Gay marriage fight targeted Iowa judges, politicizing rulings on issue

Washington Post
November 3, 2010

The ouster of three judges in Iowa's normally low-key judicial elections marks another battle in the national fight over same-sex marriage and raises fresh concerns over the politicization of judicial elections.

Opponents of same-sex marriage had targeted the judges in an intense campaign to boot them off the state Supreme Court because of a unanimous ruling last year that legalized same-sex unions.

The successful campaign, which was funded to the tune of $700,000 by conservative groups both inside and outside the state, is reverberating across the country and echoes the conservative resurgence reflected in the midterm vote.

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Law professor: Ban on Sharia law 'a mess'

CNN
November 3, 2010

Oklahoma voters on Tuesday approved a measure that bans the application of Islamic law and orders judges in the state to rely only on federal law when deciding cases. State Rep. Rex Duncan, a Republican, was the primary author of the measure, which amends that state constitution.

For months, legal experts had lambasted the initiative as biased toward a religion and potentially harmful to local businesses that engage in commerce with international companies. It also presents potential constitutional law problems, experts say. Is Oklahoma's state constitution now in direct conflict with the U.S. Constitution's First Amendment, which states, "Congress shall make no law respecting an establishment of religion ... "?

There has never been a previous case in the state in which Sharia law was applied, said Rick Tepker, the first member of the University of Oklahoma School of Law faculty to try a case before the U.S. Supreme Court.

Tepker called the passage of the measure "a mess" with implications unknown until a case that challenges it arises.

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Ouster of Iowa Judges Sends Signal to Bench

New York Times
November 3, 2010

An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.

The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions.

Leaders of the recall campaign said the results should be a warning to judges elsewhere.

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

But critics of the campaign, including those who see the courts as a protector of minority rights, said the politicization of uncontested judicial elections represented a danger.

“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”

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Judgeless in Iowa: Making Sense of Tuesday’s Judicial Ouster

Wall Street Journal
November 3, 2010

So what do we make of this situation in Iowa, where, as we mentioned earlier Wednesday, voters ousted three Iowa Supreme Court Justices on Tuesday in a retention election?

The move, widely seen as a repudiation of a ruling last year that struck down a law prohibiting same-sex marriage, was particularly noteworthy given the nature of the vote. The justices weren’t running against opponents. They would have kept their jobs had a majority of voting Iowans simply pulled the lever that said yes, they could stay on the bench for another eight years.

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The question on Death Penalty in the second Bush-Dukakis Presidential Debate and the Willie Horton Political Ad (1988)

Commission on Presidential Debates
October 13, 1988

SHAW: On behalf of the Commission on Presidential Debates, I am pleased to welcome you to the second presidential debate. I am Bernard Shaw of CNN, Cable News Network. My colleagues on the panel are Ann Compton of ABC NEWS; Margaret Warner of Newsweek magazine; and Andrea Mitchell of NBC NEWS. The candidates are Vice President George Bush, the Republican nominee; and Governor Michael Dukakis, the Democratic nominee. (Applause)

SHAW: For the next 90 minutes we will be questioning the candidates following a format designed and agreed to by representatives of the two campaigns. However, there are no restrictions on the questions that my colleagues and I can ask this evening, and the candidates have no prior knowledge of our questions. By agreement between the candidates, the first question goes to Gov. Dukakis. You have two minutes to respond. Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?

DUKAKIS: No, I don't, Bernard. And I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime. We've done so in my own state. And it's one of the reasons why we have had the biggest drop in crime of any industrial state in America; why we have the lowest murder rate of any industrial state in America. But we have work to do in this nation. We have work to do to fight a real war, not a phony war, against drugs. And that's something I want to lead, something we haven't had over the course of the past many years, even though the Vice President has been at least allegedly in charge of that war. We have much to do to step up that war, to double the number of drug enforcement agents, to fight both here and abroad, to work with our neighbors in this hemisphere. And I want to call a hemispheric summit just as soon after the 20th of January as possible to fight that war. But we also have to deal with drug education prevention here at home. And that's one of the things that I hope I can lead personally as the President of the United States. We've had great success in my own state. And we've reached out to young people and their families and been able to help them by beginning drug education and prevention in the early elementary grades. So we can fight this war, and we can win this war. And we can do so in a way that marshals our forces, that provides real support for state and local law enforcement officers who have not been getting that support, and do it in a way which will bring down violence in this nation, will help our youngsters to stay away from drugs, will stop this avalanche of drugs that's pouring into the country, and will make it possible for our kids and our families to grow up in safe and secure and decent neighborhoods.

SHAW: Mr. Vice President, your one-minute rebuttal.

BUSH: Well, a lot of what this campaign is about, it seems to me Bernie, goes to the question of values. And here I do have, on this particular question, a big difference with my opponent. You see, I do believe that some crimes are so heinous, so brutal, so outrageous, and I'd say particularly those that result in the death of a police officer, for those real brutal crimes, I do believe in the death penalty, and I think it is a deterrent, and I believe we need it. And I'm glad that the Congress moved on this drug bill and have finally called for that related to these narcotics drug kingpins. And so we just have an honest difference of opinion: I support it and he doesn't.

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See also

The political ad on Willie Horton (1988)

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"Governing through Institution Building" by Johan P. Olsen

Many reformers argue that the future of democracies depends on the quality of their political institutions. If so, it may be worthwhile examining the democratic-instrumental vision of citizens and their representatives -- which assumes that they can and should decide how they might be organized and governed -- and thereby develop a better theoretical understanding of the nature, architecture, dynamics of change, performance, and effects of institutions.

It may be useful to study the possibilities and limitations of governing through deliberately changing institutional arrangements and thereby achieving intended, anticipated and desired effects - including how institutions contribute to organized rule, orderly change, civilized co-existence, unity in diversity and the ability to accommodate and continuously balance rather than eliminate what John Stuart Mill called "standing antagonisms".

This book offers an organization-theory-based institutional approach and it assumes that a fruitful route to improved understanding of political organization and government is to observe large-scale institutional reforms. The primary source of insight is the grand experiment in political integration through institution building and polity formation in Europe - the European Union. Yet, the book relates to century-long controversies concerning what is good government and how best to organize common affairs. The main challenge is to examine the claim that theoretical ideas and concepts developed in the context of the sovereign state are outdated in the context of the emerging European polity and a globalized world and to analyze what students of political institutions, as well as citizens, can learn from recent European experiments in democratic organization and government.

Johan P. Olsen, Professor Emeritus and Former and Founding Director of ARENA - Centre for European Studies, University of Oslo

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Read the first chapter

Η ατυχής νομοθετική τροποποίηση της διαδικασίας επιλογής των Προεδρείων των Ανωτάτων Δικαστηρίων

του Αντώνη Μανιτάκη

www.constitutionalism.gr
13 Σεπτεμβρίου 2010

Με το άρθρο 1 του νόμου 3841/2010 τροποποιήθηκε η διαδικασία επιλογής των Προεδρείων των Ανωτάτων Δικαστηρίων με την παρεμβολή της Διάσκεψης των Προέδρων της Βουλής, η οποία καλείται να διατυπώσει γνώμη επί της προεπιλογής υποψηφίων που κάνει ο Υπουργός Δικαιοσύνης. Η διοικητική Ολομέλεια του ΣτΕ θεώρησε, όταν κλήθηκε από τον Υπουργό να εκφέρει σχετική γνώμη, την τροποποίηση αντισυνταγματική και η διάσκεψη των Προέδρων δεν κατάφερε να διατυπώσει «γνώμη», επειδή τα κόμματα της Αντιπολίτευσης αρνήθηκαν να συμμετάσχουν στη διαδικασία κρίνοντας το νόμο αντισυνταγματικό. Η μελέτη εξετάζει αναλυτικά τους λόγους αντισυνταγματικότητας και επισημαίνει τις αθέλητες θεσμικές και πολιτικές παρενέργειες του νόμου.

Όταν ο κοινός νομοθέτης αγνοώντας τη βούληση του αναθεωρητικού επιχειρεί να τον υποκαταστήσει

1. Τουλάχιστον ως ατυχής θα μπορούσε να χαρακτηριστεί η πρόσφατη νομοθετική πρωτοβουλία του Υπουργού Δικαιοσύνης, με την οποία τροποποιήθηκε η διαδικασία επιλογής των Προέδρων και Αντιπροέδρων των Ανωτάτων δικαστηρίων, που καθόριζε η παράγραφος 3 του άρθρου 49 του Οργανισμού Δικαστηρίων και Κατάστασης Δικαστικών Λειτουργών. Και τούτο, όχι μόνον διότι η σχετική νομοθετική τροποποίηση ήγειρε από την αρχή σοβαρά ζητήματα αντισυνταγματικότητας, αλλά κυρίως διότι αποδοκιμάστηκε πολιτικά και συνταγματικά από το ίδιο το όργανο το οποίο είχε κληθεί να θεραπεύσει τις αδυναμίες της προηγούμενης ρύθμισης αντικαθιστώντας τη μονομερή κυβερνητική επιλογή από την παρεμβολή μιας πρόσθετης συναινετικής-διακομματικής ‘προεπιλογής’ οργάνου της Βουλής. Πράγματι, το όργανο που έπρεπε σύμφωνα με το νόμο να πραγματώσει και να δικαιώσει τη νομοθετική πρωτοβουλία, δηλαδή η Διάσκεψη των Προέδρων, δεν κατάφερε, παραδόξως, πέρα από κάθε προσδοκία, να συναινέσει στη διατύπωση ‘συναινετικής γνώμης’ προς τον Υπουργό, όπως απαιτούσε ο νόμος και ευελπιστούσε ο νομοθέτης. Τούτο συνέβη, διότι σύμπασα η Αντιπολίτευση θεώρησε τη νομοθετική τροποποίηση της συνταγματικής διαδικασίας επιλογής των επικεφαλής της δικαστικής εξουσίας, αντισυνταγματική.

Η παταγώδης αυτή αποτυχία της πρώτης εφαρμογής του νόμου κατέστησε τη νέα διαδικασία επιλογής στην πράξη ανενεργό και έπληξε ανεπανόρθωτα τη νομιμοποιητική δύναμη και, τελικά, το ίδιο το κύρος του νόμου. Υπονόμευσε εξ αυτού του λόγου και την μελλοντική εφαρμογή του, η οποία καθίσταται πλέον προβληματική.

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Justice William Brennan, a liberal lion who wouldn't hire women

by David J. Garrow

Washington Post
October 17, 2010

William J. Brennan Jr. served on the Supreme Court from 1956 to 1990 and came to be seen as "the very symbol of judicial activism." As Seth Stern and Stephen Wermiel write in this superb, definitive and long-awaited biography, based in part on extensive interviews that Brennan gave to Wermiel, he also became "perhaps the most influential justice of the entire twentieth century."

Brennan was a 50-year-old Roman Catholic Democrat and a seven-year veteran of the New Jersey state courts when Republican President Dwight D. Eisenhower -- or, more truthfully, Attorney General Herbert Brownell -- chose him for the Supreme Court. As a state jurist, Brennan "had certainly not developed anything resembling a coherent judicial philosophy," and his first five years on the top court exhibited no consistent approach.

By 1962, however, in tandem with Chief Justice Earl Warren, Brennan had begun to mold a solid liberal majority that revolutionized constitutional interpretation with regard to reapportionment, freedom of speech, privacy and the rights of criminal defendants. Stern and Wermiel reveal, however, that even in the mid-1960s, Brennan's young law clerks were crafting much of the language for the justice's most important opinions, such as New York Times Co. v. Sullivan, which transformed libel law.

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Ο φτωχός συγγενής

της Βάσως Κιντή

Το Βήμα
8 Οκτωβρίου 2010

Σε όλον τον κόσμο οι ανθρωπιστικές σπουδές αντιμετωπίζονται όλο και πιο συχνά ως οι φτωχοί συγγενείς της εκπαίδευσης και της έρευνας. Λιγότεροι φοιτητές τις επιλέγουν, λιγότερα χρήματα συγκεντρώνονται για να τις υποστηρίξουν, πανεπιστημιακά τμήματα αναδιατάσσονται ή κλείνουν. Στη νέα σύνθεση του Εθνικού Συμβουλίου Ερευνας και Τεχνολογίας που ανακοίνωσε το υπουργείο Παιδείας εκλείπουν εντελώς. Οι σπουδές αυτές φαίνονται άχρηστες, περιττές, μια πολυτέλεια για την αργόσχολη τάξη, ένα λείψανο μιας μακρινής εποχής που μοιάζει να μην έχει θέση σήμερα στη ζωή μας.

Οσοι λίγοι τις υπερασπίζονται ακολουθούν, κατά κανόνα, τους εξής δύο δρόμους: είτε αυτάρεσκα θεωρούν πως η αξία τους είναι αυταπόδεικτη (με τίμημα όσοι δεν την αναγνωρίσουν να χαρακτηριστούν αδαείς, άξεστοι και τεχνοκράτες) είτε προβάλλουν μεγαλορρήμονες λόγους περί των σπουδών αυτών, όπως ότι μελετώντας κλασικά κείμενα θα ανακαλύψουμε τα πανανθρώπινα ιδανικά, θα βρούμε το νόημα της ζωής, θα μάθουμε αιώνιες αλήθειες και ηθικά διδάγματα με αποτέλεσμα να γίνουμε καλύτεροι άνθρωποι και πολίτες. Οπως όμως παρατηρεί ο Stanley Fish, οι άνθρωποι των γραμμάτων δεν είναι καθόλου πιο σοφοί ή ηθικοί από τους υπόλοιπους, ενώ επιχειρήματα σαν αυτά ανατροφοδοτούν την παγιωμένη εικόνα ενός αιθεροβάμονος και ελιτίστικου λόγου άσχετου με την πραγματική ζωή.

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Διάβασε εδώ το πλήρες κείμενο

Voters Face Decisions on a Mix of Issues

New York Times
October 5, 2010

The nation’s job woes may be the determining factor in which party controls Congress, but voters across the country will also have the chance to weigh in directly — through ballot initiatives — on some of the other contentious issues that have made cameo turns in the spotlight this year.

In Oklahoma, the ballot will feature a measure to ban state judges from using Islamic law, called Sharia, in court decisions, even though it has never happened. In Washington, voters will address an issue similar to one Republicans successfully kept from coming to a vote in the United States Senate: a proposed tax increase for the rich.

Voters in three states will have the opportunity to take a largely symbolic stand against the federal health care law approved this year by declaring that individuals or business cannot be compelled to buy health insurance. And in Colorado, leaders of all political persuasions are joining to urge voters to reject three tax initiatives they say would drive the state to fiscal calamity.

In total, 155 measures are on the ballots in 36 states, a number roughly unchanged from previous years. While lacking the thematic cohesion of years past — when states around the country simultaneously weighed in on issues like abortion, same-sex marriage or eminent domain — this year’s raft of initiatives, referendums and propositions nonetheless capture the political spirit of the season.

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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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Free and fair

Washington Post
Editorial
August 9, 2010

There are two reasons to hail the adoption of Kenya's new constitution, which won about two-thirds of the vote in a national referendum last week. The first cause for celebration is that the vote itself, and the campaign preceding it, took place, for the most part, peacefully.

This was far from predictable in a country whose last presidential election, in 2007, devolved into horrific ethnic violence that claimed the lives of 1,300 people. But the major political parties that have been governing in coalition since the upheaval basically kept their promises to keep the voting free and fair.

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Elena Kagan Sworn in at Supreme Court

Associated Press
August 7, 2010

Elena Kagan has been sworn in as the 112th justice and fourth woman ever to serve on the Supreme Court. She'll be formally installed at the start of the court's new term in October.

Kagan Is Sworn in as the Fourth Woman, and 112th Justice, on the Supreme Court

New York Times
August 7, 2010

Elena Kagan was sworn in on Saturday as the 112th person, and fourth woman, to serve on the Supreme Court, continuing a generational and demographic transformation of the nation’s highest bench.

In keeping with tradition, Ms. Kagan first took the constitutional oath given to a wide array of officials and then the judicial oath administered to those wearing the robe. Joined by family and friends in the Supreme Court building, she swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

The low-key formal ceremony came two days after she was confirmed by the Senate and a day after President Obama marked her ascension with a jubilant televised celebration in the East Room of the White House. She was Mr. Obama’s second successful nominee to the court, and her approval by the Senate was taken as a jolt of validation for a White House battered by political and economic troubles.

Succeeding Justice John Paul Stevens, the court’s retiring liberal leader, Justice Kagan, 50, presumably will not drastically change the philosophical balance on the divided court. But if she were to serve until she was 90, as Justice Stevens has, she would have four decades to shape the nation’s legal architecture, long after the man who appointed her left the White House. Even a shorter tenure would give her time to leave her mark.

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Senate Confirms Kagan for Court

Wall Street Journal
August 6, 2010

The Senate on Thursday confirmed Elena Kagan on a 63-37 vote to become an associate justice of the U.S. Supreme Court, with a handful of Republicans joining almost all Democrats in making her the fourth woman to serve on the high court.

When the court's new term starts in October, Ms. Kagan, 50 years old, will join Justices Ruth Bader Ginsburg and Sonia Sotomayor as the first trio of women in the court's history.

Fifty-eight Democrats and independents, as well as five Republicans, voted for Ms. Kagan. Thirty-six Republicans and one Democrat, Sen. Ben Nelson of Nebraska, voted against her.

The five Republicans who supported Ms. Kagan were Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire.

With the Senate vote, President Barack Obama continues to put his stamp on the top court, following last year's confirmation of Justice Sotomayor, another relatively youthful woman who could serve for decades.

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Kenyans celebrate approval of new constitution

Washington Post
August 6, 2010

Kenyans overwhelmingly approved a new constitution that promises to address the core problems of governance, such as corruption and tribalism, that have plagued this country throughout its post-colonial history.

Nearly 70 percent of Kenyan voters backed the new draft, the nation's election authority announced Thursday, citing official tallies from most polling stations.

The constitution's supporters declared that Kenya had entered a new era.

"Saying that we have won is an understatement," Energy Minister Kiraitu Murungi told reporters. "Kenya has been completely reborn."

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Scalia Was Right

by James Taranto

Wall Street Journal
August 5, 2010

For the first time, a federal judge has held that the Constitution mandates the legal redefinition of marriage. The California Supreme Court had reached a similar conclusion in 2008, and voters responded by amending the state constitution via a ballot measure known as Proposition 8. If yesterday's ruling is eventually upheld by the U.S. Supreme Court, it would mandate same-sex marriage nationwide. The Los Angeles Times describes the ruling in Perry v. Schwarzenegger:

California 'has no interest in differentiating between same-sex and opposite-sex unions,' U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling. . . .

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

"Walker stayed his ruling at least until Friday, when he will hold another hearing," the Times reports. Presumably it will be appealed to the Ninth U.S. Circuit Court of Appeals. That circuit is notoriously liberal, so one would expect the ruling would be likelier than not to be upheld, whereupon it would go to the Supreme Court.

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Kenya Stakes Reinvention on Constitution Vote

New York Times
August 3, 2010

Ever since independence in 1963, Kenya has been ruled by a winner-take-all political system that has exacerbated ethnic divisions and steadily turned the country into one of the most corrupt on the continent.

On Wednesday, that could change.

Starting before dawn, this nation, a linchpin in sub-Saharan Africa, will vote on a new constitution that seeks to address the flawed political dynamics that exploded after the disputed 2007 presidential election.

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‘Law & Order’ Probably Doesn’t Like You

by Stanley Fish

New York Times
August 2, 2010

Nothing personal. But now that Dick Wolf’s “Law & Order” has called it a day — or rather a 20-year run — it is time to notice what may be its most remarkable feature; not the brilliant formula that offers both the comfort of predictability and the promise of constant surprise (an episode almost never ends up where it seems to be going at the beginning), not the ability of the show to survive major cast changes without missing a beat, not the considerable accomplishment of making the arcane vocabulary of the law ( “fruit of the poisonous tree,” “asked and answered,” “prejudicial,” “allocute,” “goes to relevance”) as familiar to TV viewers as the jargon of sports, but the extraordinarily long list of professions, classes and category of persons it doesn’t like.

Begin with rich people. “Law & Order” hates rich people; they are arrogant, they are condescending, they consume conspicuously, and, worst of all, they believe they are above the law. In one episode, a Britney-Spears-type starlet is informed of a $400,000 blackmail demand made by paparazzi. She retorts, “$400, 000 is less than I spend on sweatpants.” In another episode (“Venom”), a 64-year old woman who is bent on protecting her 27-year old husband says to one of the district attorneys: “You have no idea of what a woman in my position can do.” Actually they have a very good idea. Time and again wealthy people manipulate the system by getting well connected friends to intervene in cases or by hiring high-priced lawyers who know how to put up procedural roadblocks forever.

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Fertility's New Legal Front

Wall Street Journal
August 3, 2010

Advances in reproductive technology that were the stuff of science fiction just a few decades ago are wreaking havoc on a corner of the Social Security system—survivor benefits for some children whose parents have died.

Every year, more babies are born stemming from sperm or embryos that have been stored for months or years. In some cases, one parent has already died, usually the father.

Although the federal government generally must pay monthly benefits to children when parents die, the law is murky on whether it has to do the same for a child conceived after a parent's death. Sometimes, the Social Security Administration pays, sometimes it doesn't. So far, the decision has largely depended on the laws in the state in which the deceased parent lived.

"We're in a brave new world here.…Technology has gone far beyond where the law ever dreamed it would," said Sonny Miller, a lawyer in Minnesota and a member of the legislative committee of the Minnesota bar association's probate and trust law section.

State laws on posthumous birth—or the birth of a child after the death of a parent—vary widely. Eleven states explicitly allow recognition of a parent-child relationship that begins with posthumous conception. The laws of most states, however, define the parent-child relationship more traditionally. For the relationship to exist, a parent must be alive at the time of conception.

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The Temptation of Elena Kagan

by Ronald Dworkin

New York Review of Books
August 19, 2010

Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of Chicago Law School, explained why:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public…. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.

She offered clear advice. Though nominees should not declare their voting intentions about specific cases on the horizon, she said,

a nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.

Her own confirmation hearings in late June were a Galilean moment. How much of her 1995 statement would she recant? Almost all of it, it turned out. She said that Senator Orrin Hatch of Utah had persuaded her, in a private meeting before the hearings, that the “balance” of her earlier statement was “a little off.” So, contrary to her own advice, she would not “grade” either the justices of the present court or the Court’s past decisions, she would not speculate about hypothetical cases, and she would certainly not discuss “general issues like affirmative action or abortion.” On the contrary, she vowed to say nothing from which the public might draw even any general assumptions about the political impact she might have on the Supreme Court.

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Living It Up

by Adrian Vermeule

The New Republic
August 2, 2010

Book Reviews of
Keeping Faith with the Constitution
by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder

The Living Constitution
by David Strauss

Justice Holmes described the Constitution as an “organism,” and some people say that “we have a living constitution.” What do such metaphors mean? Two new books lay out two different accounts of living constitutionalism: “constitutional fidelity” in the first book, “common-law constitutionalism” in the second. These living constitutionalisms have a common enemy—originalism, roughly the idea that the Constitution should be read according to the public meaning the founding generation understood it to have. But once that enemy is slain, the two versions of living constitutionalism face new challenges. In the case of constitutional fidelity the challenges are insuperable, while for common-law constitutionalism they are merely daunting.

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Kenyans to Vote on Controversial Constitution

Wall Street Journal
August 2, 2010

Kenyans will vote on a controversial new constitution in a referendum on Wednesday—the latest step in a series of efforts by the nation's leaders to bring political change to their country to quell tribal tensions.

The U.S., eager to bring stability to a regional powerhouse and a strong ally in its fight against terrorism, maintains a new constitution is central to that effort. U.S. officials, including the Kenya ambassador, Michael Ranneberger, and Vice President Joseph Biden, who visited Nairobi in June, have spoken at length about the importance of the draft and the need for change. More than 1,300 people were killed in ethnic violence in the country in early 2008.

"A new constitution, if it is adopted, will strengthen Kenya's democratic institutions," said Johnnie Carson, the U.S. assistant secretary of state for African affairs in a recent interview. "We believe this is an opportunity for fundamental change, but the decision for that change is in the hands of Kenyans."

The draft provides for a more decentralized democracy that checks the power of the president and establishes two houses of parliament. The current system of government allows for an imperial presidency, where the executive branch holds most of the power. Historically, whatever tribe has held executive power has become the primary beneficiary of any government largesse.

The document also tackles the controversial issues of abortion, Islamic courts and land distribution. It allows, for example, the state to seize property for the benefit of the state, and gives parliament the mandate to enact land reform to address inequities and corruption.

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