Alec D. Walen

Human Dignity and Proportionality: Deontic Pluralism in Balancing

The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. But some worry that the proportionality test provides a misguided and dangerous invitation to balance away human dignity. In an earlier article, one of us argued that there existed a distinct class of cases, characteristically involving the protection of human dignity, where measures meeting the proportionality test could still constitute a violation of rights. The task was to distinguish those cases from ordinary cases, for which proportionality analysis was normatively adequate. Because this is a position that embraces the proportionality test generally, but insists on carving out a distinct category of cases involving human dignity in which rights provide stronger, more categorical protection, this position might be called human dignity exceptionalism.We argue here that human dignity exceptionalism is false. Deontology is ubiquitous, and there is nothing in the idea of balancing that precludes taking it into account. Indeed, balancing properly understood requires it to be taken into account. More specifically the article seeks to establish two core points about balancing. The first is negative. Balancing is not a mechanical exercise. Balancing is a metaphor we use to describe a residual category within rights analysis that registers the importance of the various concerns at stake. The idea of balancing itself says nothing about what kind of things are relevant or what weight to assign the relevant concerns. The second point is positive. Deontology, if taken seriously, is not captured by a single, simple concept, such as the restriction against using people simply as a means. Rather, it covers a range of reasons for giving some interests more or less priority over others. In that sense we argue for an understanding of deontology as itself structurally pluralist (call this deontic pluralism). We offer no comprehensive conception of balancing that determines what the right balance will be in all cases. We argue only that the balance will have to make appropriate reference to constraints that arise out of what is required to respect dignity and illustrate what that means across the range of chosen cases: instrumentalizing individuals against their will, the relatively strict standards of proof in criminal proceedings, and the conditions under which long-term preventive detention can be legitimately authorized.

Agents, Impartiality, and the Priority of Claims Over Duties; Diagnosing Why Thomson Still Gets the Trolley Problem Wrong by Appeal to the ‘Mechanics of Claims’

Judith Jarvis Thomson recently argued that it is impermissible for a bystander to turn a runaway trolley from five onto one. But she also argues that a trolley driver is required to do just that. We believe that her argument is flawed in three important ways. She fails to give proper weight to (a) an agent¹s claims not to be required to act in ways he does not want to, (b) impartiality in the weighing of competing patient-claims, and (c) the role of patient-claims in determining agent-duties. All three of these failures can be understood in terms of what we call the Mechanics of Claims, an approach we develop for identifying and balancing competing claims in determining rights. Using that framework, one can see both why Thomson’s most recent argument is mistaken, and how to think more clearly about deontological choices generally.

Reasonable Illegal Force: Justice and Legitimacy in a Pluralistic Liberal Society

Ideally, should liberals in a pluralistic society be able to agree to abide by a common legal system such that all their disputes are resolved without resort to illegal force? Rawls believes the answer is “yes.” I explain and defend his answer, but I also conclude, focusing on the example of abortion, that the truth is “not necessarily, not always.” Rawls’s conceptions of reasonable citizens and public reason help explain why there is a strong prima facie duty to forswear illegal force. It is based on the duty to respect others, which requires that one be able to justify ones actions to them insofar as they are reasonable and matters of basic justice are at issue. One cannot justify using illegal force to those who reasonably think a law is just; to them it is a form of disrespect. Nonetheless, if one reasonably thinks that a fundamental injustice is tolerated or even established by the law, then one may be no less reasonable than one has reason to be if one uses illegal force, sacrificing this form of respect to right a greater wrong.

Doing, allowing, and disabling: Some principles governing deontological restrictions

LA. souleve le paradoxe des interdictions deontologiques qui consiste a interdire certaines actions malgre leur interet pour le bien commun (par ex. torturer une personne pour en sauver cinq). LA. montre en quel sens la doctrine du faire et du consentir (DDA) permet de resoudre ce paradoxe a laide du principe dincapacite (DP) et de la doctrine du double effet

The Use and Abuse of Definitions in Constitutional Law

Abstract Justice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

Fourth Amendment Rights for Nonresident Aliens

The U.S. National Security Agency has nearly unlimited authority to spy upon citizens of foreign countries while they are outside the United States. It goes almost without saying that such targeting of U.S. citizens, without any hint of individualized suspicion either of criminal wrongdoing or of being a threat to national security, would be constitutionally prohibited under the Fourth Amendment. However, the dominant view in the American legal community is that there is nothing constitutionally wrong, or even suspect, about such targeting of nonresident aliens (NRAs).I contend here that the dominant view of the law is wrong both descriptively and normatively. It is wrong with regard to the proper interpretation of the relevant constitutional case law, because that case law is more open ended and unclear than the dominant view represents it as being. And it is wrong with regard to the underlying legal and moral principles that should guide the interpretation and development of constitutional law. Those principles call for recognizing that NRAs enjoy constitutional protection against unjust harms — a point I argue for in a companion paper, “Constitutional Rights for Nonresident Aliens.” And I argue here that those same principles imply that NRAs enjoy the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Reflections on Theorizing About the Moral Foundations of the Law: Using the Laws Governing Detention as a Case Study

My concern here is to illustrate how judicial review can and should make use of basic moral notions by examining the constitutionality, under the U.S. Constitution, of subjecting a legally resident alien, captured in the United States, to long-term military detention as an “enemy combatant.” The point of this is not simply to add to the list of moral issues that the U.S. Constitution - and presumably other constitutions - have to come to terms with. It is also to demonstrate that sophisticated moral theorizing should be relevant to the practice of law. I do so by showing that in the absence of such careful inquiry, the constitutional discussion regarding the military detention cannot reach a satisfying resolution.I proceed by arguing in part A that judicial review provides an opening for bringing moral reasoning, and in particular sophisticated reasoning about aspects of justice, into the law. The rest of the paper turns to the topic of detention law to illustrate the need for sophisticated moral reasoning in constitutional law. In part B, I give an overview of my unified moral theory of detention, which I will argue further on must be appealed to in order to arrive at a defensible constitutional theory of military detention. In part C, I discuss the decision in al-Marri v. Pucciarelli, which split on the issue of whether a legally resident alien in the United States, who was not a combatant under the traditional law of war, could nonetheless be held as an enemy combatant in long-term military detention. I argue there that neither side of the issue took a defensible position because neither side understood what the underlying moral issues are. In part D, I argue that to make sense of the constitutional significance of being a combatant, we need to understand how that concept arises in a larger moral framework, and give a summary of how the framework I sketched in part B fits that bill.

Constitutional Rights for Nonresident Aliens

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way.