Tag Archives: Josh Patashnik

Your State Has Issues, Man


Reihan Salam starts this off with one line:

I think we need to do a far broader rethinking of state and federal responsibilities.

Matthew Yglesias:

I tend to agree. But a big part of the problem here is that it’s difficult to think of what kind of issues are actually well-suited to be dealt with at a state level. It’s easy to think of kinds of issues that Arlington County, Virginia should address on its own without input from people who live in Norfolk, VA or Montgomery County, Maryland or Boise, Idaho. These are your local government responsibilities. And it’s also easy to think of issues that should be decided in common between Arlington and Norfolk and Montgomery and Boise. These are your federal responsibilities. But it’s very hard to think of what kinds of things should involve Arlington and Norfolk, but not Montgomery County. Conversely, it’s pretty easy to think of things that should involve Arlington County and Montgomery County but not Norfolk or Boise. These would be metropolitan region issues.

But we don’t have any level of governance that addresses metro area issues. And we don’t really live our lives “at the state level.” And insofar as co-residents of a single state do have idiosyncratic issues in common that tends to be because important fiscal and regulatory powers have been allocated to state government rather than because it actually makes sense for them to have been allocated this way.

There’s not a ton that can be done about this. The constitution doesn’t let us appoint a “commission on middle-tier governance” to redraw boundaries. But the boundaries we have don’t follow any real economic or social logic. And the states themselves are a ludicrously mixed bag. California is giant, with the population of a medium-sized country like Poland. And nobody lives in Wyoming. The state of Florida contains eight separate MSAs that contain more people, including places I’ve never heard of like Palm Bay/Melbourne/Titusville.

Ezra Klein:

The states where you see a real commonality of political interest are small states: Montanans and Alaskans have discrete needs in ways that Californians really don’t. That is to say that states have more commonality of interest when they’re about as large as a mid-size city, as opposed to a mid-sized country. And because we give the city-sized states as much representation in the Senate as we give to the country-sized states, the city-sized states have even more incentive to emphasize their political interests.

That arrangement might be good for Montanans, but it doesn’t make a lot of sense for the country. I’ve occasionally argued for a more proportional Senate, only to be asked “what do you have against small states?” Well, nothing in particular. I just don’t consider states to be a particularly useful political unit. Why not apportion Congress by race? Or population density? Or income? All of those options seem a bit nuts, but the only reason that states make any sense to us is because it’s always been thus. All of those options make a lot more sense than organizing representation around the boundaries of Missouri.

And it’s not as if there was some high-minded reason for state-based representation a few hundred years back. Rather, states were given a lot of power because that was the only way to entice them into joining a union. It was a coldly political compromise. It’s good we got that done, but some of the structural concessions that were required don’t make that much sense in the 21st century. Not that “does this make sense?” is a particularly powerful consideration in our system.

Josh Patashnik at TNR:

The most important centers on a concept conspicuously absent from Matt and Ezra’s posts: sovereignty.

The “what good are states?” view makes some sense if you regard the federal government as the fundamental political unit in America, and the states as nothing more than sub-national governmental units established for convenience’s sake.  But that’s simply and indisputably not the way our system was established and not the way it works. To view states in that light is un-American (in the literal sense, not the pejorative Glenn Beck sense).  As Justice O’Connor put it, “States are not mere political subdivisions of the United States. . . . [t]he Constitution instead leaves to the states a residuary and inviolable sovereignty.”  States are not a means to some administrative end; within their sphere of sovereignty, they are the end.  In joining the Union they gave up certain powers, but they retained everything else.  To question that is to propose a system radically different from one we have.


My own view is that such radical and wholesale changes are per se inadvisable.  Maybe, though, you disagree.  Sovereignty and historical precedent aside, what normative justifications are there for retaining the role states play in our system?

First, it’s not entirely clear what the alternative is.  Matt says, “a big part of the problem here is that it’s difficult to think of what kind of issues are actually well-suited to be dealt with at a state level.”  This is somewhat surprising to me.  What about the basic, bread-and-butter questions of governance that states currently deal with?  For instance, what should the punishment for murder be?  How much money should teachers make?  How should the car insurance industry be regulated?  How about marriage, divorce, inheritance, and adoption? 

These questions are too local in character to merit federal involvement; in a vast and diverse nation, trying to settle these debates in Washington is as hopeless as it is unnecessary.  Plus, there are the usual considerations about the benefits of state-level policy experimentation that liberals, in particular, should value.  At the same time, these aren’t the sort of municipal- or metropolitan-area-based decisions (about things like transit or land use) that need to be made on an even more local scale.  As confusing as it can be to have 50 states making policy in these areas, it would be far messier to have several hundred smaller governmental entities doing it.  What you’d want, it seems to me, is a moderate number of reasonably sized jurisdictions whose residents share at least some sense of identity, values, and commonality of interest.  (And, for the record, autumn is a strange time to be asking whether state identity still exists.  Go ask the 102,000 people who packed themselves into Ohio Stadium last Saturday, or the other 102,000 in a sea of orange in Neyland Stadium in Knoxville.)

This, again, isn’t to say that if you were drawing states from scratch you’d come up with exactly what we have now.  Maybe you’d come up with 30 or 70 instead of 50.  Maybe you’d think about uniting, say, western Washington and western Oregon into one state, and lump eastern Washington and eastern Oregon in with Idaho.  Surely you’d want to do something–anything!–about California.  My point is just that the current alignment of states isn’t that far off from what you’d probably come up with.

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The Troy Davis Case


The decision at SCOTUSBlog:

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443)  The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented. Some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.   The new member of the Court, Justice Sonia Sotomayor, took no part in the Court’s action.

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts.  Such claims rarely succeed.  Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.”  (The documents that were before the Justices — the original writ, petition for certiorari, brief in opposition, and amici filings — can be downloaded here.)


On the power of a federal judge to rule in Davis’ favor at this stage, Scalia argued that the 1996 federal law limiting federal habeas review of state criminal convictions — the Anti-Terrorism and Effective Death Penalty Act (AEDPA) — barred any federal court from hearing Davis’ claim because there was no error at his trial that violated any prior Supreme Court decision.

Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”  He conceded, though, that the Court has left the issue open.

SCOTUSBlog corrects the above post

Background on the case via Paul Campos at Daily Beast:

Twenty years ago Wednesday night, Mark MacPhail, an off-duty Savannah, Georgia, police officer moonlighting as a security guard, was shot to death in a dark parking lot. MacPhail had tried to come to the aid of a homeless man who was being pistol-whipped by a local thug named Sylvester Coles.

Two years later, after what Justice Antonin Scalia described this week as a “full and fair trial,” Troy Davis was convicted of murdering MacPhail and sentenced to death. The evidence at that trial consisted of nine eyewitnesses who claimed Davis shot MacPhail (Davis had been inside a nearby pool hall and was part of a crowd that came out of the hall in response to the commotion in the parking lot where Coles was beating the homeless man).

The prosecution’s star witness was none other than Coles himself. No physical evidence tied Davis to the crime—the gun was never recovered—and in the years since Davis’ conviction, seven of the eight other eyewitnesses who claimed to have seen Davis shoot MacPhail have signed sworn affidavits recanting their claims. Several now claim Coles was the killer and that they were coerced by police threats into testifying against Davis.

In retrospect, the case against Davis, which wasn’t strong to begin with, has almost completely fallen apart. But Davis has a big problem: As an exasperated Scalia explained in his dissent from Monday’s extraordinarily unusual Supreme Court order directing a federal court to hold an evidentiary hearing on Davis’ claims, there’s nothing illegal about what has happened, and continues to happen, to Troy Davis. (The order is unusual because the court almost never entertains direct appeals by defendants in Davis’ situation.)

Alan Dershowitz in the Daily Beast:

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”


I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law School freshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

Conor Clarke at Sully’s place:

I’m not a lawyer and can’t speak to whether the court has “never held” what Scalia says, or whether Davis actually had a “full and fair trial.” I hope neither of these things is true. But if they are true, why would it be so surprising? Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone’s rights but nonetheless reaches the wrong conclusion.

I think procedural rights are useful in large part because they prop up substantive considerations that our society values — like guilt or innocence when guilt or innocence is deserved. But an alternate view of procedural rights — or a view that says, simply, that it’s not the role of the Supreme Court to decide these things — doesn’t seem like it’s molded out of unalloyed craziness.

More Clarke:

I got a lot of emails about that: “No no,” you all said, “the composition of Scalia’s madness is really quite pure.” And, you know what, that’s probably right. But before I backpedal completely let me offer up the main responses I received, which fall into these two categories. First:

The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The “liberal” argument goes as follows: it is both cruel and unusual to execute someone for a crime he did not actually commit.  Period.

Check. Second:

The problem with Scalia’s quote, and by extension your post regarding it, is that Troy Davis did not receive a full and fair trial if, in fact, several of the witnesses did not tell the truth during that trial.

And mate.

I should add that I stand by the general point of my post, which was that procedural rights normally aren’t things that stand or fall depending solely on the outcomes they generate. But I read the quotes above as making two good points about this. First, it’s not clear Troy Davis’s procedural rights were satisfied. Second, even if those procedural rights were satisfied, the outcome in this case is so deeply terrible that it calls into question the value of the original procedures.

Patrick Appel has more links. Scott Horton at Harper’s:

In other words, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death–but who is actually innocent–a review of his case. It is certainly true that the Constitution provides no absolute guarantee of justice. But Scalia’s view effectively puts an expense meter on the justice process. Once the process has run through certain steps, that’s it. In his view, it really shouldn’t matter that subsequent evidence establishes that the conviction is mistaken. It’s more efficient simply to implement the decision and execute the innocent man.

That puts Scalia on the other side of the issue from his own church—since Pope Benedict XVI is among those who have registered appeals on Davis’s behalf—as well as an impressive list of former prosecutors and judges, like former FBI director William Sessions, who may reserve judgment on Davis’s guilt or innocence but are quite convinced that his conviction was secured on the basis of false evidence.

Lee Kovarsky:

Scalia has embraced this paradigm openly for years, and his arguments embody the belief that, assuming full and fair state process, guilt determinations remain the unique province of state judiciaries. To Bator, Scalia, and others, allowing freestanding innocence relief represents an intolerable encroachment on the co-equal sovereignty of state courts. In the end, the position is really about promoting federalism and preserving a historic function of state courts, especially where incremental federal process adds little to the project of truth-seeking.

The reason Scalia is not entirely off base is that the Court has really hedged on which framing of the question it prefers. It was squarely presented with the freestanding innocence question, which it promptly ducked, in Herrera v. Collins (1993). The Court conspicuously avoided the freestanding innocence question again in House v. Bell (2005) and in District Attorney’s Office For the Third Judicial District v. Osborne (2009).

So Justice Scalia is absolutely correct when he says that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” As a descriptive matter, the Court has never issued such a holding. The problem with Justice Scalia’s remark is with its implication – that the Court has sent the Federal District Court for Southern District of Georgia on a “fool’s errand.” Just because the Court hasn’t recognized freestanding innocence does not mean that it shouldn’t.

Adam Sewer at Tapped:

I’m not sure how a trial in which most of the witness testimony was the only evidence against the defendant, and most of those witnesses said they lied on the stand, some say due to police coercion, could be considered “fair”. The Times explains that as a legal matter this question actually may be unresolved, and elaborates further on the legal questions relating to habeas cases and “showings” vs “demonstrations” of innocence. But here’s your conservative jurisprudence, your defenders of individual rights and champions of the culture of life, arguing that a potentially innocent man should be executed because well, because.

Josh Patashnik at TNR:

All told, I don’t find Justice Scalia’s reasoning especially persuasive. But he does make one noteworthy point: if the evidence of Davis’s innocence is so strong that it merits this unheard-of step, how is it that the Georgia Board of Pardons and Paroles, the Georgia Supreme Court, and the U.S. Court of Appeals for the Eleventh Circuit all ruled against Davis?

There are two possible answers that spring immediately to mind. One is that the Georgia judicial system and the Eleventh Circuit are some combination of nefarious, incompetent, and lazy. That’s possible, but it isn’t very likely, especially in a case that’s gotten as much attention as Davis’s has. A second answer, which seems much more realistic, focuses on the standard of review those bodies were using–that is, how much deference they granted to the jury’s determination of factual guilt. And under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the answer is that federal courts, at least, must grant substantial deference to the jury’s findings.

Here’s what the Eleventh Circuit said: “When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder.” Now, that may well be true–not all of the prosecution witnesses have recanted, after all. “Clear and convincing evidence” is a fairly high bar to meet. Davis must prove not merely that the new evidence, on balance, seems to raise reasonable doubts about his guilt that weren’t present the first time around. He must show, rather, that it is substantially more likely than not that the jury would have reached a different conclusion had it been presented with the new evidence.  It’s entirely possible that Davis can’t quite meet that standard. As Davis’s sister told the Atlanta Journal Constitution, “I know that a lot of people still think Troy is guilty.”  If that’s correct, then the Eleventh Circuit was probably right to deny Davis’s petition even if he cleared the procedural hurdle that’s at issue here.

UPDATE: James Joyner

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It May Be A Weird Institution, But It’s Our Weird Institution

Matt Y notes that Felix Salmon notes two posts. David Roberts at Grist (on cap and trade):

Republicans have settled on a strategy of blanket opposition to both the health care and climate legislation. This obviously isn’t in the best interests of the country; it’s not even obviously in the narrow self-interest of many Republicans. Nonetheless, a combination of increasing ideological rigidity, lack of new ideas, and sheer cussed habit has taken the Right completely out of these debates, except as rock-throwers and gear-grinders. They’ve decided that Democratic successes on either of these major initiatives could fuel further electoral losses, and that’s their worst fear.

It didn’t have to be this way, and many people I talked to evinced genuine surprise at how it’s turned out. The climate bill strategy, for instance, got rolling in December, way back pre-Obama stimulus plan. It was designed around the assumption that in the wake of Obama’s historic win and efforts to reach out across the aisle, a few Republicans could be peeled off.

That didn’t work out. And it can’t be overstated how much unified Republican opposition is shaping things. The debate is entirely between Democrats, entirely along regional lines, and “moderate” Democrats (i.e. those hailing from carbon-intensive districts) have been accorded enormous power. Witness Boucher’s triumphs in the House.

In the Senate, there are maybe two Republican yes votes—the last moderates standing, Olympia Snowe and Susan Collins from Maine. That means to get cloture, Dems can lose no more than two votes from their own caucus. Meanwhile, there are far more than two senators on the fence (at best) or likely nos (at worst): Mary Landrieu (Louisiana), Evan Bayh (Indiana), Ben Nelson (Nebraska), Blanche Lincoln and Mark Pryor (Arkansas), and several others.

And John Gapper at Financial Times (on financial regulation):

The US administration has clearly decided that it simply cannot get any large-scale consolidation of regulation through Congress, given the vested interests involved. But that makes its response to the financial crisis seem more like a whimper than a bang.

Salmon then says:

How did Obama manage to spend all his political capital so quickly? Did it all go on the stimulus bill? Wasn’t the whole point of bringing Rahm in as chief of staff that he could work constructively with Congress to pass an ambitious agenda? And isn’t Obama himself the first president since JFK to have entered the White House from the Senate? I’m not sure when everything went wrong here, but I fear that the damage is now irreparable — and that Obama’s agenda is going to be severely scaled back as a result.

To which Matt Y responds:

The American presidency is a weird institution. If Barack Obama wants to start a war with North Korea and jeopardize the lives of hundreds of thousands of people, it’s not clear that anyone could stop him. If he wants to let cold-blooded murderers out of prison, it’s completely clear that nobody can stop him. But if he wants to implement the agenda he was elected on just a few months ago, he needs to obtain a supermajority in the United States Senate.

Josh Patashnik responds to Matt:

I don’t really see how this makes the presidency a weird institution–what it means is that presidential campaigns are very strange creatures. The reality is that we have a system of government in which domestic policy is by and large set by Congress. You might think this is a good thing or a bad thing–I tend to think it’s a good thing–but it certainly isn’t a new thing; it’s the way the system has always worked. In a more rational world, presidential campaigns would focus exclusively on questions of foreign affairs, judicial appointments, how to run the administrative state, and so forth. Voters would laugh off the stage any presidential candidate pledging to reform entitlement programs or labeling herself the “commander in chief of the economy,” and no campaign would bother putting out, say, detailed proposals for health care reform. It would be almost as ridiculous as a candidate running for the House of Representatives on a platform of overturning Roe v. Wade (though, come to think of it, I guess that happens a fair amount too).

Matt responds to Josh:

I think this goes a little bit too far, but I basically agree. In particular, when it comes to domestic policy we spend way too much time discussing the ins-and-outs of candidates “plans” and too little time talking about how they envision interacting with congress. During the general election, it was extremely difficult to picture what a McCain administration would actually look like given that a Democratic Congress was essentially inevitable. And during the Democratic primary, debates between the candidates often seemed to presuppose that sheer force of will could get a health reform bill enacted. Meanwhile, I don’t recall the candidates in either the primary or the general having anything interesting to say about minor things like China.

Big Tent Democrat at Talk Left:

Yglesias has this wrong. The American Presidency is only weakened on policy when Democrats hold the office. This is, in part, because the Left Flank of the Democratic Party is incredibly ineffectual.

I once thought that the Left blogs could help to change that. But it seems there is much more interest in being Charlie Cooks and Stu Rothenbergs or in engaging in food fights with the Right blogs and Glenn Beck than in shaping the policy of the country .

Between the two posts above, Yglesias has another post up about the American system:

Now of course Texas is also a big state (though at 7.81 percent of the population it’s a lot smaller than California) and there are small states (like Vermont and North Dakota) that have two Democratic Senators. So the point here isn’t a narrowly partisan one, though the wacky apportionment of the Senate does have a partisan valence. The point is that this is an unfair and bizarre way to run things. If you consider that the mean state would contain two percent of the population, we have just 34 Senators representing the above-average states even though they collectively contain 69.15 percent of the population. The other 66 Senators represent about 30 percent of the people. If the Iranians were to succeed in overthrowing their theocracy and set about to write a new constitution, nobody in their right mind would recommend this system to them.

James Joyner responds:

Probably not — but we might have been better off recommending something like that to the Iraqis.  Some form of strong federalism or even confederalism makes a lot of sense in cases where states are comprised of geographically bound subgroupings with a strong sense of separate identity and history of autonomy.

The problem in the United States is that our current system no longer reflects the reality on the ground.  Most of us are now highly mobile with no strong sense of place-related identity.  Most Californians or New Yorkers or Virginians probably just think of themselves as Americans and only incidentally as residents of their states. This is least true, however, in the less populated states, which tend to be comprised of residents with intergenerational roots and therefore much more provincial.

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