The Morality of Migration

by Seyla Benhabib

New York Times
July 29, 2012

In announcing the Department of Homeland Security’s policy directive on June 15 stating that undocumented migrant youths who meet certain conditions would no longer be deported, President Obama said that “It was the right thing to do.” What he did not say was whether he meant “the right thing” legally or morally.

Obviously, he considered the action to be legal, even though this invocation of his administration’s power drew strong criticism from many, including Supreme Court Justice Antonin Scalia. But the president’s grounds for believing it moral were much less clear.

This should come as no surprise: the morality and politics of migration are among the most divisive issues in much of the world. In the United States, discussions of immigration flow seamlessly into matters of national security, employment levels, the health of the American economy, and threats to a presumptive American national identity and way of life. Much the same is true in Europe. Not a week goes by without a story of refugees from Africa or Asia perishing while trying to arrive at the shores of the European Union.

Nor are such developments restricted to the resource-rich countries of the Northern Hemisphere. The United Arab Emirates, Kuwait, Singapore, Israel and Jordan are countries with the highest percentage share of migrants among their total population, while the United States, the Russian Federation, Germany, Saudi Arabia, Canada and France lead in the actual number of international migrants. Migrations are now global, challenging many societies in many parts of the world.

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Leif Parsons

Αριστερά και Δημοκρατία

του Σταύρου Τσακυράκη

Τα Νέα
28 Ιουλίου 2012

Οι οικονομικές κρίσεις ποτέ δεν έλειψαν από τη χώρα, αλλά μέχρι τη Μεταπολίτευση η Ελλάδα πήγαινε από πολιτική κρίση σε πολιτική κρίση: Κίνημα στο Γουδή, Μικρασιατική Καταστροφή, δικτατορία του Μεταξά, Κατοχή, Εμφύλιος, μαύρη δημοκρατία στις δεκαετίες του 1950 και του 1960 και τέλος δικτατορία των συνταγματαρχών. Φυσικά όλες αυτές οι κρίσεις είχαν τις ιδιομορφίες τους. Ολες, όμως, ήταν κρίσεις μιας χώρας που πάσχιζε χωρίς επιτυχία να εγκαθιδρύσει μια πραγματική κοινοβουλευτική Δημοκρατία. Θα τις ονομάσω «κρίσεις που είχαν ως ζητούμενο τη Δημοκρατία».

Η Μεταπολίτευση έθεσε τέλος σε αυτού του είδους τις υπαρξιακές κρίσεις. Το δημοψήφισμα έσβησε οριστικά τον βασιλιά ως τον αντίπαλο πόλο της δημοκρατίας και οι κανόνες του δημοκρατικού παιχνιδιού που θεσπίστηκαν από το Σύνταγμα σε γενικές γραμμές τηρήθηκαν με αποτέλεσμα να έχουμε την πιο μακρά περίοδο ομαλής λειτουργία της Πολιτείας. Σταματήσαμε να έχουμε διαμάχες για την αυθεντικότητα των εκλογών, για το ποιος τις κέρδισε ή ποιος πρέπει να διοριστεί πρωθυπουργός και γενικά λειτουργούσαμε, τουλάχιστον τυπικά, σαν όλες τις δυτικοευρωπαϊκές δημοκρατίες.

Παρ' όλα αυτά, δεν αποφύγαμε και πάλι μια νέα υπαρξιακή κρίση. Τη λέω υπαρξιακή διότι, όπως και οι πριν από τη Μεταπολίτευση κρίσεις, δεν απειλεί απλώς την ευημερία μας αλλά θέτει υπό αμφισβήτηση τη θέση μας στην Ευρώπη και τον κόσμο• μας κάνει να συζητάμε ποιοι είναι οι σύμμαχοι και οι φίλοι μας• θέτει εκ των πραγμάτων ζητήματα εθνικής κυριαρχίας. Η ειρωνεία είναι ότι μόλις λίγα χρόνια πριν λέγαμε με περισσή οίηση ότι εμείς δεν είμαστε μέρος του προβλήματος στα Βαλκάνια, ο πιο άχρηστος πρωθυπουργός που είχαμε, δε, με ύφος χιλίων καρδιναλίων έδινε συμβουλές στην Τουρκία τι πρέπει να κάνει για να μπει στην ΕΕ. Εδώ και τρία χρόνια βρισκόμαστε - σχεδόν σε καθημερινή βάση - στα πρωτοσέλιδα όλων των μέσων ενημέρωσης, είμαστε χωρίς αμφιβολία ένα από τα προβλήματα του κόσμου ολόκληρου.
Η κοινωνία που δημιουργήσαμε είναι σε αδιέξοδο και βιώνουμε μια νέα υπαρξιακή κρίση που, όμως, διαφέρει από τις προηγούμενες όχι ως προς το βάθος ή την οξύτητα αλλά ως προς το γενικό πλαίσιο που διαμορφώθηκε. Ενώ οι προηγούμενες ήταν κρίσεις αναζήτησης της Δημοκρατίας, αυτή εδώ είναι κρίση εφαρμογής της Δημοκρατίας.

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All Three Branches of Government Are Acting Above the Law

by Andrew Napolitano

Reason
July 19, 2012

The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.

The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.

The second leg is that no one is above the law and no one is beneath it. Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question "Is the king above the Rule of Law, or is the Rule of Law above the king?" Thankfully, the king lost -- but only by 10 votes out of several hundred cast.

The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental -- Congress writes the laws, the president enforces the laws, the courts interpret the laws -- that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.

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James Madison and the Making of America

Kevin R. C. Gutzman

reviewed by Scott Douglas Gerber

Law & Politics Book Review
July 2012

Kevin R. C. Gutzman, Professor of History at Western Connecticut State University, has written a fine single volume political biography of James Madison. There are a lot of books about Madison – too many, perhaps – but Gutzman provides a splendid account of Madison’s long and distinguished public life. The principal lessons I took from Gutzman’s tome are how much Madison contributed to the history of the United States and how modest Madison was about his contributions. I already knew the first lesson. The second was interesting to learn. Gutzman concludes his book by comparing Madison’s grave to that of his mentor Thomas Jefferson:

One finds at Madison’s grave that here, as in so much else, he differed markedly from his great friend who now lies buried twenty miles away. There is no stone inscribed with Madison’s preferred titles from among the long list he had earned, including Co-Author of the Constitution, Author of the Bill of Rights, Co-Author of The Federalist, Co-Author of the Virginia Declaration of Rights, Founder of the Republican Party, Author of the Virginia Resolutions of 1798 and Report of 1800, Rector of the University of Virginia, President of the American Colonization Society, and Sponsor of the Virginia Statute for Religious Freedom – not to mention all the political offices he held, mostly to great effect (p.362).

It is an impressive feat that Gutzman manages to cover so much ground in 363 pages of text. His book is divided into eight chapters. Several of the chapters describe events that are very familiar to students of the American Founding: Madison’s leading role in the Philadelphia Convention of 1787 that produced the U.S. Constitution (chapter 3), his magnificent contributions to The Federalist during the ratification debates of 1787-1788 (chapter 4), and his shepherding of the Bill of Rights through the First Congress in 1789 (a substantial portion of chapter 6). To borrow a lawyer’s term of art, some of the other chapters served to “refresh my recollection” about events that I had not thought seriously about since college, such as Madison’s supervision of the Louisiana Purchase as Jefferson’s secretary of state, the quagmire during his own presidency that was the War of 1812, and the groundbreaking ceremonial role that his wife Dolley played as First Lady of the United States, both during the presidency of the widower Jefferson and, of course, of Madison himself. The fact that so much of Gutzman’s story is a familiar one is not meant as a criticism: Gutzman’s goal was to write an effective trade book about Madison and he has succeeded nicely.

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Intention and the Canons of Legal Interpretation

by Stanley Fish

New York Times
July 16, 2012

Those who are still wondering why Chief Justice John G. Roberts voted as he did in NFIB v. Sebelius might find an answer (not necessarily the answer) in Antonin Scalia’s and Bryan A. Garner’s new book, Reading Law: The Interpretation of Legal Texts. One of the canons of legal interpretation the authors rehearse is the Constitutional-Doubt Canon, #38 in their taxonomy: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” This canon, Scalia and Garner explain, “rests upon a judicial policy of ... minimizing judicial conflicts with the legislature.” They cite and affirm as exemplary a statement by Justice John Paul Stevens: “It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.”

As everyone knows, Justice Roberts finds the Obama administration’s reliance on the commerce clause unpersuasive and would have declared the Affordable Care Act unconstitutional if it rested upon a claimed ability of Congress not only to regulate but to compel commerce. But he then saves the act by redescribing it as a tax, thereby bringing it within the ambit of congressional powers. Now, whether this “alternative interpretation” is “reasonable” can and has been debated — in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”

What is a canon? Scalia and Garner are careful to say that canons “are not ‘rules’ in any strict sense” — canons do not direct those who follow them to specific actions in the manner of rules like “no smoking” or “no pets allowed.” Rather, canons are “presumptions about what an intelligently produced text conveys.” This does not mean any intelligence, but the intelligence that accompanies, or should accompany, the production and interpretation of legal texts. The canons, the authors say, are “background principles of assumed legislative intent.” They get their sense and their rationale from the enterprise in which they function, and they might be inapplicable or out of place in another enterprise.

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The Upside-Down Constitution

Michael S. Greve

reviewed by James A. Gardner

Law & Politics Book Review
July 2012

Perhaps you, like Keanu Reeves in the film The Matrix, sit at your desk each day with the vague impression that something about the world is deeply wrong, but you cannot quite put your finger on the problem. Michael Greve, the John Searle Scholar at the American Enterprise Institute, would like to be your Morpheus. In this sprawling, idiosyncratic, and often frustrating book, Greve reveals The Truth: the problem, at least in the United States, is federalism, which has not merely run off the rails, but has become literally inverted, promoting what it was designed to prevent, and preventing what it was designed to promote. In a book that aspires to be simultaneously a work of political economy, constitutional history, and doctrinal critique, and that along the way also attempts a biting, corrective intervention into contemporary conservative constitutional theory, Greve explains how true federalism’s demise, and its replacement with an imposter, has caused such misery.

Greve’s basic claim is that, over the course of the twentieth century, the Constitution was “revolutionized.” By this he means much more than the conventional, and undeniable, proposition that the meaning of important provisions of the Constitution, such as the Commerce Clause, changed over time. Instead, he means something much bolder and more specific: the most significant structural provisions of the Constitution, he argues, “have come to assume the opposite of their reasonable meaning” (p.2). Greve is quite serious about both aspects of this contention. The Constitution, he maintains, has come to mean precisely the opposite of what it really means – hence the “upside-down” Constitution of his title – and that meaning is contrary to its only reasonable meaning.

The upshot of this claim, of course, is that we now live in an era characterized by a particular kind of madness. It is not just that time and events have frayed or eroded the constitutional scheme, or that its administration by actual human beings in actual circumstances has resulted in its gradual evolution. No. The document has been turned cleanly upside down; we as a society have stepped through the looking glass to the other side. If the constitutional world seems insane to you, Greve brings good news: you are not the crazy one. The clarity and pungency of this message, and the consistency with which it is delivered, is the source of the book’s occasional strengths, but also of its considerable weaknesses.

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The Conservative vs. Libertarian Take on the U.S. Constitution

by Damon W. Root

Reason
July 10, 2012

"We're seeing profound disagreements among conservative legal activists over what the Constitution means," explains Reason Magazine Editor Damon Root. "One of the things we are seeing are conservatives and libertarians disagreeing."

In a new video created by the New York based nonprofit 92nd Street Y, Root argues that where traditional conservatives prefer a powerful state built to preserve settled norms, libertarians are more aggressive in striking down laws that infringe on personal freedom. "There is a small island of government power and it's surrounded by a sea of individual rights. That's the libertarian view and I think that is the correct view."

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Merkel Wrestles with Court over Europe's Future

Spiegel
July 9, 2012

Germany's Constitutional Court was set up after the war as part of an elaborate system of checks and balances. But recently it has been hampering the Germany government's efforts to solve the euro crisis, much to the annoyance of some politicians in Berlin. Critics accuse the court of wanting to safeguard its own power.

It isn't often that German Chancellor Angela Merkel shows her displeasure at something. One of the chancellor's strengths is that she is able to keep her emotions in check, which explains why her fellow party members were so surprised when the subject of Germany's Federal Constitutional Court was raised in a meeting of the executive committee of her center-right Christian Democratic Union (CDU) two weeks ago.

The judges had just admonished Merkel for disregarding the rights of the parliament during efforts to rescue the euro. It was already the second ruling in this vein this year. Criticism of Germany's highest court is generally viewed as inappropriate in political circles, but this time the chancellor had had enough.

How, she asked, could she pursue reasonable policies if she had to reveal her negotiating tactics before every meeting with a European leader? "This takes me to my limit," Merkel complained, to a murmur of approval from her fellow CDU members. They quickly realized that the chancellor views the judges as unrealistic law professors with no understanding whatsoever of the challenges of everyday politics.

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The Crisis of the European Union in the Light of a Constitutionalization of International Law

by Jürgen Habermas

European Journal of International Law
May 2012

The crisis of the European Union showcases the asymmetry between transnational capacities for political action and social as well as economic forces unleashed at the transnational level. But recovering the regulatory power of politics by way of increased supranational organization frequently arouses fears about the fate of national democracy and of the democratic sovereign threatened to be dispossessed by executive powers operating independently at the global level. Against such political defeatism this contribution takes the example of the European Union to refute the underlying claim that a transnationalization of popular sovereignty cannot be achieved without lowering the level of democratic legitimation. It focuses on three components of every democratic polity – the association of free and equal legal persons, a bureaucratic organization for collective action, and civic solidarity as a medium of political integration – to argue that the new configuration they take at the European level, when compared with the context of the nation-state, does not in principle diminish the democratic legitimacy of the new transnational polity. The contribution continues to argue, however, that the sharing of sovereignty between the peoples and citizens of Europe needs to be better reflected in symmetry between Council and Parliament while political leadership and the media must contribute to a greater sense of civil solidarity.

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