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.

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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.


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Read the Interview

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.

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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.

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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.

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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.

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"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.

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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.

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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.”

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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.

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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.

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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.

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Judicial Review in an Age of Moral Pluralism

Read the Law & Politics Book Review by Christopher Malone

The Rule of Law and the Law of Nature

by Russell Hittinger

First Principles
August 26, 2010

The rule of law is essential to a free society. But is the rule of law self-standing, independent from any other standard or source? If not, upon what does it depend?

Russell Hittinger addresses these very questions in the following piece, which examines the influence of a “higher law” in the American experience, beyond the immediate civil society and its discourse.

The prominence of higher law thinking at the time of the American founding is too well known to warrant more than a brief comment. Whatever may have been Thomas Jefferson’s theological convictions, he understood well enough that the “Laws of Nature” needed to be situated in reference to “Nature’s God.” Similarly, Alexander Hamilton asserted that the “Sacred Rights of Mankind are . . . written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.” From every American pulpit, and in every legislative assembly, the higher law was a familiar coin of discourse. Within a generation of the American founding, the higher law doctrine was prominent in the debate over slavery, especially after the Fugitive Slave Act (1850). Interestingly, most of the federal judges who believed that slavery violates natural law did not use the higher law doctrine as an excuse for usurping constitutional authority.

n his dissenting opinion in Scott v. Sandford (1857), Justice McLean reminded the majority that the much-vexed jurisdictional question of congressional authority over the territories did not entitle the Court to claim interpretive authority over the natural law. Chief Justice Taney had contended in the majority opinion that the appeal of the Declaration of Independence to “Nature’s God” should be interpreted in light of public opinion, thereby rendering the natural law inferior to human judgment. To the contrary, McLean responded, the slave “bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” Although the Constitution gives the Court no authority to change the positive law of the Constitution, by the same token it does not hand over the higher law to the Court’s estimation of public opinion.

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When Justice Comes Naturally

by John O. McGinnis

Wall Street Journal
August 27, 2010

At the confirmation hearing of Elena Kagan earlier this year, various senators made a point of saying that, when it came to picking justices for the Supreme Court, they wanted to vote for nominees who were in the "mainstream" of constitutional thinking. It is an admirable goal, but the mainstream is hard to navigate these days, in part because the shorelines are so distant. On one side, where Republicans generally reside, there is the jurisprudence of originalism, where the meaning of the Constitution is fixed by the meaning of the text at the moment of enactment. On the other, generally inhabited by Democrats, there is the idea of a living Constitution, where meaning is updated by evolving moral principles.

In Constitutional Illusions & Anchoring Truths, Hadley Arkes tries find a path between these two extremes. In particular, he wants to recapture the natural-law tradition that grounds any reading of the Constitution in moral truths. Like believers in a living Constitution, he thinks that interpretation must go beyond the text and be informed by moral principles. Like originalists, he believes in an unchanging Constitution, because natural law—the first principles of individual conduct and political legitimacy—is part of the immutable order of things.

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Four Secrets to Law School Success

by Michael C. Dorf

FindLaw
August 23, 2010

With a job market that remains, at best, uncertain awaiting them at the end of their three years, new and returning law students are understandably anxious about what they can do to make the most out of their legal education. In the past, I have offered advice about the first-year curriculum and how to think like a lawyer. In this column, I share four lessons that I have learned in nearly two decades of law teaching.

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Justice Breyer Takes 'Originalists' to Task In a New Book

Wall Street Journal
August 23, 2010

When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done.

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

Active Liberty: Interpreting Our Democratic Constitution explains Justice Breyer's approach and applies it to some of the most divisive topics that come before the court. These include everything from freedom of speech and privacy rights to affirmative action and last June's Ten Commandments cases, which addressed the constitutionality of religious symbols on government property.

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On Prop 8, it's the evidence, stupid

by Lisa Bloom

CNN
August 18, 2010

There's a big difference between a political debate about same-sex marriage and the recent hard-fought court challenge to the California ban, Proposition 8.

In politics, anything goes: Vague, sinister comments about same-sex marriage threatening children or undermining the sanctity of heterosexual marriage were prevalent during the Prop 8 campaign. In court, same-sex marriage opponents needed solid evidence to back up these and other claims.

Despite "able and energetic counsel," they never produced it. That's why they lost, resoundingly, in the federal district court. And that lack of evidence should dog opponents up through the chain of appeals that is now beginning, because appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker's findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren't.

And what a lopsided trial he presided over. All the anti-same-sex marriage arguments imploded when subjected to the rules of evidence.

"You don't have to have evidence of this point," counsel responded to the judge's question asking what support existed for their claim that "responsible procreation is really at the heart of society's interest in regulating marriage."

No, sorry, at trial, you do have to have evidence. Of this point and every point. (And since -- as even Supreme Court Justice Antonin Scalia once pointed out in another case -- the sterile and elderly are allowed to marry, it can't be all about procreation.)

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Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway)

by Orin Kerr

The Volokh Conspiracy
August 16, 2010

In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1. In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero. Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2. A few decades later, American society has embraced A2 as a universal principle. A1 is not just unacceptable but neanderthal. In contrast, B2 has become quite controversial, and public opinion is now divided between B1 and B2.

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Finding what makes constitutions endure

The University of Chicago
News Office
August 13, 2010

When the government of Kenya wanted outside advice this year on drafts of the country’s new constitution, one of their consultants was University of Chicago Law School professor Tom Ginsburg, one of the world’s foremost experts on how to write an enduring constitution.

In a world where an average of 10 new constitutions are created each year, Kenya is not alone in its drafting struggles. In fact, Ginsburg’s Comparative Constitutions Project, which he co-directs with Zachary Elkins, a University of Texas political scientist, has found more than 900 national constitutions enacted since 1789. The researchers painstakingly coded that material into an extensive dataset, which is proving invaluable, both to scholars and to countries like Kenya that need practical help with their legal blueprints.

Advising those countries is a weighty business, Ginsburg says, because of the real risk that their constitutions might fail.

“Most constitutions die at a very young age and are replaced often,” Ginsburg says. “They are, it turns out, very fragile things.”

Another surprising finding of the project is that although the United States has the world’s most durable constitution, the American document does not offer other countries a reliable model for success. In fact, the work suggests that constitutions emulating more recent efforts from Mexico or India may stand the best chance of surviving.

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