passionately liberal Thurgood Marshall by the arch-conservative Clarence Thomas. But rather than clarifying or overruling Gingles, the conservative justices chose—unwisely, in Thernstrom’s view—to advance a novel and problematic interpretation of the equal protection clause, one that put it on a collision course with the Gingles interpretation of the Voting Rights Act.

Justice Sandra Day O’Connor’s opinion for the 5-4 majority in Shaw v. Reno, in 1993, likened North Carolina’s bizarrely shaped race-based congressional districts to “political apartheid” and sent the case back to the lower courts to determine whether the districts were an unconstitutional effort to “segregate” voters based on race. Such extreme racial gerrymanders, O’Connor wrote, threaten “to balkanize us into competing racial factions,” contrary to the Fourteenth and Fifteenth Amendments’ goal of “a political system in which race no longer matters.” They also reinforce “the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”

The justices used a similar rationale in 1995, in Miller v. Georgia, to strike down the extreme racial gerrymander that the Georgia legislature had adopted—at the insistence of the Civil Rights Division—in redrawing that state’s congressional districts. Justice Anthony Kennedy’s majority opinion whacked the Civil Rights Division for “a serious intrusion on the most vital of local functions” and for having “expanded its authority . . . beyond what Congress intended” in order to impose an "implicit command that states engage in presumptively unconstitutional race-based districting." Subsequent decisions struck down racially gerrymandered congressional districts in North Carolina Texas, and Louisiana.

The conservative justices’ diagnosis was correct but their remedy was problematic, spurring cogent criticisms from thoughtful scholars as well as a firestorm of hyperbolic attacks from civil rights groups. As Thernstrom points out, a regime in which one powerful federal authority (the Supreme Court) finds states in violation of the Constitution for complying with the demands of another powerful federal authority (the Civil Rights Division) was not easy to square with the conservative justices’ professed respect for states’ rights and judicial restraint.

Meanwhile Justice O’Connor was becoming less reliably conservative in race cases. One result was that the Shaw-Miller line of cases fizzled out in 2001, when she switched sides and voted with the Court’s four liberals to uphold a racial gerrymander very much like the ones that she had assailed in Shaw and Miller. Her explanation was that in the new case, Easley v. Cromartie, it was not clear that race, rather than partisan politics, was the legislature’s predominant motive. The new majority’s new message was clear: if you want racial gerrymanders, camouflage them as partisan gerrymanders. And then the Court’s balance shifted yet again. In early 2006, President Bush appointed Samuel Alito, a consistent conservative, to succeed O’Connor. Now there are five justices who generally share Thernstrom’s view that “in a society that is genuinely open to black opportunity, colorblind principles have no moral competition.”

Huge bipartisan majorities of Congress adopted a dramatically different view in the Voting Rights Act amendments of 2006. Congress extended and amended Section 5 in ways that seemed to presuppose a vision of the South as a place where racism is “more subtle” than in 1965, but “the effects and results are the same,” in the words of the House Judiciary report. It said that states were poised to “effectively shut minority voters out of the political process.” The bill itself warned that without Section 5, minorities would be deprived of “their right to vote,” as if white supremacists were poised to take over the South again as soon as the Section 5 cop is off the beat

Civil rights groups thoroughly dominated the legislative process, spoon-feeding what Thernstrom calls “fear-mongering nonsense,” reflecting “deliberate blindness to current reality,” to the Republican-controlled Congress. It extended until 2031 Section 5’s tight, supposedly temporary federal control over every aspect of the election process in the South and other covered jurisdictions. Instead of taking into account the vast racial progress of all covered states, Congress made Section 5 even more intrusive. It overruled two Supreme Court precedents limiting the Civil Rights Division’s Section 5 powers. It kept under the federal thumb the same "covered jurisdictions" that it had designated decades before, while adding no new ones. And it ensured the continued unworkability in practice of the theoretical right of covered jurisdictions to "bail out" of Section 5 coverage if their racial records in recent years were clean. All this despite data suggesting that many covered jurisdictions have done a better job of getting minorities to the polls and elected as representatives than many states and other jurisdictions that have never been covered.

Congress adopted as its own fact-findings a massive record, compiled by civil rights groups with axes to grind, of incidents supposedly showing violations of minority voting rights in the South and other covered jurisdictions, and a need for an extended and fortified Section 5. Thernstrom draws on the work of other leading scholars who could hardly be called conservative to argue that there is less to these findings than meets the eye. New York University Law School’s Samuel Isaacharoff, for one, has stressed “the basic absence of a record of willful exclusion of the sort that could easily be marshaled in 1965 and even in 1982.”

Two major Supreme Court cases in 2009 illustrated the building tension over the Voting Rights Act between the newly conservative Supreme Court and the Democrats who had taken control of Congress and the presidency. On March 9, in Bartlett v. Strickland, the justices cut off a push by liberal groups to add a new mandate that states and localities manipulate district lines to draw black and Hispanic “crossover” districts in areas where it was not possible to draw more majority-minority districts. Crossover districts include sufficient minorities of black or Hispanic voters to form coalitions with like-minded white Democrats in order to elect the candidates preferred by blacks or Hispanics—all of them Democrats. “This position, if adopted by the [Supreme] Court,” writes Thernstrom, “would have completed the transformation of the Voting Rights Act from a law designed to protect blacks from racial animus in politics—providing equal political opportunity—to one intended simply to maximize African-American political power by whatever means, while augmenting Democratic Party power as well.” She applauds Justice Kennedy’s ruling for a 5-4 majority that while states are free to choose crossover districts, reading the Voting Rights Act as mandating such districts would “unnecessarily infuse race into virtually every redistricting, raising serious constitutional concerns.”

Later, as Thernstrom’s book was going to press, the conservative justices seemed poised to uphold a challenge to the constitutionality of Section 5, as amended and extended in 2006, which would have precipitated a congressional firestorm. But the June 22 decision in Northwest Austin Municipal Utility District v. Holder was doubly surprising. First, the four liberals (and all the conservatives but Thomas) joined Chief Justice Roberts’s majority opinion, including his assertion that Section 5 “imposes substantial ‘federalism costs’ ” and had become so problematic that it "raises serious constitutional questions." Second, and not coincidentally, eight justices (all but Thomas, who would have struck down Section 5) sidestepped these questions by ruling that the utility district was eligible to seek a "bailout.” The message to Congress was clear: we stepped back from the brink this time, but unless you make Section 5 less onerous on the many covered jurisdictions with no recent history of racist election rules, we may strike it down the next time.

Where this will lead remains to be seen. Meanwhile Thernstrom’s book is the best guide to where we are now, how we got here, and why it is a bad place to be.

The post A Bad Place To Be appeared first on Stuart Taylor, Jr..

The CIA director is now president of the United States. The legislative aide, William Barr, is now George Bush’s attorney general. And the former judge, Malcolm Wilkey, his ambassadorship behind him, is now working for his former law clerk, as “special counsel” conducting the politically sensitive investigation into the House Bank.

When Barr announced Wilkey’s appointment on March 20, the media took at face value Barr’s suggestion that his purpose was to ensure impartiality and independence from political pressure. They should have been more skeptical. And when the House bowed to Wilkey’s reckless rhetoric and his sweeping subpoena for the bank’s records, including 505 current and former members’ checks, the media figured the subpoena must be OK. It wasn’t.

To the contrary, it was an act of gross prosecutorial overreaching, an affront to the constitutional status of the House and the privacy of hundreds of individuals – no less so for the fact that the courts upheld it in light of the House’s craven capitulation. Wilkey’s subpoena was only the latest episode in the Justice Department’s aggressive pursuit of the case, which looks not only like a waste of law enforcement resources, but like opportunistic exploitation of the affair for political gain as well.

Wilkey has hung a cloud of criminality over the House with a succession of wildly injudicious statements – for example, that some House members “may very well be prosecuted,” that “a classic check-kiting scheme may have occurred,” and that the House Bank was comparable to “a failed S&L or a fraudulently operated BCCI.” Yet neither Wilkey nor anyone else has cited evidence that would support prosecution of a single House member for any crime involving the House Bank. His actions have assisted the Bush campaign by prolonging the public paroxysm over a House Bank “scandal” that has been a phony from day one, hyped by talk-show hosts pandering to the thirst for congressional blood. Even if Wilkey ends up with little to show for his investigating, some of the mud will stick to the 380 or so House members now seeking reelection. Wilkey keeps protesting virtuously that he wants to “clear” innocent House members – as though they are all presumed guilty until pronounced innocent. But nobody seriously suggested this was a criminal matter at all until Wilkey and other Justice officials did.

To deflect objections that Wilkey is engaged in a political fishing expedition, his top aide asserted in a May 1 court hearing that every overdraft written by a House member amounted to an “abuse” – which he compared to “money laundering.” This would be laughable were it not uttered by a federal prosecutor armed with potentially oppressive power. Among those thus classified by Wilkey’s office as “abusers” are House members such as Washington Democrat Jolene Unsoeld, whose one overdraft was in the amount of 38 cents, and Sidney Yates of Illinois, who unwittingly wrote four overdrafts, all on the same day, because the bank failed to credit a deposit in a timely fashion. As for those members who knowingly wrote overdrafts, hardly any “bounced” checks in the usual sense of stiffing the payee. They weren’t abusing anything but the bank’s willingness to float what were in effect interest-free loans from House colleagues who left large non-interest-bearing balances in the bank. No public money was ever lost or at risk.

A prosecutor on a vendetta, or one determined to justify his own overblown rhetoric, might be able to concoct some theory under which those who wrote big overdrafts might have violated one of the vaguer provisions of the criminal code. It’s also possible – even probable – that by rummaging through the financial records of hundreds of people Wilkey may stumble across a real crime somewhere. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone,” Attorney General (later Justice) Robert Jackson said fifty-two years ago. “In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm… that the greatest danger of abuse of the prosecuting power lies.”

The odds of finding something to pin on somebody are especially great when a prosecutor looks for dirt by rummaging through the private financial records of hundreds of people. That’s what top officials of the Nixon White House were counting on in 1972 when they conspired to get the Internal Revenue Service to see what it could find on 575 of Democratic nominee George McGovern’s staff members and campaign contributors. The IRS refused. Who knows what crimes the Justice Department might find if, for example, it seized upon the misuse of government planes as a pretext to fish through the records of everyone who works at the White House?

Wilkey’s conduct as Barr’s special counsel is not the only reason for suspecting his investigation has been exploited for partisan political reasons. There are also the peculiar timing and circumstances of the appointment. The first news that federal prosecutors were looking into possible criminality involving the House Bank came from Jay Stephens, the ambitious U.S. Attorney for Washington, on March 16, a few days after reports that White House Press Secretary Marlin Fitzwater had pronounced all former House members serving in the Bush Cabinet “clean” of overdrafts. Bad timing. The next day, to Stephens’s apparent surprise, Defense Secretary Dick Cheney and two other Cabinet members conceded they had written a bunch of overdrafts as House members. Three days later Barr took the investigation away from Stephens and put Wilkey in charge, citing “the unique circumstances and sensitivities of this matter.”

Wilkey has stressed that Barr told him he wanted to announce “as quickly as possible” the innocence of those who had committed no crime, and then “to go on with those who conceivably might have some criminal violation, and look into their affairs in a more intensive investigation.” Was this a noble effort to ensure impartiality? Or a slick damage-control operation aimed at speedy, pre-election exculpation of as many Republican big shots as possible, while letting a lot of Democrats and some Republican small-fry twist slowly in the wind? Consider the choices Barr made. One was to bypass the Ethics in Government Act, which invites (though doesn’t require) the attorney general to petition a special three-judge judicial panel to appoint an “independent counsel” – to conduct any criminal investigation in which the attorney general might have a “political conflict of interest.” Instead of entrusting the choice to the three judges, Barr entrusted it to himself. He also ensured that the “special counsel,” unlike a court-appointed “independent counsel,” would serve at his pleasure.

In choosing Wilkey, Barr got a man with an impeccable reputation for intelligence, integrity, and decency, but also with other, less conspicuous, traits well known to Barr: Wilkey was a politically active Republican long before President Nixon put him on the bench in 1970, serving as a delegate to the 1960 Republican convention and receiving a succession of political appointments. And as a judge he had a record of supporting executive power against Congress, and (in the 1979 case of U.S. v. Diggs) of finding criminal conduct by one House member that a wiser colleague, the late Harold Leventhal, saw as mere ethical sloppiness.

In Nixon v. Sirica in 1973, Wilkey wrote a dissent arguing that President Nixon could not be required to hand over the Watergate tapes. He contended that, in effect, the president was above the law: neither Congress nor the courts had any constitutional power to require any president, ever, to comply with a subpoena for presidential records. Wilkey’s lengthy dissent actually stated a broader proposition – one dramatically at odds with his subpoena of congressional records – by finding a “Tripartite Privilege” under which none of the federal government’s three branches could be compelled by the others to surrender its internal records. This was not the law, of course, as the Supreme Court later made clear. But if Wilkey really believed this, he might be a bit less imperious in using legal process to demand congressional records. Unless, of course, what he really believed in was executive power, and in protecting the president who appointed him.

Wilkey’s many admirers plausibly insist he would not knowingly be a party to a cynical scheme to manipulate a criminal investigation for political gain. Maybe his conduct can be explained by a bulldog determination to rummage to the fullest through everything Barr has asked him to investigate, combined with gross insensitivity toward the coequal status of the legislative branch. Whatever Wilkey’s motives, however, so far he has been doing a fair impression of a ventriloquist’s dummy for his former clerk. His actions have dovetailed perfectly with the political interests of the man who helped make him ambassador to Uruguay. Will Wilkey continue in this vein with a pre-election report to Barr “clearing” some current and former House members, including the three in the Bush Cabinet, while leaving the rest “still under investigation”? Stranger things have happened in election years.

The post The Bank Dick appeared first on Stuart Taylor, Jr..

An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.

The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased to be their own rulers.

The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.

SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.

Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.

Champions of liberal judicial activism have launched a ferocious counterattack. Justices William J. Brennan Jr. and John Paul Stevens retorted with pointed critiques of Meese’s so-called "jurisprudence of original intention." Brennan said it was "arrogance cloaked as humility" for anyone "to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." The real animus of advocates of this "facile historicism" he said, is a "political" agenda hostile to the rights of minorities.

Meese is certainly vulnerable to this sort of attack. He seems less a constitutional philosopher than a constitutional window-shopper, seeking to dress up his conservative political agenda as a principled quest for truth. His notion that judges can answer the hard questions raised by the Constitution without being "tainted by ideological predilection," simply by plugging in the intent of the Framers, is at best simpleminded and at worst disingenuous. When the Framers’ intentions are clear, but contrary to a result Meese wants, he ignores them. While calling for restraint in the exercise of judicial power – especially enforcement of civil liberties – he pushes to aggrandize executive power.

Along the way, he has said some revealing things. "You don’t have many suspects who are innocent of a crime," he told U.S. News & World Report. "That’s contradictory. If a person is innocent of a crime, then he is not a suspect." This from a man who was himself suspected of several federal crimes until a special prosecutor cleared him last year – a man who then billed the government $720,824.49 for his defense lawyers. (He later confessed to a "bad choice of words.")

Meese also assailed as "intellectually shaky" and "constitutionally suspect" the Court’s 60-year-old doctrine that most of the Bill of Rights, originally applicable only to the national government, was applied to the states by the 14th Amendment. Eminent Supreme Court justices criticized the doctrine too, but that was decades ago. When a Supreme Court ruling has "been affirmed and reaffirmed through a course of years," Lincoln said in 1857, "it then might be, perhaps would be, factious, nay even revolutionary, not to acquiesce in it as a precedent."

Nevertheless, the standard liberal retort to Meese is superficial. It caricatures his position as more extreme than it is. It ignores the long and honorable history of political attacks on judicial usurpation of power. Most important, its scorn for the "original intention" approach begs the question of where – if not from those who wrote and ratified the Constitution and its amendments – unelected judges get a mandate to override the will of the political majority by striking down democratically enacted laws.

For all his fumbling, Meese has spotlighted some of the real problems with the freewheeling judicial activism sometimes practiced by people like Brennan. Among these is a tendency to "find" in the Constitution rights (such as abortion rights) and social policies that can honestly be found neither in the language of the document, nor in the records left by those who wrote it, nor in any broad national consensus that has evolved since then. This is bad constitutional law even when you like the policies, as I sometimes do.

Meese deserves credit for bringing the deepest questions of constitutional law out of the law journals and into the newspapers. He surely has a political motive. But liberals who believe in democracy (anybody out there after two Reagan landslides?) should welcome the debate.

Too often liberals have taken the elitist view that ordinary voters are the natural enemies of civil liberties, and that only judges can be trusted to protect them. It is a shortsighted approach. As Justice Robert Jackson said four decades ago, "Any court which undertakes by its legal processes to enforce civil liberties needs the support of an enlightened and vigorous public opinion." Today most people confine their thinking about the Constitution to whether they like the policies the Court has decreed. The larger question of when courts should displace the ordinary policy-making role of elected officials gets little attention from anyone but law professors. Meese has begun to remind the public that in enforcing constitutional rights, federal judges are by definition restraining majority rule.

Within proper limits this is a noble function. Those who wrote the Constitution and its amendments saw them as bulwarks against oppression of minorities by a tyrannical majority. They specified certain fundamental rights shared by all Americans. They created special protections for minorities, especially blacks. They laid down these principles in majestic generalities meant to have continuing relevance in a changing society – freedom of speech, equal protection of the laws, due process of law. The federal courts – precisely because they are not answerable to the voters – are the logical bodies to enforce these rights against the majority.

Here, however, lies a difficult dilemma to which no wholly satisfactory solution exists. The Constitution being what the judges say it is, how can the judges be prevented from usurping the powers of elected officials and making political decisions? Meese’s admonition to stick to original intent is only a starting point. The Constitution does tell judges to enforce certain broad principles such as "freedom of speech," but if these principles are to be enforced at all in a changing society, judges must supply much of their meaning.

The trouble is that judges of all political stripes have gone beyond applying the Constitution’s principles to new circumstances. They have written their own moral and political values into it, pretending to have found them there. Sometimes they have "interpreted" the Constitution to forbid things explicitly allowed by its language.

TAKE BRENNAN, a hero to liberals – deservedly so – and Meese’s principal foil in the current debate. In his speech belittling "original intention" theorists, Brennan denied writing his own views into the Constitution. "It is, in a very real sense, the community’s interpretation that is sought," he said. "Justices are not platonic guardians appointed to wield authority according to their personal moral predilections."

But he gave these words a hollow ring when he explained why he always votes to strike down death penalty laws. He said they violate "the essential meaning" of the Eighth Amendment’s prohibition against cruel and unusual punishment by denying "the intrinsic worth" of the murderers who are executed. Now, Brennan knows perfectly well that those who wrote that amendment had no intention of banning the death penalty, which was common at the time and was explicitly recognized in the Fifth and 14th Amendments.

So whence comes his mandate for invalidating the death penalty? "I hope to embody a community striving for human dignity for all, although perhaps not yet arrived," he explained. Translation: my moral convictions on this issue are so strong I would override the laws adopted by the people’s elected representatives any way I could. Brennan admitted that most of his fellow countrymen and justices think the death penalty constitutional. As Judge Robert Bork has put it: "The truth is that the judge who looks outside the Constitution looks inside himself and nowhere else."

WELL, what’s so bad about that? If elected officials don’t have the decency to end the death penalty (or antiabortion laws, or minimum-wage laws, or whatever else offends you), why shouldn’t the judges do it?

The most important answer is that judicial legislation erodes democratic self-government. It converts judges into an unelected and illegitimate policy-making elite. Indeed, its more radical exponents evince a deep antipathy for the democratic process. But as Felix Frankfurter said, "Holding democracy in judicial tutelage is not the most promising way to foster disciplined responsibility in a people."

Defenders of judicial activism like to point out the vagueness of the Constitution’s words and the futility of the quest for consensus on original intention. "And even if such a mythical beast could be captured and examined, how relevant would it be to us today?" asks Harvard law professor Laurence Tribe. He dismisses as a dangerous fallacy the notion that judges can be significantly restrained by the Constitution’s text or history. The Supreme Court, he says, "just cannot avoid the painful duty of exercising judgment so as to give concrete meaning to the fluid Constitution."

Well, perhaps. But why can’t the Court do something many law professors barely deign to discuss? When the Constitution’s language and history provide little or no guidance on a subject, why can’t it leave the law-making to legislatures? Those who work so hard to prove that the Constitution cannot supply the values for governance of modern society seem to think it follows that judges must do it, with a little help from their friends in academia. But their argument rebounds against the legitimacy of judicial review itself. Bork poses a question for which they have no good answer: "If the Constitution is not law – law that, with the usual areas of ambiguity around the edges, nevertheless tolerably tells judges what to do and what not to do – . . . what authorizes judges to set at naught the majority judgment of the American people?"

The activist approach of amending the Constitution in the guise of interpreting it goes hand in hand with a certain lack of candor about the enterprise. A judge who acknowledged that his goal was to strike down democratically adopted laws by rewriting the Constitution would risk impeachment. So we hear a lot about "finding" in the Constitution rights that had somehow gone unnoticed for more than a century.

There is no reason to suppose that unelected judges, using theories concocted by unelected law professors, will make better policies over time than elected officials. Nor that they will make more liberal policies. Judicial activism is not a game played only by liberals. Conservative judges rode roughshod over progressive and New Deal legislation for several decades ending about 1937. "Never … can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day," Robert Jackson wrote in 1941.

Franklin Roosevelt changed that, ushering in an era of liberal judicial activism. Now the tables are turning again. Reagan and Meese are filling up the lower federal courts with conservatives and hoping to do the same with the Supreme Court. "I dream of a conservative Supreme Court striking down most federal legislation since the New Deal as unconstitutional," writes conservative columnist Joseph Sobran. Liberals may soon rediscover the virtues of judicial restraint, and find themselves urging a Reaganized judiciary to practice what Meese has been preaching.

BRENNAN and other liberal activist judges deserve the applause they have won for thrusting upon the nation some policies that were also triumphs of constitutional principle. Desegregation is one example. Protection of the rights of poor criminal defendants is another.

But liberal activism has gone to dubious extremes. Take the case of the man who approached a policeman in Denver and said he’d killed someone. The policeman told him about his rights to remain silent and have a lawyer. The man said he understood and proceeded with his confession, leading police to the scene where he said he had killed a 14-year-old girl. The sometime mental patient later told a psychiatrist that the voice of God had ordered him to confess. The Colorado Supreme Court threw out the confession on the ground that it was compelled by mental illness, and therefore involuntary. If he is ever tried, neither the confession nor, presumably, the other evidence ("fruits" of the confession) will be admissible. And he may go free.

Such judicial excesses are giving constitutional rights a bad name. Ed Meese is not alone in his outrage at judges who free criminals on the basis of technical rules that protect only the guilty, especially where they have little to do with deterring police abuse. The more this sort of thing happens, the greater the danger that the considerable public backlash may build to radical reaction.

There will always be cases in which judges must let criminals go free, and must defy public opinion, to vindicate the constitutional rights of innocent and guilty alike. Their ability to do so suffers when they squander the reservoir of goodwill they need for such occasions. "Liberty lies in the hearts of men and women," Learned Hand wrote. "When it dies there, no constitution, no law, no court can save it."

JUDICIAL creation of new constitutional rights can also be mistaken even when much or most of the public approves. The best example is Roe v. Wade, the 1973 decision creating a constitutional right to abortion and striking down all state antiabortion laws. Abortion is one of the toughest moral issues around. If I were a legislator I might vote (with misgivings) to allow free access to abortion in the early stages of pregnancy, as the Supreme Court did. But the Court is not a legislature, and there is no plausible basis in the Constitution for it to take this issue a way from the states, some of which had already legalized abortion before Roe.

Justice Harry Blackmun’s opinion "found" a right to abortion within the vague, general "right to personal privacy." He said these rights were in the Constitution somewhere, though he was not sure where – probably the 14th Amendment’s generalized protection of "liberty," maybe the Ninth Amendment. Blackmun (appointed by Richard Nixon) made no pretense that the Framers of these amendments intended to legalize abortion. History shows clearly that they did not. They were not thinking about abortion at all, although it was a familiar practice, illegal in some states, when the 14th Amendment was adopted. Nor do the words of the Constitution provide a shred of support for the detailed regulations the Court has drafted over time to curb state regulation of abortion.

Right-to-lifers are not the only people who deplore Roe v. Wade. Many liberal scholars – defenders of the pioneering Warren Court decisions so despised by Meese – have said the Burger Court went too far down the road of naked judicial legislation in that case. Among them are Archibald Cox, now retired from Harvard Law School, Dean John Hart Ely of Stanford Law School, and Dean Benno Schmidt of Columbia Law School, soon to be president of Yale. The abortion issue poses an excruciating clash between two moral imperatives: a woman’s right to personal autonomy and protection of the unborn. Why every detail of local, state, and national policy on such a fundamental moral issue should depend on the personal philosophies of five or six judges escapes them, and me.

The disregard for the written Constitution that Roe v. Wade embodies is also a two-edged sword. President Reagan said in his debate with Walter Mondale that an unborn child is a living human being "protected by the Constitution, which guarantees life, liberty, and the pursuit of happiness to all of us." Well, there he goes again, quoting the Declaration of Independence and calling it the Constitution. But he was close enough: the 14th Amendment says no state may "deprive any person of life, liberty, or property, without due process of law." For those who believe a fetus is a "person" and abortion is murder, as Reagan does, it is possible to conclude that judges should strike down any state laws that allow it. Farfetched? Well, what if a state excluded homosexuals or handicapped children from the protection of its murder laws?

NONE OF THIS means Meese’s own approach to constitutional interpretation is adequate. It isn’t. For starters, there is little evidence he has given the subject much thought. Beyond the high-sounding, platitudinous stuff about the Framers in the speeches his aides have written for him, he has had little specific to say about what he thinks their intentions were, or how broadly these intentions should be read. There is enormous room for disagreement here. The most important constitutional phrases, like "equal protection of the laws," are sweeping, vague, and only dimly illuminated by history.

Meese has tiptoed away from some of the few specific things he has said, including his attack on the doctrine that most of the Bill of Rights applies to the states through the 14th Amendment. It appeared in the written text of his July 9 speech to the American Bar Association. For some reason he omitted this point when he read the speech aloud. Moments afterward, reporters bearing tape recorders asked Meese whether he thought the Court had gone too far in applying the Bill of Rights to the states. "No," he responded. "I, well, I think this is something that’s been done in 1925 and since, and so I don’t think, ah, ah, I think, I do not have any particular quarrel at this stage of the game with what the Court has done in the intervening 60 years." Will the real Ed Meese please stand up?

Meese has stuck to his guns in denouncing as "infamous" major decisions upholding the rights of criminal defendants. One of his least favorites isMapp v. Ohio (1961), which extended to the states the "exclusionary rule" barring use of evidence seized in violation of the Fourth Amendment. Meese has said Mapp helps only "the guilty criminal," and has suggested abandoning the exclusionary rule in state and federal cases alike.

But Meese seems to have forgotten Boyd v. U.S., which Justice Louis Brandeis said "will be remembered as long as civil liberty lives in the United States." The 1886 decision was the Supreme Court’s first major Fourth and Fifth Amendment ruling. Unlike modern rulings, it was explicitly based on a detailed study of the Framers’ intentions. Boyd held that the Framers intended the Fourth Amendment’s ban on "unreasonable searches and seizures" to prohibit all governmental attempts to obtain a person’s private papers or other property – even by warrant or subpoena – and to forbid their use as evidence to convict him. Innocence or guilt was irrelevant to this determination. The Court’s confident assertion that this was the Framers’ intention was based on a reading of their natural rights philosophy, on 18th-century case law, and on the fury at sweeping British searches that helped fuel the American Revolution.

If Boyd were the law today, it would place far greater restrictions on police than any imposed by the Warren Court, which Meese has denounced for its "expansive civil libertarianism." The modern Court, unwilling to restrict official power so severely, has abandoned this broad vision. Its use of the exclusionary rule as a limited deterrent to police abuses is a pale remnant of the expansive rights the Court saw in the Fourth Amendment 99 years ago.

Meese’s contention that the exclusionary rule helps only guilty criminals is demonstrably false. Of course, exclusion of improperly obtained but reliable evidence helps only the guilty in the immediate case at hand. But if officials knew they could search everyone indiscriminately and use any evidence they found, a lot of innocent people would be victims of illegal searches. The only way to take the profit out of police abuses is to bar use of the evidence found. This means letting some guilty criminals go free. It is one thing to say this is too high a price to pay in cases in which police inadvertently cross the line between marginally legal and marginally illegal searches. It is quite another to let officials use any and all illegally obtained evidence, as Meese would.

Meese’s selectiveness in applying original intention is not limited to criminal law issues. If he really believed the Framers’ specific intentions are "the only reliable guide for judgment," he would have to condemn Brown v. Board, of Education, the landmark 1954 decision desegregating public schools. Anybody who did that today would be assailed as a segregationist crank. Meese recently applauded Brown as’ a case study in finding the original intention of the post-Civil War 14th Amendment. "The Supreme Court in that case was not giving new life to old words, or adapting a ëliving,’ ëflexible’ Constitution to new reality," he declared. "It was restoring the original principle of the Constitution."

That’s nice, but it’s not true. The Congress that wrote the amendment had no intention of outlawing segregation, as Raoul Berger, Alexander Bickel, and others have demonstrated. The same Congress segregated its own Senate gallery and the District of Columbia schools, and rejected various desegregation bills. What the Court saw nearly 90 years later was that state-enforced segregation, relegating blacks to inferior schools and other facilities, had made a mockery of the 14th Amendment’s central purpose: to put blacks and whites on an equal footing before the law. So the Court gave "new life to old words," to use Meese’s mocking phrase, and threw out segregation.

THE SAME CONGRESS that drafted the 14th Amendment also passed some special welfare programs for recently freed slaves and other blacks in the South. These were, in modern parlance, affirmative action programs involving racial preferences for blacks – sort of like the government hiring quotas that Meese has declared in violation of the 14th Amendment. Congress specifically excluded whites from some of these programs. Among them were federally funded, racially segregated schools for blacks only – a single program that contradicts the Meese view of the 14th Amendment’s original intention on segregation and affirmative action alike. These programs were passed over the Meese-like objections that they discriminated against whites and included some blacks who were not personally victims of discrimination. But Meese’s Justice Department, checking its slogans about judicial restraint at the door, has urged the Supreme Court to strike down every local, state, and federal government affirmative action program in the nation that prefers black employees over whites. Right or wrong, Meese’s position on affirmative action is at war with his preachings about strict adherence to original intention.

The same is true of his position on a lot of issues. Many of the powers that his Justice Department exercises daily – reaching into every community with its wiretaps, its informers, its subpoenas – would have horrified the Fram-ers. They feared centralized power more than anything but anarchy. They sought to limit severely the national government’s law enforcement powers, leaving to state and local authorities jurisdiction over the all but genuinely interstate crimes.

What would Meese do about the strong historical evidence that the Framers intended to deny the government the power to issue paper money, which they saw as a threat to propertied interests? What about their intent to bar the president from launching military expeditions without congressional approval, except to repel attacks on United States territory?

And what about the First Amendment’s religion clauses, as expounded by Joseph Story, a 19th-century justice whom Meese sometimes quotes on original intention? "The real object," Story said, "was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects." Meese buys the "infidels" part when he says the Framers would have found "bizarre" the notion that government may not favor religion over nonreligion. He ignores the rest, of course. Any official who argued today that only Christians are protected by the religion clauses would be drummed out of office, and properly so.

The broader point is that sticking to the Framers’ immediate goals as closely as Meese sometimes suggests is neither possible nor desirable. If Brown v. Board of Education was right, and it was, then a "jurisprudence of original intention" worthy of respect cannot mean enforcing constitutional rights only in the specific ways envisioned by the Framers. Such an approach would doom these rights to wither with the passage of time. The Framers’ central purpose of preventing abuse of minorities would be strangled by narrow-minded attention to their more immediate concerns. As for the possibility of updating the Constitution by the formal amendment process, this takes a two-thirds majority in each house of Congress and approval by three-fourths of the states. Such majorities could rarely be mustered to deal with new threats to the rights of minorities.

NEW technologies such as wiretapping threaten liberties the Framers enshrined in ways that they could not have imagined. And the changing nature of society poses threats that the Framers did not foresee to the constitutional principles they established. Take libel law. Million-dollar libel suits by public officials were not prevalent in the 18th century, and it is fairly clear that the Framers did not intend the First Amendment (or the 14th) to limit private libel suits as the modern Court has done. But they did intend to protect uninhibited, robust, and wide open debate about public affairs. And it seems to me proper for the Supreme Court to effectuate that broad purpose, in this litigious era, by imposing some curbs on libel suits.

Am I slipping into the kind of judicial revision of the Constitution I just rejected? I don’t think so. There is a middle ground between narrow adherence to original intention and freewheeling judicial legislation. As Chief Justice John Marshall said in a famous 1819 decision, the Constitution is not a code of "immutable rules," but rather the "great outlines" of a system intended "to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But it is for elected officials, as he said, to do most of the adapting. Judges should invalidate democratically enacted laws only, in John Ely’s words, "in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution."

THIS APPROACH will often set only loose outer boundaries around the Court’s options in deciding specific issues. It requires judges in close cases to draw fine lines. And it does not pretend to purge their moral and political convictions entirely from the process. But its recognition that the Constitution imposes some bounds on judicial power – limits fleshed out more clearly by the accumulation of precedent – would channel the growth of the law in a more principled and therefore more legitimate direction.

At the outer limits of legitimacy are those cases in which the justices read into vague constitutional phrases like "due process" an emerging social consensus that seems contrary to the particular intentions of the Framers. This goes beyond applying old principles to new circumstances, and gets into tinkering with the principles or creating new ones. I think the Supreme Court should do it in a few rare cases, nudging society to progress in the common law tradition of gradually evolving principles against a background of continuity.

Brown V. Board of Education was such a case. It struck at the heart of a great evil. Though departing from the particular plans of the Framers, it honored their deeper, nobler intentions. And though overriding the democratic process, it crystallized an emerging national consensus that legally compelled racial segregation was unacceptable in modern America. That is the difference between judicial activism and judicial statesmanship, and why most of the fiercest critics of judicial activism don’t dare criticize Brown today.

But the Court should attempt to lead only where the nation is prepared to follow. The creation of new constitutional values is a slippery slope, down which the courts should not travel too far too fast. At the bottom lies the kind of uninhibited and essentially lawless judicial legislation that Bork has justly assailed. The urge to do good is powerful, the urge to court greatness intoxicating. Judges should resist the sincere, but arrogant, assumption that they know best. Brandeis’s words, aimed at Ed Meese’s ideological predecessors, should also be heeded by his ideological adversaries: "The greatest danger to liberty is the insidious encroachment by men of zeal, well-meaning but without understanding."

The post Meese v. Brennan appeared first on Stuart Taylor, Jr..

The obscure Penobscot and Passamaquoddy tribes, total population, 3500, got yawns and titters as a reaction five years ago when they first claimed a right to 10 million acres of land and billions of dollars in trespass damages, and demanded that the Interior Department file suit as their trustee. The tribes said that the landóan area comprising more than half of the state of Maine, and larger than Massachusetts, Connecticut and Rhode Island put togetheróhad been taken from their ancestors during the late 18th and early 19th centuries in violation of a 1790 act of Congress. Most of the land is uninhabited forest owned by big paper companies and other large landowners including the state government; about 350,000 people live in the inhabited parts of the claim area. At first the Interior and Justice Departments refused to press the Indians’ claim for them. But after the Indians won a preliminary legal skirmish over the applicability of the 1790 act, the federal government began working activelyóif somewhat reluctantlyóon their behalf. The Justice Department now says the United States will file suit against the state of Maine in support of the Indian claim, unless it’s settled by June 1. The yawns and titters have given way to urgent pleas by Maine officials for Congress to bail them out. "A dark cloud of doubt and instability is hovering over the state of Maine" because of the uncertainty cast on land titles by the Indian claims, Maine Representative William S. Cohen lamented on the floor of the House March 1. Cohen and the rest of the Maine delegation have introduced a bill that would wipe out the Indian land claims by retroactively validating almost 200 years of land transactions that the tribes claim were illegal.

Both the litigation and the Maine delegation’s bill are being held in abeyance while Justice Gunter holds White House meetings with state and federal officials and the Indians’ legal team. It will be difficult to bring the tribes and the state to an amicable settlement. Gunter said last week that the parties are "just about as far apart as you can get" and that "feelings between the Indians and the state officials are running very high." The lawyers for both sides purport to believe that their legal positions are impregnable. Maine attorney general Joseph E. Brennan has adamantly refused to consider any negotiated settlement that would take land or tax dollars from the state or its citizens. The tribes are to negotiate about money, but insist that any settlement must include a significant land base for them. Gunter says he still hopes to bring the parties together in time, but he plans to make a recommendation to the President by July 1, including possible legislation, even if there is no agreement. Gunter also is negotiating with the parties in a similar suit by the Wampanoag Tribe asserting ownership of the entire town of Mashpee, Massachusettsóabout 17,000 acresóand has agreed to act as the President’s special representative in that case also if President Carter wants him to. The cloud cast on land titles in Mashpee has brought the town’s booming real estate industry, and most of the rest of its economy, to a grinding halt.

The most important date in the Maine controversy is July 18 of this year. For complex legal reasons, that is when the statute of limitation expires on these claims going as far back as 1790. Unless there is a settlement by July 18, or Congress extends the limitation, the litigation will go forward with the US Government participating on the Indian side, as it is required to do, as their legal trustee. This might well bring chaos to the Maine economy. Municipalities within the claim area have been unable to sell bonds since early last year because of the new uncertainty over title to the lands that constitute their tax base. If Justice actually files suit, Representative Cohen told the House, the state might be brought to its knees. "Banks will no longer finance home loans and mortgages; investment and commerical development will be terminated," federal economic programs will dry up and residents might refuse to pay taxes and mortgages, he predicted. State officials also warn darkly that once citizens begin to believe their homes are really endangered, anti-Indian violence might break out. The litigation, including appeals to the Supreme Court, probably would take five to 10 years, during which the possibility of an Indian victory would hang over the state’s timber-based economy like a Sword of Damocles.

As befits a case which the Justice Department has described in court papers as "potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs," both sides have brought in big-gun lawyers with demonstrated clout in Washington as the scene of the battle shifts from the federal district court in Portland to the White House and the halls of Congress. The tribes have enlisted the uncompensated assistance of Archibald Cox, the Harvard Law School professor who enjoys the most prestigious niche in the Watergate Wing of the legal profession’s Hall of Righteousness. Not to be outdone, Governor Longley of Maine has hired Edward Bennett Williams, Washington’s best known trial lawyer and owner of the Washington Redskins. Maine officials say they hired Williams because he knows his way around Washington. The Indians hope that Cox’s reputation as a "symbol of the integrity of the judicial system" will help them to stave off legislation that would deny them their day in court. Cox has stated that such an eleventh-hour legislative sabotage of the budding lawsuit would besmirch the national honor. Another old Watergate hand, Nixon lawyer James D. St. Clair, has been hired by the town of Mashpee, Massachsetts to find a way around the Wampanoag Tribe’s claim.

The real architect of the Maine tribes’ successes so far has been not Cox but a 33-year-old non-Indian lawyer named Tom Tureen. Tureen was first attracted to a career in Indian law when he was a Princeton undergraduate working for the summer with Sioux children in South Dakota. In 1967, between years at George Washington Law School, he worked as an assistant to Donald Gellers, an Eastport, Maine lawyer who was researching a rather modest claim the Passamaquoddy tribe had been trying to get the state to pay attention to for 10 years. The claim’s basis was a 1794 treaty between the tribe and the state of Massachusetts, of which what is now Maine was a part until 1820. The treaty purported to guarantee the tribe’s ownership of its reservation land in the northeastern corner of Maine, some 23,000 acres in all, in exchange for giving up all claim to the vast tracts that had once been the Passamaquoddys’ exclusive domain.

This old treaty had been long forgotten until 1957, when an old Passamaquoddy woman pulled it out of a box she kept under her bed and showed it to tribal leader John Stevens. Stevens knew that several thousand of the 23,000 acres had since been taken by the white man, leaving the tribe less than 17,000 acres in two locations. He drove with other tribal leaders to the state capital in Augusta to seek some help from the state attorney general, who was too busy to see them.

Not much else happened until 1964, when a commercial cabin owner won some land on the edge of the reservation from another non-Indian in a poker game, and tried to build cabins on the land. The Passamaquoddys thought the land was reserved to them by the 1794 treaty. A group of Indians staged a sit-in and got arrested. Donald Gellers, the lawyer they hired to defend them against criminal trespass charges, agreed to research their rights under the 1794 treaty. He was working on a claim for the alienated 6000 acres when he was arrested for possession of marijuana. Gellers’ legal difficulties, and his eventual departure for more hospitable climes, left the tribe in need of a new lawyer.

Tureen had spent the summer of 1967 helping Gellers with the Indian litigation. In 1970 he took on the whole case, originally as the one-man Indian Legal Services Unit of the federal Office of Economic Opportunity’s legal assistance project in Maine. Tureen’s research soon led him to a conclusion that the Indians and his predecessor never had dreamed of: the 1794 treaty itself was invalid and the Passamaquoddy and Penobscot Tribes still owned the millions of acres they had occupied in colonial times. After quitting OEO, Tureen joined the Native American Rights Fund, a foundation-funded group of Indian lawyers based in Boulder, Colorado. He persuaded Hogan & Hartson, a large Washington, DC, law firm, to help out on a nonpaying basis. Tureen and his new legal team spent more than a year developing the legal and historical basis for the claim and considering ways of pressing it. He presented his conclusions to the Passamaquoddy Tribe in late 1971, and got the go-ahead to see if he could batter down the wall of official indifference which had greeted previous efforts to assert the tribe’s rights. He has been battering ever since with singular success.

Tureen’s greatest triumph so far has been forcing the United States Government to take up the Indians’ cause. For both legal and practical reasons, it would have been next to impossible for the tribes to pursue the suit on their own. The tribes were caught in a bind: it was not even clear they had the right to sue on their own, but they couldn’t interest the government in suing on their behalf. Early in 1972 the tribes petitioned the Bureau of Indian Affairs to file suit for them. BIA recommended that a suit be filed, but the Interior Department squelched the recommendation. Meanwhile, the statute of limitations on an important part of the potential suit was due to expire in July 1972. So Tureen went to court in June and got from Federal District Judge Edward Gignoux a preliminary order requiring the government to file a "protective suit" before the July deadline. Tureen says this is the first time a federal court ever ordered the government to file a lawsuit. Two and a half years later, in February 1975, Judge Gignoux ruled that the federal government is legal trustee for all Indian tribes. The Federal Circuit Court of Appeals, in affirming Gignoux’s decision 10 months later, said the trust relationship at a minimum required the government to investigate and take appropriate action on any Indian claim that tribal rights had been violated. Neither the federal government nor the state of Maine, which had intervened against Tureen and the tribes, appealed to the Supreme Court, so this is now the law.

The legal theory of Tureen’s case is disarmingly simple. The Indian Nonintercourse Act, which was enacted by the first Congress in 1790 and remains on the statute books in substantially identical form today, states that no purchases, grants or seizures of lands from Indian tribes "shall be of any validity" unless "made by treaty or convention entered into pursuant to the Constitution"óthat is, unless approved by Congress. The Maine tribes claim their ancestors held "aboriginal title" to some 10 million acres in Maine in 1790, by virtue of possession since time immemorial; that almost all of the land was subsequently taken by Maine and Massachusetts in a series of transactions, including the 1794 treaty, that never were submitted to Congress for approval; and therefore that these transactions were invalid and the land still belongs to the tribes. The whites who have settled there over the past 185 years, and the large paper companies and family trusts that hold huge tracts for lumbering, have been trespassers. They are therefore liable not only to be ejected from the land but also to pay damages for all the years of illegal occupation.

The legal and factual issues presented by this claim have led the parties deep into a mire of obscure historical lore about the wanderings of long-dead Indians and speculation about the intentions of long-dead congressmen. Exactly which watersheds did the "riverine" Maine tribes exercise "aboriginal title" over by traversing them on their hunting, fishing, and berry-picking expeditions two centuries ago? Were the tribes dispossessed of their lands during the French and Indian War when Royal Governor Thomas Pownall declared war against them and, in 1759, planted a leaden plate at the head of the tide of the Penobscot River proclaiming "possession" on behalf of Great Britain? Did Congress in 1790 intend the Nonintercourse Act to apply to the 13 original states, or just to the western territories?

Such arcane inquiries may seem to be a rather peculiar way for a legal system to go about resolving the relative rights of 20th century Indians and whites. But behind the historical fine print that forms the technical legal basis of the tribes’ claims is the national sense of guilt about the brutal conduct of the white settlers who seized, stole, and swindled the continent from its Indian natives, relegated them to a few poverty-infested enclaves and more or less forgot about them. This feeling of guilt breathes vigor into the ancient but long unobserved legal doctrine that the federal government must act as a trustee to protect the best interests of Indian tribes. The Supreme Court has held repeatedly that the purpose of the Indian Nonintercourse Act was to obligate the federal government to protect a "simple, uninformed people" against the greed and trickery of the land-hungry state governments and pioneers. The theory was enunciated most forcefully by Chief Justice John Marshall, who described the status of Indian tribes as that of "domestic dependent nations" whose title to their aboriginal lands was good against all unless and until the sovereign Congress decided to extinguish it, and whose "relation to the United States resembles that of a ward to his guardian." Meanwhile, the reality was that of President Andrew Jackson, who championed the conquest and subjection of the Indian tribes in the West, left the already subjected Eastern tribes like the Passamaquoddys and Penobscots to the tender mercies of the state governments, and bid John Marshall to enforce his pro-Indian decisions if he could.

Now, in an era when the executive branch has become accustomed to doing what the courts tell it to do, the Indians are calling in their debts. After years of hearing from the white establishment that minorities should eschew disruption and politely seek redress for their complaints by working within the system, they are working within the system with a vengeance. And their advocates do not apologize for dredging up memories of ancient wrongs to threaten the land ownership of white citizens who were not responsible for these wrongs. "These folks never should have been poor," Tom Tureen says. "The current generation is very directly affected by what happened 180 years ago. The whole framework of the Nonintercourse Act was set up so that they would be protected. There were specific promises to these tribes from George Washington. They never should have had to grovel at the feet of the state."

Maine attorney general Brennan sees things differently. "The people up here think the thing is outrageous and bizarre. The more I get involved in this case the more I get irate at the United States government. They’ve pretty much agreed that if there are any wrongdoers they died 150 years ago. I can’t understand how the Interior Department could recommend ejectment of 350,000 innocent people from their land." Brennan does not doubt that "this Country owes something to its native Americans," but he vehemently denies that the government or property owners of Maine owe any such "moral debt." If the country is going to pay its "moral debt" to the Indians, Brennan reasons, the blacks and other minorities will be able to assert an equally compelling entitlement to redress. "We cannot create a system of perfect historical moral accounting that requires monetary payment for asserted ancient wrong." So the resolution of the Maine case should be left to the strict application of legal doctrine, he says, without muddying the waters by discussions of ancient wrongs.

But experience teaches that an ounce of legal leverage is worth more to the underprivileged in this country than a ton of moral entitlementóparticularly when those demanding redress are few enough that the federal government can do them justice without spending more than, say, the cost of a B-1 bomber. It may be hard for many to see why, as a matter of simple justice, the 3500 Indians in northern Maine have any more coming to them than the millions of blacks in the nation’s ghettos. But any argument that a little social justice for a few of our history’s victims should be denied until we are ready to open the federal treasury to all of them has a rather unsavory Catch-22 logic to it. And the fact remains that the tribes seem to have a pretty strong legal case, quite independent of whatever moral force their claim may or may not have.

The most unsettling thing about the Maine tribes’ claim is that the landowners against whom they say the law affords them a remedy are innocent of any wrongdoing. There are no living wrongdoers in the caseóunless the state government and its taxpayers and the contemporary stockholders of the large paper companies which bought huge tracts for a song 100 years ago are "guilty" as corporate bodies. The Indians, the justice Department, and the state officials seem to agree that the burden of any settlement ought to be assumed primarily by the federal treasury, although Tureen says the state and the large landowners should expect to lose some land. After all, it is the federal government that has neglected its trust responsibility to the Maine tribes for the past 187 years, and that is best able to redress a larger wrong committed by the nation as a whole. And of course the federal government has more money than anybody else in sight.

But the tribes have no statutory basis or favorable precedent for suing the federal government. Their only means of seeking to turn their legal rights into the land and money they want is to use what rights the law does give them to take as hostages the landowners in the claim area, and to hope that before the litigation reaches a showdown and the relations between the Indians and their neighbors get ugly, Congress will be stirred from its slumber, drown the claims in federal money and, along the way, buy a little social justice.

Tureen asserts that Judge Gignoux’s decision settled the only really difficult legal issue in this case, and the graceful thing for the state and the big landowners to do now would be to recognize their legal predicament and sit down to negotiate a settlement. Maine attorney general Brennan says there are other legal issues that make the Indians’ claim so weak that the government needn’t intervene on their behalf even though it is their trusteeóa battle he apparently has lostóand that certainly make it unnecessary for the state and its non-Indian landowners to settle with the tribes.

Brennan argues, for example, that as of 1790, the date of the Nonintercourse Act, the tribes were ragged bands of only a few hundred Indians who already had lost most of their aboriginal territory by conquest, white settlement, and a series of agreements; that all pre-1820 transactions with the tribes were implicitly ratified by Congress when it admitted Maine to the Union in 1820 and approved the terms of the Compact of Separation between Maine and Massachusetts; that the federal government has implicitly recognized non-Indian ownership of land in the claim area by transactions such as purchasing land for post offices and the like; and that in any event the Nonintercourse Act was never intended to apply within the 13 original states. Brennan also has raised arguments based on the common law doctrines of laches, which bars assertion of legal rights that have been neglected so long that to raise them would be unfair; and adverse possession, which bars any challenge to the title of someone who has occupied land for a long enough time under a claim of ownership. These doctrines are the legal embodiment of the common-sense perception expressed by many Maine residents that you can’t turn the world upside down and penalize thousands of innocent landowners to undo long-forgotten legal wrongs. But a federal court in Rhode Island last year, in a case involving a Nonintercourse Act claim by the Narragansett Tribe to 3200 acres in Charlestown, held that such common law defenses do no apply against an Indian land claim based on federal statutory law.

In January of this year the Interior Department recommended to the Justice Department that ejectment actions be filed on behalf of the tribes against all occupants of some 10 million acres of Maine, including the heavily populated coastal regions. The Justice Department conducted an independent review of the claims. In court papers filed February 28, it said that if an out-of-court settlement is not reached it will sue for a smaller area, comprising about five to seven million acres, proceeding first against the state and a few large landowners. Justice said the tribes have agreed to give up most of their claims against homeowners and small property owners, if a monetary claim against an "appropriate sovereign" could be substituted for those claims. So far neither the federal government nor the state of Maine has agreed to substitute itself.

Congress has at least three options in attempting to resolve the Maine claims, aside from doing nothing and letting the litigation proceed. First it could attempt simply to scuttle the claims by passing a law retroactively validating all prior conveyances of land from the tribes. That is what the Maine congressional delegation’s bill appears to be designed to do. The Supreme Court has held that Congress may extinguish aboriginal title whenever it pleases, so it is apparently within the power of Congress to scuttle the tribes’ land claims. But Tureen claims that the due process clause of the Fifth Amendment of the US Consitution makes it impossible for Congress to wipe out the tribes’ claims for trespass damages. The legal question appears to be an open one. If Tureen is right the Indians might get the land anyway, by getting a huge trespass judgement then levying execution on the losing defendants’ real estate.

If Congress chooses to be just a bit more responsive to Professor Cox’s conception of the national honor, it could enact a law wiping out the land claims, but authorizing some court or commission to calculate the monetary value of the tribes’ claim and to pay the tribes compensation out of the federal treasury. Tureen doesn’t like that solution either. He says it probably would result in long delays and little more than token compensation to the tribes.

The settlement model the tribes apparently prefer is that of the Alaska Native Claims Settlement Act of 1971, in which Congress awarded 40 million acres of federal land and almost a billion dollars to 70,000 Eskimos, Aleuts, and Indians to compensate for the wrongful taking of their lands years before. One problems with doing something like this in the Maine case is that the federal government has no substantial land holdings in Maine. But the government could get the land from large landowners, either voluntarily or by eminent domain, compensate them for it and give it to the tribes.

Arriving at a fair monetary settlement would be a task of mind-boggling complexity. Any settlement in Maine probably would be a model for settlement of other Nonintercourse Act claims brewing in Oneida, New York (300,000 acres claimed), Kent and Ledyard, Connecticut (2300 acres), Martha’s Vineyard (3000 acres) and Rock Hill, South Carolina (144,000 acres), as well as the Mashpee and Narragansett cases. No very meaningful figure for the value of the Maine tribes’ trespass claims has been suggested. The uninhabited portions of the 10 million acres of land they claim are valued in the range of $100 an acre, but the value of the inhabited portions is incalculable. If the suit ever went to trial, the landowners doubtless would claim that if the Indians recover the land they should pay restitution for all improvements to the property (buildings, etc.), as the defendants have asserted in the Mashpee case. Tureen has on occasion estimated the total value of the tribes’ claims, including land as well as trespass damages, at $25 billionóa figure that is no more wildly inflated than the typical initial damage estimate of the plaintiff in any modern lawsuit. That would give each Indian about six million dollars. The Justice Department’s 1972 "protective complaint" asked for $300 million in damages from the state of Maine alone; a department lawyer says that figure was "picked right out of the air."

The Alaska settlement might suggest a starting point. It amounted to roughly $15,000 and 600 acres per Indian. Multiplied by 3500 Passamaquoddys and Penobscots, that adds up something over $50 million and two million acres. Whether the Maine tribes would give up their gargantuan claim for a settlement of that size remains to be seen. Tureen points out that the Alaska natives, unlike his clients, had no claim for trespass damages; moreover, the tribal memberships may total as much as 5000 after the scent of money brings long-departed members who can prove their ancestry back to the fold. Any land and money that come out of this lawsuit or settlement of it will go to the tribes, and not to individual Indians. The tribal councils will be able to decide what to do with it.

To the Passamaquoddys’ white neighbors in Washington county, many of whom are as poor as the Indians or poorer, a settlement of such magnitude will seem like an unjustified windfall. But our system of legal rights bestows windfalls on a lot of peopleóthe heirs of rich men and women, the divorced wives of rich men, the owners of land on which oil is discovered. There may be a certain justice, at least, if for once the legal system confers a windfall on people whom our society for hundreds of years has relegated to a position of penury and humiliating dependence. The Maine tribes are not as poor as they were a decade or two ago. They have learned the art of federal grantsmanship, and an influx of money and jobs from federal housing and other programs has cut their unemployment rate to something on the order of 30 percent. The state also contributes substantial social service aid. People on their reservations don’t starve any more. But what the tribes say they want is something on the order of the independence and dignity that would still be theirs if their lands had not been taken away from them in the first place.

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