Some Thoughts On Yesterday's Debate On The "Torture Memos"

Chapman Law School (my alma mater) yesterday hosted a debate on the so-called "torture memos" between John Yoo and Chapman Dean John Eastman, on the one hand, and Chapman Professors Rosenthal and Darmer, on the other. (See OC Register story here, video here. I won't rehash all of the arguments made, as many of them were repetitive -- liberty versus security, the definition and application of "torture," etc. But one point stood out, as observed by a colleague of mine. There was a fair amount of talk about the first principles of our constitutional republic, and how those are resolved in the face of the "Take Care" clause of Article II section 2 (the president "shall take Care that the Laws be faithfully executed"). The question was answered by both Yoo and Eastman, and can be briefly summarized in that the U.S. Constitution does not create a parliamentary system in which a statute of Congress can abrogate the executive authority conferred by the Constitution, but instead that the Constitution is above statutory law. Thus, the question is not whether the President's actions were unlawful, but whether Congress's statutes were unlawful. But Professor Rosenthal doggedly repeated the "Take Care" clause from his pocket Constitution, to the crowd's delight.

Why would he do this? my colleague asked. Sure he understands the problem, the nature of Yoo's and Eastman's position? Why would he incessantly repeat the argument without at least seeking to advance it beyond the already covered ground?

As I took two courses from Rosenthal, I will note that I was also disappointed in his presentation, but that this is not indicative of the way he ran his classes, at least when I was there. I took Criminal Procedure and First Amendment from Rosenthal, and he is a tough, persistent oralist. I think the emotional component of the issue got the better of him yesterday, something that never happened in his classrooms.

As for the arguments themselves, Rosenthal has a somewhat narrow view of what qualifies for constitutional/legal discussion, and for that reason is extremely unreceptive to natural law or background principles. His view seems to be, if it does not lend to a result that can be demonstrably justified with current data to a contemporary “we the people,” it doesn’t qualify for legal debate. He loves to remark that many historians are puzzled when jurists cite examples from history, since those historians themselves cannot agree on history’s meaning and lessons. Instead, he prefers to cite social science data to come up with pragmatic justifications of what a “reasonable” search and seizure might be. He does not seem to be troubled that such data can come up against the very same argument as history – it can be used to prove anything. Perhaps social scientists are less willing to admit the limits of their craft than historians are.

Given all that, certainly Rosenthal understands the point that we are not a parliamentary system of government. As he is a participant in a debate, of course, it is in his best interests to just ignore the point – most folks will respond more favorably to the “plain,” unscrutinized meaning of the Take Care clause. The argument from constitutional first principles is even an uphill one in the academic community at large, so, if you’re Rosenthal, better to just leave it alone than to give the other side the opportunity to advertise and explicate the position.

Is it honest? No. If he were a lawyer, there would be no problem with ignoring, as long as possible, a legitimate view that, if accepted, would demolish his own. [Come to think of it, there are problems with that.] As a professor in a debate about the law (i.e., rather than over a particular outcome), however, it was improper and a disappointment.

[Find the full debate podcast here.]

[See Stephen F. Hayes's article, "The CIA interrogation debate is joined," at The Weekly Standard, on the Obama administration's double-talk on the interrogation issues.]