Jonny Steinberg's "The Number" and the meaning of a constitution of no slogans

Jonny Steinberg's remarkable book The Number illustrates -- in virtuoso style -- the kind of sensibility that that a constitution of no slogans would rest on. His story of Magadien Wentzel, a senior member of the prison gang known as the 28s, confounds almost any expectation.

Oppression causes crime, it's often said, and rightly; but as Steinberg rightly observes, crime is a particularly conservative response to oppression. Criminals leach off of any order, and so they are not necessarily friends of the other victims of the order from which they steal. But the prison gangs had politics, anti-apartheid politics, and their hopes that their own liberation would follow from South Africa's were bitterly disappointed. All this is a useful reminder that "the oppressed" are far from a uniform mass, and that in fact among the oppressed are both victims and oppressors -- and that these two categories may often overlap, as poor people turn to crime against other poor people as their path to some degree of power and wealth.

What is more startling, however, is to learn that the Number -- actually three separate groups, the 26s, 27s and 28s -- had existed as long as South Africa had been a nation, and that their existence rested on ritual and mythology, all generated, it seems, in or near prison. Leaders of the Number had uniforms, weapons and a sacred text written on the hide of a bull -- but all of these implements existed only in their minds. They also had memories, or fantasies, of a golden age of the Number, some decades back from the tarnished present. In short, these oppressed men, who were vigorously engaged in oppressing other prisoners and carrying on a choreographed, violent-but-usually-not-lethal interaction with the guards, were also engaged in social ordering and myth-making. They were dangerous criminals, and creators of a society. And their odd form of order was itself threatened, not so much by the warders or by the end of apartheid as by the rise of drug gangs on the outside that for strategic reasons of their own appropriated the symbolism shaped by the Number.

What could a just society possibly do about the Number? What, especially, could such a society do if it was -- as South Africa was -- terrified by an explosion of crime? It is hard to see the legal framework big enough to speak meaningfully to this world.

But in fact the book is not just about the capacity of a gang society to evolve and persist, like antimatter in a universe of matter. For it is also, and above all, the story of the incompleteness of that gang society, and the life of Magadien Wentzel, who became a leader of the Number and then left it because he wanted to have a life that had meaning. That turned out to be almost as intractable a challenge for him as dealing with the Number might be for South Africa: filled with dreams of helping steer others away from crime, he found himself without money and without employment, living in isolation and dependent on the generous of people whose generosity faded.

And yet he did not, at least in the time that Steinberg's book covers, succumb. This one man, in fact, seems to have found a break -- because in the end Steinberg could not bring himself to profit from Wentzel's story while Wentzel himself was trapped in poverty, and so he signed over 10 % of the book's royalties to Wentzel himself. The book won a prize, and readers, and I hope that means that Wentzel himself has found opportunities -- and not been undercut by them. It is moving to read Wentzel's own Afterword, with which the book ends, and its last words, "May God be the judge of this book." Perhaps every book seeks the moral seriousness that would deserve a standard so profound, but certainly few books end with quite this striking a call for commitment.

And a constitution of no slogans? The judges and lawyers shaping a constitutional order of this sort would resist easy generalizations (from "poverty causes crime" to "criminals are irretrievable"). They would recognize the complexity of even a single life. They would not be blithely idealistic, but they would not give up on hope either. And they would recognize that they themselves are, inescapably, part of the story that they study and tell.

A constitution of no slogans

A thought on Christmas Day:

Life is more complex than we might have expected. Human beings turn out not to share a uniform genetic heritage -- some of us are the product of interbreeding with Neanderthals, others (according to this week's news reports) of interbreeding with a hitherto unknown offshoot of humanity called the Denisovans. Human beings are also notoriously plastic -- our children are born knowing almost nothing, and take 20 years to achieve adult knowledge, while simpler creatures are fully equipped for their lives much more quickly, but the result is that we can adapt to far more varied and challenging circumstances than we could if we were born set in our ways. Even in adulthood we are constantly shaping the people we ourselves will become, and so we can become many things. William James said something to the effect that we should choose those beliefs that best serve our interests, and -- though the process is surely not so willful or simple as that -- we do have some ability (sometimes too ready an ability) to follow his advice.

All of which says that the sphere of fixed certainties is pretty modest. That doesn't leave us rudderless, but it suggests the need for a certain measure of restraint as we encounter the complex realities of how lives work. Just to pick up where my last post left off: how does customary law work? What are the currently governing rules of customary law? What are people's actual customs? These are questions with no simple answers, and there are likely many more such difficult questions, in the United States as in South Africa. The beginning of wisdom, I think, is to acknowledge how much we don't know, and how much may indeed never be settled, and to try to listen as hard as possible to people so that we can understand their actual needs and desires and principles as well as we can. I know that there is no listening without framework, but there are more and less open frameworks, and we need to try to be as open as we can. In that sense, though we need a constitution that protects against the real dangers of oppression and needless suffering that are part of life in society, we also need a constitution of no slogans.

On figuring out what customary law is, especially when it's changing

(With apologies for two months of non-blogging!)

Back from a conference in Cape Town honoring Martin Chanock for his distinguished work on South African legal history, customary law and legal education, I'm realizing that the task of making customary law part of a Western-style legal system -- as South Africa's constitution envisions -- is truly complex.

If customary law were written down, of course, it would be easy to apply it in the same courts that apply common law principles, statutes, and constitutional requirements every day. But if customary law is written down, it risks becoming detached from actual custom -- as indeed happened, notoriously, as whites created a body of customary law adjudication and legislation in the 19th and 20th centuries.

So, too, if customary law were definitively pronounced by a particular person, such as the chief, or by a particular body, such as a council of elders, then its contents would be readily determinable. But if customary law truly is the law created by custom, then it is entirely possible that even if custom at one time conferred such law-pronouncing power on the chief or the council, the custom has now shifted -- and because of that shift, the chief or the council no longer actually have customary sanction for declaring what customary law is.

Or another variation: Suppose that the chief, for instance, is still empowered by custom to make rulings about the content of customary law. But custom also makes clear that the chief's task in this process is not to make the law he (or she) prefers, but to discern the law that has evolved from the customs of the community. How should the chief go about doing this? At this point the chief is in something of the same position as the Western-style judge, though the chief has the substantial advantage of actually being closely familiar with the customs of the community (and the potential disadvantage of having his/her own personal or political interests quite directly at stake): for each of them, the problem is that the customs in question may be unclear or may be in the process of changing.

If a community at one time held a custom of, say, male primogeniture in inheritance, how would someone -- its chief, or a judge of the South African High Court -- tell whether that custom still held, and still had the force of law? If most of the community no longer adhered to the custom, would it no longer have the force of law? Perhaps the answer is obviously yes (that it would no longer be law), but what if most members of the community still declared the point to be a customary rule, and tried to cover up the moments when they themselves departed from the rule? Or what if most members of the community said they weren't sure if the custom was still part of their law, while the rest of the community asserted that it definitely was? Or what if current members of the community were divided in their views, but the chief, or the judge, was convinced that one view fitted much better with the accumulated history of the group than the other view did?

I imagine there are many variations on these questions, variations that are actually arising in real South African communities, and perhaps in many other nations where customary law remains important. (There may well be analogous questions in connection with the customary law of nations -- but I won't try to pursue that issue here.) There don't seem to be any obvious solutions, least of all for judges who aren't very familiar with the customs whose actual content and legal force they are attempting to grasp. It would be convenient if the problems could simply be handed over to traditional leaders such as chiefs, but that solution is logically a circular one if the extent of the traditional leaders' authority is itself one of the controverted issues of customary law. It's also problematic to the extent that chiefs' power, even if uncontroverted in terms of tradition, is subject to constitutional challenge for its inconsistency with constitutional liberties now guaranteed to South Africans in every context of their lives.

Perhaps the best that can be said is that a society committed to honoring customary law must begin by paying very close attention to it, and to the various views of it that different members of customary communities express. A good deal of South African law constitutional law now seems to be aimed at generating that kind of close attention to the actual views of actual, previously unheard, people -- and that effort is exactly on target.

Clear and unclear laws, and lawyers' role in interpreting them

How should the government's lawyers interpret the law?

The more the government's officials and actors feel bound to stay within the law, the more important this question of interpretation becomes. As I mentioned in a post yesterday, Jack Goldsmith saw the Bush Administration's most senior lawyers as appalled at the idea of the President engaging in deliberate violation of the law. Jane Mayer's account of these years, which I discussed in an earlier post, suggests that some weren't quite so anxious on this score. But Goldsmith adds an important institutional point: the sheer number of lawyers contributes to the momentum of legal compliance. He notes that "[i]n the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists." (The Terror Presidency, at 91).

So, then, how should these lawyers interpret the law? It is hard to disagree as a general matter with Goldsmith's evident view that we do not want our government caught in "a paralyzing culture of risk-averse legalism." (94) But consider, for instance, the possibility that the government's use of lethal force in a particular situation (say, in controlling crime on a New York street) might amount to murder. If there is doubt about whether particular acts might constitute murder, we might say, we want the government to stay clear of them altogether. We routinely say, similarly, that it is better to let 10 guilty people escape conviction than to wrongly convict a single innocent defendant.

It is true that even in the context of criminal justice (even the ideal version of criminal justice, let alone the gritty reality playing out every day in streets and jails and courtrooms), we do not want "a paralyzing culture of risk-averse legalism." No one could want that, as such. What we want are protections that effectively prohibit wrongful acts while effectively permitting lawful ones. But in fact the law may not provide clear and unambiguous rules, and sometimes it arguably shouldn't -- when vaguer and more contextual "standards" better implement the law's purposes. In any event, when the law isn't clear and unambiguous, lawyers can't say that it is.

This point cuts both ways. Just as there may not be clear authorization in the law for acts that soldiers or intelligence agents believe are necessary, so there may not be clear prohibition in the law for acts that defenders of human rights say are abhorrent. Even saying we should be risk-averse about murder is not such a simple matter, because what is murder in times of peace may well be lawful killing in times of war, and whether we are in times of peace or war may well be a cloudy question. Questions like these in fact plagued the Clinton Administration, as it contemplated trying to kill or capture Osama bin Laden. Goldsmith appears to criticize "the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must pose before the CIA operation could commence." (95) But these were actually hard questions, and clarity about them may have been unattainable.

Goldsmith, I think, believes that government should be prepared to take risks and to protect the individual risk-takers -- rather than, for example, encouraging CIA agents "to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations." (95) But he also surely favors clarity where clarity is achievable, and believes that some clarity can be found in the law. Moreover, he is well aware that the agency he briefly led, the Office of Legal Counsel, has a special role here: if it says that some action is legal, then it is just about inconceivable that someone who acts on the basis of that advice can be successfully prosecuted for what he or she has done. OLC has "the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws .... the power to dispense get-out-of-jail-free cards." (97)

So, then, what interpretive approach should those who can dispense get-out-of-jail-free cards follow? More on that in coming posts.

Staying within the limits of the law -- and what are those limits?

In a book full of startling details, one of the most striking incidents in Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration (2009, 2007), is the story of his raising the possibility that the President might simply disobey the law as part of the fight against terrorism. (80) The idea of conscientious Presidential lawbreaking is certainly troubling, but (as Goldsmith explains at 80-81) it is not necessarily disrespectful of the rule of law, if the President in effect says to the country, "Here is what I've done because I felt you needed it done. If you disagree, I stand ready to suffer the consequences."

But the reaction of Goldsmith's counterparts in the Administration was simply stunned amazement. "Gonzalez and Addington [counsel to Bush and Cheney, respectively] looked at me as if I were crazy." (80) They were not about to have President Bush deliberately violate the law. This from an administration notorious for having, as it seemed to many (including me), disregarded the bounds of law repeatedly! But that's the point -- the Bush Administration saw itself as bound by law, but (overstating a bit) declined to see any boundaries in the law.

Putting that point less pejoratively, Goldsmith writes that "Michael Hayden, former NSA Director General and now [in 2004] the Director of the CIA, would often say that he was 'troubled if [he was] not using the full authority of the law' after 9/11, and that he was 'going to live on the edge,' where his 'spikes will have chalk on them.' Hayden's view permeated the executive branch after 9/11, and in light of the clear public demand to act aggressively to stop the terrorist threat, I agreed with it. My job was to make sure the President could act right up to the chalk line of legality." (78)

Goldsmith believed that "even blurry chalk lines delineate areas that are clearly out of bounds" (78), and in his short tenure as head of the Justice Department's Office of Legal Counsel (OLC) he courageously withdrew a number of OLC opinions that he concluded had breached those bounds. But it seems fair to say that the gist of the torture opinion that John Yoo wrote and Jack Goldsmith withdrew was that in the end the various legal restraints thought to bar the President from authorizing torture were either so full of holes or so beyond constitutional authority that in fact the President's power was unlimited.

My impression is that once it is important to find an argument for a legal proposition, there is almost always an argument to be found. In fact, once money and time are applied to a legal problem, the chances are that many arguments can be found. That doesn't mean those arguments are correct, or convincing, but they are within the bounds of plausibility. Indeed, if the bounds of plausibility are simply the bounds of what conventional argument will accept as worth saying, the sheer repetition of a claim by people with prestige and influence is likely to expand the conventional bounds enough to bring the claim within them. All of which poses the question of whether Goldsmith was right that there really were chalk lines that separated what was lawful from what was unlawful. To our good fortune, Goldsmith felt there were and acted on that conviction; but was he right? That's a subject for posts to come.

Clinical Theory Workshop 25th Anniversary Conference

I can't resist reporting here that this conference -- an anniversary party for the Clinical Theory Workshops, which I've chaired for 25 years -- took place last weekend, October 1-2, 2010, at New York Law School. The theme was "Twenty-Five Years of Clinical Scholarship: What Have We Learned, and What Should We Work on Next?" Possibly that question wasn't completely resolved, but the discussions along the way were great. You can see much more information about the conference at the New York Law School conference webpages.

I'm so grateful to everyone -- planners, presenters, facilitators, attenders (not to mention actors, songwriters and other mockers who took part in a gentle roast of yours truly) -- for all the effort they put into the conference. And the workshops, 25 years old and going strong, are the work of all of us who attend and have aimed over the years to build a forum that is serious, supportive, constructive and fun all at the same time. Thank you to all! Borrowing from the song lyrics that Bob Dinerstein wrote for this weekend, don't say nothin bad about our workshop!

The incomplete Commander-in-Chief power, as seen in 1805

Here's an interesting old statute, enacted by Congress in 1805: "An Act for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction." Act of March 3, 1805, ch. 41, 2 Stat. 339. The first section deals with apprehending alleged violators of federal laws who are on foreign armed vessels in US ports. It permits a federal court to issue a warrant for a marshal to arrest the alleged wrongdoer. Then it continues:

"And if the said marshal shall deem the ordinary posse comitatus insufficient to insure the execution of the said warrant, he shall apply to the said judge or justice, who shall immediately issue his order, directed to any officer having command of militia, or any officer having command of regular troops, or of armed vessels of the United States, in the vicinity, requiring him to aid the said marshal with all the force under his command, or such part as may be necessary in executing the warrant aforesaid. And the said marshal conforming himself in all things to the instructions he shall receive from the President of the United States, or from any other person authorized by the President, shall first demand the surrender of the person charged with the offense; and if delivery be not made, or if the marshal be obstructed from making the demand, he shall use all the means in his power by force and arms, to arrest the offender, and all others who are with him, giving him aid and countenance in evading the arrest ...."

Section 2 of the statute gives a similar power to state governors, when seeking to enforce state warrants. It provides that "it shall be lawful for the governor or other supreme executive officer of the state in which the said offense shall have been committed, upon due proof thereof, and upon his being satisfied that the ordinary posse comitatus is insufficient to insure the execution of the said process, to issue his order to any officer having command of regular troops or armed vessels of the United States, in the vicinity, requiring him to aid the officer charged with the execution of the process, with all the force under his command, or such part thereof as may be necessary, in arresting the offender and all those giving aid and countenance in resisting the civil authority." Section 2, interestingly, doesn't include the instruction contained in section 1 for the forces so employed to conform themselves to the President's instructions.

These are really quite remarkable provisions. The President and only the President is the Commander-in-Chief, but these two sections require federal judges, and authorize state governors, to issue orders to federal troops. It is startling to see anyone authorized to issue orders to federal troops except the President and those below the President in the chain of command. It's even more startling to see federal judges authorized to do so, since we are accustomed today to think of judges as ill-suited even to review military decisions, much less to issue orders for the use of troops against foreign armed vessels. And perhaps it's most startling of all to see state governors empowered to issue orders embroiling federal troops with foreign armed vessels; if there is anything clear in the Constitution, it is that the federal government is the principal holder of authority to use force against foreign nations.

It is true that the marshal in section 1 must comply with instructions given by the President. Perhaps the troops ordered into action by state governors under section 2 must do the same, though that isn't explicit in that section. But this requirement seems to mean only that the President specifies how the federal forces will carry out the requirements imposed by judges or governors -- the power to impose the requirements remains with them, and thus not with the Preside

And yet -- the Eighth Congress, in 1805, apparently saw all this differently. They did not, to be sure, view this statute as routine (section 9 is a sunset clause, with a total duration of less than 4 years). But they did, we must assume, view it as constitutional. It is very difficult to square that view with an uncompromising assertion of the President's Commander-in-Chief power as exclusive and largely beyond Congress' regulation -- the assertion that underlay so much of the Bush Administration's approach to the difficult issues of war.