Friday, September 17, 2010

Evolving Circumstances, Enduring Values

by Jeff Shesol

New York Times
September 17, 2010

“If my fellow citizens want to go to hell,” Justice Oliver Wendell Holmes once wrote, “I will help them. It’s my job.” This, for much of the last century, has stood as the purest (or at least the most pungent) distillation of “judicial restraint” — the idea that judges should, for better or worse, leave the business of governing to the people’s duly elected representatives. As practiced by the jaundiced Holmes, restraint was often a shrug of the shoulders: lawmakers, in his view, were predisposed to foolishness, and the Constitution entitled them, in most cases, to be fools.

Justice Stephen Breyer, appointed to the Supreme Court by President Clinton in 1994, is also a believer in restraint. Statistics reveal that over the years, Breyer has been less willing than any of his fellow justices to overturn acts of Congress (a fact that belies the notion, peddled by conservative pundits, of liberal judges as legislators in robes, ruling the country by judicial whim). Yet Breyer, unlike ­Holmes, is optimistic about the outcome. He may, in fact, be the only American who still believes that members of Congress, as he has said, “really are mostly trying to do the right thing” — a faith he attributes to his years as a Congressional staff member.

That spirit pervades Breyer’s provocative new book, Making Our Democracy Work, which portrays judges not as aloof, indifferent observers of the American experiment, but as essential partners in that project. They fulfill that role, Breyer argues, by building “productive working relationships with other institutions” — Congress, the White House, states, independent agencies, school boards, lower courts and the like. He acknowledges a tension, but no contradiction, between helping these institutions operate more effectively and curbing their constitutional excesses.

More

Breyer Makes Case for Justices' Adherence to Constitution

Wall Street Journal
September 16, 2010

Justice Stephen Breyer expressed frustration with popular perceptions of the Supreme Court as a partisan battlefield, making an unusual public statement after a term full of 5-4 splits on politically sensitive issues.

Americans "think we're a group of junior league politicians," he said during a recent interview here. "They think we decide things on the basis of politics. Or, if not politics, on the basis of what we think is good for people, rather than the Constitution. And I think that's wrong."

In its most recent term, the court divided repeatedly along ideological lines, with a bare majority voting to strike down a local handgun ban and restrictions on corporate and union spending in elections.

Justice Breyer, during a conversation in the chambers he keeps at the federal courthouse here, sought to tamp down criticism from some on the left that conservatives led by Chief Justice John Roberts are on an ideological mission to roll back individual rights, while showing "tea-party groups" and others on the right why liberal-leaning justices like him believe they are keeping faith with the framers.

Even when the justices disagree, "all nine of us think we're following the same Constitution that was there in 1790," he said.


More


Read the Interview

Thursday, September 16, 2010

The Case for a 'Repeal Amendment'

by Randy E. Barnett & William J. Howell

Wall Street Journal
September 16, 2010

On Sept. 17, 1787, the U.S. Constitution was signed. The celebration of Constitution Day this year takes on renewed significance as millions of Americans are objecting to a federal government that has bailed out or taken over banks, car companies and student loans while it prepares to take charge of the practice of medicine. Unfortunately, because there is no single cause for this growth of federal power, there is no single solution.

One cause is political, with elected officials promising solutions to social problems that are beyond their power to deliver. Another is judicial, with federal judges who have allowed the Congress to exceed its enumerated powers for so long that they no longer entertain even the possibility of enforcing the text of the Constitution.

Also responsible are two "progressive" constitutional amendments adopted in 1913. Both dramatically increased the power of the federal government at the expense of the states, creating a constitutional imbalance that needs to be corrected.

More

Turkey’s referendum: creating constitutional checks and balances

by Aslı Ü. Bâli

Foreign Policy
September 15, 2010

In recent months, commentators have given warning of creeping Islamization in Turkey's domestic and foreign policy. Descriptions of the new "swagger" in Prime Minister Recep Tayyip Erdogan's approach to the Middle East are paired with allegations of an increasingly authoritarian style of government by the ruling AKP party. Many have seized upon this weekend's constitutional referendum in Turkey as evidence that the country's secular establishment has been displaced and Islamist forces are consolidating power. While the referendum followed a period of intense political polarization, this simplistic account of Islamist forces arrayed against embattled secularists is both wrong and dangerous.

The twenty-six constitutional amendments at issue in the referendum are difficult to criticize on substance. They include provisions that: empower civilian courts while reducing the jurisdiction of military courts; strengthen gender equality and protections for children, the elderly, veterans and the disabled; improve privacy rights and access to government records; expand collective bargaining rights; and remove immunities long afforded to those responsible for the 1980 military coup. The overwhelming effect of these provisions amounts to civilianizing the military coup-era constitution, strengthening individual freedoms and undertaking much-needed judicial reform. Unsurprisingly, then, the European Union gave its strong support to the amendment package and President Obama called to congratulate Prime Minister Erdogan on the outcome of the referendum.

Why, then, should these amendments have been treated as controversial? The main objections centered on two elements: procedurally, the amendments were offered as a single package rather than allowing the electorate to vote on each provision individually. More importantly, opposition groups saw provisions for changes to the composition and selection process of the constitutional court and a board to oversee judicial appointments as an attempt at court-packing that would undermine judicial independence. While procedurally it might have been preferable to offer the amendments for referendum individually, the substantive concerns about the judiciary are the core of the controversy and they are largely baseless.

More

Turkey's Choice

by Soner Cagaptay

Wall Street Journal
September 16, 2010

Had I voted in Sunday's referendum in Turkey, I would have struggled to decide whether to vote for or against the constitutional amendments put forth by the ruling Justice and Development Party (AKP).

On the one hand, the reform package includes progressive amendments, such as constitutionally guaranteed gender equality. On the other hand, it grants the AKP the power to appoint most of Turkey's high court judges without a confirmation process. Prior to Sunday, the secular courts were the last remaining check on the power of the AKP—an authoritarian movement with Islamist roots that has often interpreted democracy as unchallenged majority rule. That judicial check is now gone.

With the amendments now passed, the AKP promises to draft a new constitution for Turkey. But regardless of the laws and amendments that Ankara passes, the question remains whether the AKP will actually transform the country into a liberal democracy.

More

Wednesday, September 15, 2010

Who is a citizen? The Founders left us a riddle

by Jonathan Turley

USA Today
September 14, 2010

The raging debate over illegal immigration has grown on a steady diet of rhetoric and recrimination. However, beneath all the hyperbole is a long-standing and unresolved debate over what it means to be a citizen. It turns out that the most foundational right contained in the Constitution — citizenship itself — is poorly defined and even more poorly understood.

There has long been a conscious avoidance of the question over so-called birthright citizenship — citizenship claimed by the children of illegal aliens. Indeed, the question has become increasingly difficult to address as the numbers of birthright citizens grow each year. In 2008, one in 12 babies in this country was born to illegal immigrants — 8% of all births. This is not counting the millions of prior such births, often referred to by critics as "anchor babies." With any change in the definition of citizenship assuring tremendous social changes and upheaval, the question has been left unresolved for more than two centuries.

More

"The Kids Are Alright": Family Life and Family Law on the Big Screen

by Joanna L. Grossman and Lawrence M. Friedman

FindLaw
September 14, 2010

Hollywood has now made a movie, The Kids Are Alright, of a type that would have been unthinkable in the bad old days of the Hays Office (Hollywood's private association, founded in 1922, charged with upholding moral standards in films); and even much more recently than that. Not only is the movie full of sex, but some of the sex is between two women.

The two women, Nic and Jules--brilliantly played by Annette Bening and Julianne Moore--are, in a way, married to each other. We never learn whether they have actually gone through a ceremony of marriage somewhere (probably not), or have entered into a domestic partnership or other formal arrangement. In any event, they are in a longstanding, committed relationship; they own a house together; and they are raising two teenagers together, a boy, Laser, and a girl, Joni.

Each woman is the birth mother of one of the children. The father of both children was the same anonymous sperm donor. But as the movie begins, the kids have located him, and they meet him, greet him, and bring him more or less into the family. The results are disastrous, especially when he and one of the Moms have bouts of hot sex together. This infidelity threatens to destroy the "marriage," but, by the close of the movie, there is a happy ending. Of a sort.

More

Tuesday, September 14, 2010

Cheap Seats

by Dahlia Lithwick

Slate
September 13, 2010

Sandra Day O'Connor has done an almost frighteningly good job of keeping herself outside the political fray since she retired from the Supreme Court in 2006. Even when afforded an opportunity to pick sides she tends to avoid doing so, unless it's the high road. Of the two causes she has championed, one—returning civics education to the public schools—is the kind of inoffensive issue that can bring together hippies and Tea Partiers. It's the second—doing away with judicial elections—that shows how hard it is to truly stay above politics when you're arguing for depoliticizing the judiciary. Last week O'Connor went to Iowa to give a speech about the benefits of appointing judges based on merit. And suddenly everyone thinks she's picked sides on gay marriage.

Voters in 21 states elect their Supreme Court judges directly, but in 1962, Iowa voters amended their constitution to create a "merit selection" system whereby an appointed panel submits the names of potential judges to the governor, who then appoints justices from that list. After a period of some years, voters can oust these justices in a retention election. In Iowa only four judges have failed to win their retention elections, never as a result of a vote in a case.

That's all about to change, though. In April 2009, the Iowa Supreme Court issued a 7-0 decision in Varnum v. Brien, finding that the state statute limiting marriage to a man and a woman violated the equal protection clause of the Iowa constitution. Bob Vander Plaats, a well-known social conservative in Iowa, ran a failed campaign for the Republican gubernatorial primary in June, campaigning largely against the decision. Now Vander Plaats has turned his attention to the retention elections against three of the state supreme court justices, the only three who will be on the ballot this fall. Marsha Ternus, the chief justice of the Iowa Supreme Court, is one of the three. In case it matters to you, she was appointed by a Republican governor. But never mind: Last month Vander Plaats founded Iowa for Freedom, seeking to oust Ternus and two other judges, David Baker and Michael Streit, in retaliation for their votes to allow gay marriage in Iowa. If the three are booted from the court, the governor—now a Democrat, by the way, but as I said, never mind—will simply replace them. Gay marriage will still be legal.

More

History Through A Supreme Court Justice's Lens

by Nina Totenberg

National Public Radio
September 13, 2010

U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption.

In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789.

Breyer's book, Making Our Democracy Work, A Judge’s View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion.

Scalia’s view is much more black and white. “The Constitution that I interpret and apply is not living, but dead,” he famously said.

Scalia contends that the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution's meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say.

Not so, Breyer says.

“People think we decide things politically,” Breyer says, “or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer. I don't think any of those things are true.”

Saturday, September 11, 2010

The Father of American Politics

by Richard Brookhiser

Wall Street Journal
September 11, 2010

James Madison is known as the Father of the Constitution, reflecting his role in planning, writing and ratifying the nation's fundamental law. This should be his month: The Constitutional Convention, where he starred, finished the document in September 1787. And Congress sent the amendments that became the Bill of Rights—which Madison also played a major role in shaping—to the states in September 1789.

But Madison has another claim on our attention. He is the father of American politics as we know it.

Madison helped establish America's first political party, the Republicans. In 1791, as a representative from Virginia, he joined Secretary of State Thomas Jefferson on a trip through upstate New York and New England, supposedly collecting biological specimens for the American Philosophical Society but actually collecting political allies for themselves. The politician they wished to combat, Treasury Secretary Alexander Hamilton, already wielded great power through his office, and hence he was somewhat slower to organize a party; when he did, it took the name Federalists.

More

Friday, September 10, 2010

An Invisible Chief Justice

by Linda Greenhouse

New York Times
September 9, 2010

The Pew Research Center asked people this summer to identify the current chief justice of the United States from among four possibilities: John Roberts, Thurgood Marshall, John Paul Stevens and Harry Reid. Only 28 percent correctly picked Chief Justice Roberts. The late Thurgood Marshall came in second, with 8 percent. Fifty-three percent could not make a selection, answering “don’t know.”

The result was surprising; after all, people weren’t asked to pull a name out of thin air. And the alternatives to the real chief justice were scarcely plausible: Justice Thurgood Marshall died 17 years ago (or maybe people thought the question referred to Chief Justice John Marshall — he died in 1835); Senator Harry Reid has never been a justice at all; and Justice John Paul Stevens was prominently in the news this summer not for being chief justice, but for retiring.

To anyone who spends a few minutes a week thinking about the Supreme Court, Chief Justice John G. Roberts Jr. is far from invisible. Political scientists and legal scholars debate whether the court under his leadership has become a whole lot more conservative or scarcely more conservative at all. A Roberts court decision earlier this year, the Citizens United campaign-finance ruling, prompted President Obama to criticize the chief justice and his colleagues to their faces in the middle of the State of the Union speech. And an unusually rapid pace of personnel change, with three additional new justices since Chief Justice Roberts took his seat on Sept. 29, 2005, has kept the court and its members under a brighter than usual spotlight. So the chief justice’s low public profile is a bit of a mystery.

More

Saturday, September 4, 2010

The Milgram Experiment

by Jeff Riggenbach

Mises Daily
September 3, 2010

It was about 1550, according to the standard accounts — about 14 years before the birth of Shakespeare, about 80 years before the birth of John Locke, about 135 years before the birth of Bach — that a young Frenchman named Etienne de La Boetie, a young man of what we, today, would call college age, about 20 years old, posed what Murray Rothbard would later describe as "the central problem of political philosophy: the mystery of civil obedience. Why do people, in all times and places, obey the commands of the government, which always constitutes a small minority of the society?"

La Boetie saw, Rothbard wrote, that

every tyranny must necessarily be grounded upon general popular acceptance. In short, the bulk of the people themselves, for whatever reason, acquiesce in their own subjection. If this were not the case, no tyranny, indeed no governmental rule, could long endure. Hence, a government does not have to be popularly elected to enjoy general public support; for general public support is in the very nature of all governments that endure, including the most oppressive of tyrannies. The tyrant is but one person, and could scarcely command the obedience of another person, much less of an entire country, if most of the subjects did not grant their obedience by their own consent.

This, then, becomes for La Boétie the central problem of political theory: why in the world do people consent to their own enslavement?

Rothbard wrote this passage as part of a lengthy and extremely interesting introduction to a then-new edition of Etienne de La Boetie's youthful essay on political philosophy. This new edition (which presented a modern American translation originally brought out in the 1940s) was published in 1975 under the title The Politics of Obedience: The Discourse of Voluntary Servitude. That very same year, 1975, a rival edition of La Boetie's little book was issued by another small scholarly publisher, this one presenting an 18th-century British translation with the 16th-century French text on facing pages. This rival edition was published under the title The Will to Bondage and featured a not so lengthy but extremely interesting preface by the libertarian historian and editor James J. Martin.

More