"The Propriety of Liberty: Persons, Passions, and Judgement in Modern Political Thought"

by Duncan Kelly

In this book, Duncan Kelly excavates, from the history of modern political thought, a largely forgotten claim about liberty as a form of propriety. By rethinking the intellectual and historical foundations of modern accounts of freedom, he brings into focus how this major vision of liberty developed between the seventeenth and the nineteenth centuries.

In his framework, celebrated political writers, including John Locke, Montesquieu, Adam Smith, John Stuart Mill, and Thomas Hill Green pursue the claim that freedom is best understood as a form of responsible agency or propriety, and they do so by reconciling key moral and philosophical claims with classical and contemporary political theory. Their approach broadly assumes that only those persons who appropriately regulate their conduct can be thought of as free and responsible. At the same time, however, they recognize that such internal forms of self-propriety must be judged within the wider context of social and political life. Kelly shows how the intellectual and practical demands of such a synthesis require these great writers to consider freedom as part of a broader set of arguments about the nature of personhood, the potentially irrational impact of the passions, and the obstinate problems of individual and political judgement. By exploring these relationships, The Propriety of Liberty not only revises the intellectual history of modern political thought, but also sheds light on contemporary debates about freedom and agency.

Duncan Kelly is university senior lecturer in political theory in the Department of Politics and International Studies, University of Cambridge, and fellow of Jesus College, Cambridge. He is the author of The State of the Political.

Gingrich: Remaining Iowa justices should resign

Des Moines Register
November 16, 2010

Former U.S. House Speaker Newt Gingrich, in West Des Moines for a book-signing today, said the four remaining Iowa Supreme Court justices should resign.

Gingrich said it was clear after the three justices on the ballot were defeated that the other four also would have lost their jobs. Bob Vander Plaats, who headed the campaign to defeat justices, has made similar remarks.

“I mean it’s clear if they had been on the ballot, they’d have been repealed,” Gingrich said.

He said the integrity and authority of the system comes from the consent of the governed, “then the governed have indicated they don’t agree with this court … so I think they have any sense of integrity about protecting the court, they’ll step down.”

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Abortion Common Ground: A Pro-Life Agenda

by William Saletan

Slate
November 16, 2010

A few weeks ago, pro-life and pro-choice thinkers met at Princeton's University Center for Human Values for an open-minded discussion of their differences and possible areas of collaboration. There was plenty of disagreement, and in the weeks since, there's been lots of sniping back and forth about whether the conference was slanted, what was agreed to, and the perfidy of the other side. But the conference did illuminate several steps each side could take to advance a common agenda. Today I'll examine the lessons for pro-lifers. Tomorrow I'll examine the lessons for pro-choicers.

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Image Rights vs. Free Speech in Video Game Suit

New York Times
November 15, 2010

When Sam Keller, a former quarterback at Arizona State, sued the video game publisher Electronic Arts last year, he was seeking compensation for himself and other college athletes whose names were not used but whose images he contended were being illegally used by the company.

But to the media conglomerates, athletes, actors, First Amendment advocates and others who have recently weighed in on the case, Keller’s lawsuit is about much more than video games. The outcome of a recent appeal filed by Electronic Arts, their lawyers say, could rewrite the rules that dictate how much ownership public figures have over their images — and the extent to which outside parties, including media and entertainment companies — can profit from them.

The case is drawing attention because it gets to the heart of a highly contested legal question: when should a person’s right to control his image trump the free-speech rights of others to use it?

“It’s one of the most important clashes in all of First Amendment law, and one of the more unsettled areas,” said David L. Hudson Jr., a scholar with the First Amendment Center at Vanderbilt University. “I think it’s an area that is crying out for Supreme Court review in the right case.”

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The Limits of Constitutional Democracy

Edited by Jeffrey K. Tulis and Stephen Macedo

Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future.

The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation.

In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.

Jeffrey K. Tulis teaches political science at the University of Texas, Austin. His books include The Rhetorical Presidency (Princeton). Stephen Macedo is the Laurance S. Rockefeller Professor of Politics at Princeton University. His numerous books include Democracy at Risk.

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A Defeat for Checks and Balances

New York Times
Editorial
November 12, 2010

The Supreme Court’s decision on Friday to allow the “don’t ask, don’t tell” policy to remain in effect is a victory for theory over reality and a defeat for America’s system of checks and balances.

It also underscores the bravery and competence of Virginia Phillips, the federal judge who mustered logic and persuasive evidence in September when she struck down the statute enacting the policy. She did the same in October when she issued a ban on its enforcement.

The Supreme Court’s order included no explanation, so it’s sensible to look for that in the Justice Department filing that urged the court to rule as it did. Repeatedly, it mentioned repeal of the law by Congress and the process under way in the executive branch laying the groundwork for that. It said the wrong way to overturn the law is by “judicial invalidation” and the right way is by “repeal of an act of Congress by Congress itself.”

Sometimes the courts have to act when Congress lacks the sense or the courage to do so. The Senate could have joined the House in repealing the antigay law in September. It did not. Given the sharp rightward turn of Congress in the elections, how can the Justice Department now make that argument with a straight face?

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The Oklahoma Referendum Prohibiting State Courts from Applying International or Sharia Law

by Marci A. Hamilton

FindLaw
November 11, 2010

On Election Day, Oklahoma voters approved a referendum that serves as an interesting microcosm of some of the most difficult challenges facing the United States now. The referendum amended the state constitution (via State Question Number 755) to forbid Oklahoma's courts from applying international law or Sharia law (also known as Islamic law) in any case before them.

The international-law prohibition is a fascinating attempt by Oklahomans to stave off the increasing and unavoidable globalization of our lives. In turn, the prohibition on Sharia law seems to be Oklahomans' reaction to the demonic Taliban and al-Qaeda forces that are pledged to end our way of life and America itself.

Most Americans understand Sharia law to be the motivating doctrine behind the violently radical Islamicists, and one can hardly fault the Oklahomans for seeking to build a legal barrier around their state to keep terrorism out. While the prohibition on the use of international law also presents interesting issues, I will focus here on the Sharia law prohibition. It is problematic.

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For an opposite position see the editorial of Washington Times (November 16, 2010)

A Blow to the Courts

New York Times
Editorial
November 8, 2010

Like the rest of this year’s political campaign, state judicial elections were awash in cash and blaring attack ads. The spectacle raises legitimate doubts about the impartiality of even the most respected judges.

Among last Tuesday’s alarming results was the defeat of three Iowa Supreme Court justices who had joined in last year’s unanimous ruling to permit same-sex marriage there. The three sought to remain above the fray. They did not raise money and made few public appearances. A group supporting them, Fair Courts for Us, reported spending about $400,000.

Their supporters were far outgunned by the National Organization for Marriage, the American Family Association and other groups that spent at least $1 million urging voters to oust them. The 2009 ruling will stand. But the judges’ defeat is sure to make other elected judges shy from rendering controversial rulings, especially before elections.

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Jeffrey Brand-Ballard, "Limits of Legality: The Ethics of Lawless Judging"

Law and Politics Book Review
Vol. 20 No. 11 (November, 2010) pp.590-594

Reviewed by Emmett Macfarlane, Visiting Researcher and Postdoctoral Fellow, Harvard Law School, Harvard University

Normative accounts of judging typically offer arguments regarding how judges ought to apply the law. This vast literature contains various competing theories of interpretation, adjudication or of the law itself. LIMITS OF LEGALITY advances a complex and controversial argument about whether judges are, in fact, obligated to render what they view as the legally required decision when they have strong moral objections. Jeffrey Brand-Ballard’s book, rooted in the philosophy of ethics, tackles a question that most judges, lawyers and legal scholars take for granted: are judges morally obligated to adhere to the law?

Brand-Ballard’s book is a finely detailed, philosophically sophisticated and almost exhaustingly thorough account of legal and moral perspectives concerning judicial fidelity to the law. The interdisciplinary nature of the work is impressive; it tackles a vast array of topics ranging from judicial ethics and moral reasoning to concepts explored in legal theory, including the rule of law and the judicial role. While controversial, the author’s central argument is highly nuanced and often carefully circumscribed. Brand-Ballard contends that even in reasonably just legal systems judges are not morally obligated to adhere to the law when they believe the legally-required result is unjust. His argument is somewhat conditional: judicial deviation from the law is not limited only to exceptional cases that are viewed as “extremely” unjust; however, judges should nevertheless avoid deviating in all “suboptimal-result” cases or they risk damaging the rule of law. This component of the argument, while providing balance to the author’s highly contentious central claim, becomes problematic in the second part of the book where Brand-Ballard expounds upon the normative structure specifying how judges can deviate while protecting the rule of law.

LIMITS OF LEGALITY consists of two parts. Part I explores conventional arguments that judges have a moral duty to adhere to the law. It begins with an examination of judicial authority premised on the natural rights of judges and the idea that the state authorizes them to use force in the performance of their duties (chapter 2). Brand-Ballard argues that our natural rights to use nondefensive force (to seek restitution or to punish for perceived wrongs, for example) are morally prohibited in civil society, but that the law creates an exception for state actors like judges to exercise such force. Yet, he argues that many, if not most, people go too far in adopting the “undermining principle,” a standard which holds that if the law requires a public official to use force in a given situation, then she has no moral reason not to use it (p.34).

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Randall Peerenboom, "Judicial Independence in China: Lessons for Global Rule of Law Promotion"

Law and Politics Book Review
Vol. 20 No. 11 (November, 2010) pp.595-601

Reviewed by Michael W. Dowdle, National University of Singapore Faculty of Law.

"Judicial independence” is a difficult metaphor. No effective judiciary is truly independent. Judicial effectiveness relies more on interdependence than on independence per se. Of course, when looking at familiar constitutional systems, this distinction – between independence and interdependence – is obscured by our cozy familiarities. In the United States, for example, we celebrate the effects of life-time tenure, but ignore those of the political vetting processes that take place prior to nomination.

All in all, however, our judicial system works, and that alone appears sufficient to give us confidence in the ultimate independence of our judiciary. But problems arise when we apply this metaphor to what we might call “alien” constitutional systems – constitutional environments whose fundamental organization is incompatible with our constitutional presumptions. Here, the relationship between constitutional structure and constitutional consequent are often complicated by the presence of unfamiliar social dynamics that are unaccounted for by the standard constitutional anticipations that derive from our own understandings of our own constitutional systems. Understanding these alien systems requires us to approach them as distinctive systems in their own right, and not as simply ersatz reproductions of our own.

This is what Randall Peerenboom’s edited volume, JUDICIAL INDEPENDENCE IN CHINA: LESSONS FOR GLOBAL RULE OF LAW PROMOTION, does in the context of the People’s Republic of China [PRC]. The PRC’s is clearly an alien constitutional structure, as we defined the term above. It is not founded on multi-party, democratic elections. It does not, for the most part, work to limit governmental power or to protect the politically vulnerable. It does not revolve around an ultimate intention to preserve one’s exercise and enjoyment of those liberal rights that many regard as fundamental to being “human.” It affirmatively rejects the concept of “separation of powers” as a foundational organizing principle.

And relatedly, China’s constitutional system – if one even dares call it that – is routinely if not invariably seen as one in which the judiciary is not meaningfully “independent.” But what does that mean? What would or should judicial independence look like in the context of China’s constitutional system? What would or should it contribute to that system? These are questions that have rarely been asked – because we have tended to presume that their answers are the same with regards to China as they are with regards to the mature constitutional systems of the advanced industrialized democracies of the North Atlantic. Peerenboom’s volume suggests that this presumption is fallacious.

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"Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law" by Paul Raffield

Through an examination of six plays by Shakespeare, the author presents an innovative analysis of political developments in the last decade of Elizabethan rule and their representation in poetic drama of the period. The playhouses of London in the 1590s provided a distinctive forum for discourse and dissemination of nascent political ideas. Shakespeare exploited the unique capacity of theatre to humanise contemporary debate concerning the powers of the crown and the extent to which these were limited by law. The autonomous subject of law is represented in the plays considered here as a sentient political being whose natural rights and liberties found an analogue in the narratives of common law, as recorded in juristic texts and law reports of the early modern era. Each chapter reflects a particular aspect of constitutional development in the late-Elizabethan state. These include abuse of the royal prerogative by the crown and its agents; the emergence of a politicised middle class citizenry, empowered by the ascendancy of contract law; the limitations imposed by the courts on the lawful extent of divinely ordained kingship; the natural and rational authority of unwritten lex terrae; the poetic imagination of the judiciary and its role in shaping the constitution; and the fusion of temporal and spiritual jurisdiction in the person of the monarch. The book advances original insights into the complex and agonistic relationship between theatre, politics, and law. The plays discussed offer persuasive images both of the crown's absolutist tendencies and of alternative polities predicated upon classical and humanist principles of justice, equity, and community.

It is now canon in progressive U.S. legal scholarship that to focus solely on the text of our Constitution is myopic. We look as well for "constitutional moments", moments when the zeitgeist is so transformed that our fundamental legal charter changes with it. In this breathtakingly erudite book, Paul Raffield argues that the late-Elizabethan period was such a "constitutional moment" in England, a moment literally "played out" for the polity by the greatest dramatist of all time. A lawyer and a thespian, Raffield handles both legal and literary sources with exquisite care. As with the works of the Old Masters, one dwells pleasurably on each detail until their cumulative force presses one backward to see the canvas in its sudden, glorious entirety. A major achievement.

Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, NYU School of Law

Divided We Thrive

by Jonathan Rauch

New York Times
November 6, 2010

A grand victory for Republicans in the 2010 midterm election? Yes, of course. But also no. In all three of the most recent earthshaking midterm elections — 1994, 2006 and now 2010 — the same candidate won: divided government.

That is not a coincidence. In the last two decades, a strong and persistent pattern has emerged, one that will dominate our politics for some time to come, because it is rooted in two important political realities. First, the public strongly prefers divided government. Second, it has every reason to.

Divided government comes about when one party controls the White House and the other controls either or both chambers of Congress. Washington has been split between the parties for more than 21 of the past 30 years (the exceptions being 1993 and 1994, part of 2001, 2003 to 2006, and the past two years). The middle four of President George W. Bush’s eight years represented the longest stint of unified government in that span. Not at all coincidentally, they also saw his party’s support nosedive.


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Iowa ousts 3 judges after gay marriage ruling

USA Today
November 3, 2010

Opponents of an April 2009 Iowa Supreme Court ruling that made Iowa the first state in the Midwest to sanction same-sex marriage celebrated on Wednesday after the ouster of three Iowa Supreme Court justices involved in the ruling.

Bob Vander Plaats, lead spokesman for the pro-removal Iowa For Freedom campaign, hailed the outcome as a victory against a court that overstepped its bounds, and added he believes the vote will ripple beyond Iowa as a sign to other jurists who rule in gay-marriage cases.

"It's the people rising up, and having a voice for freedom, and holding an out-of-control court in check" Vander Plaats said. "I think we sent Iowa a message, but also sent the country a message: The power is still inherent in the people."

About 54% of voters chose "No" Tuesday, removing Chief Justice Marsha Ternus and Justices David Baker and Michael Streit in what in other years had been a routine retention election.

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From Iowa, a chilling message for judges

USA Today
Editorial
November 5, 2010

Marsha Ternus, David Baker and Michael Streit are three of the incumbents tossed out of office Tuesday by angry voters. They aren't corrupt or incompetent. They aren't even politicians. They're state Supreme Court justices, and the circumstances of their eviction should be deeply troubling to anyone who believes in the rule of law.

The judges' sin was that they did their jobs. They read the state constitution and interpreted its meaning without regard to politics, public opinion or the passions of the moment. That reading led them to invalidate an Iowa law limiting marriage to a man and woman.

The court's vote was 7-0, and it doesn't appear to have been politically inspired. Five of the justices were named by Democratic governors and two by Republicans. In all probability, at least some of them personally oppose same-sex marriage. Nor do Iowans lack a process for amending their founding legal document. But on Tuesday, for the first time since Iowa's judicial selection system began almost 50 years ago, they simply tossed the judges out.

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Iowa's Total Recall

Wall Street Journal
Editorial
November 6, 2010

Iowans made a clean sweep of the state Supreme Court on Tuesday, voting to recall all three justices who were up for a retention election. The rout is being played as an unprecedented politicization of state courts. Maybe if judges behaved less like politicians, they'd have less reason to fear recall votes.

Voters were expressing their dismay over a 2009 Iowa court ruling that gave the green light to same-sex marriage. That unanimous decision, which overturned a state law defining marriage as between a man and a woman, struck voters as an attempt by the seven justices to impose their views on the state. This is precisely the kind of judicial arrogance—finding a right to gay marriage in the state constitution after many decades in which no one noticed it—that the recall election was designed for.

To choose its judges, Iowa employs a version of the so-called Missouri plan, whereby a state judicial nominating commission submits two or three names to the Governor from which he may choose a new judge. Once on the bench, judges face retention elections after the first year and then every eight years to remain on the court.

In Iowa and most other states that run similar methods of judicial selection, retention elections are typically pro-forma. Judges run unopposed, and voters are rarely motivated to shake up state courts. Nationally, some 99% of judges win their retention elections, and Tuesday's triple ouster was the first jettisoning of Supreme Court justices since Iowa adopted the current system in 1962.

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γράφουν: Μ. Παντελίδου-Μαλούτα, Βάσω Κιντή, Θανάσης Κ. Παπαχρίστου, Μαρίνα Μαροπούλου, Νέστορας Ε. Κουράκης, Λίλιαν Μήτρου, Αντώνης Καραμπατζός, Άννα-Ιάσμη Βαλλιανάτου, Αντιγόνη Δήμα, Ειρήνη Βλάχου, Αθανάσιος Αναγνωστόπουλος

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A blow to judicial tyranny

Washington Times
Editorial
November 4, 2010

This week's elections weren't just about the economy. Concerned about judicial tyranny, Iowans booted all three of the state Supreme Court justices who appeared on Tuesday's ballot - the first high court justices to be defeated since 1962, when Iowans created a system of voting on whether or not judges should be retained.

The Hawkeye State's judicial elections rarely generate much controversy or interest, with most judges generally enjoying approval levels of around 75 percent. That changed with the high court's unanimous 2009 decision discovering a right to homosexual "marriage" in the state constitution - a view that would have shocked those who drafted the document long before homosexuality was the subject of polite conversation, let alone political debate.

Most of the voters repudiating those justices oppose homosexual marriage, but the rebuke did not come just from traditional conservatives. In a state where polls show residents evenly divided on the issue, opponents of homosexual marriage were joined by political moderates and even supporters of homosexual marriage who understand there is a more fundamental issue at stake than who can marry whom. For those voters, the uncharacteristic ousters appear to have been driven by a distaste for judges who attempt to rewrite the law. In our system of divided government, members of the judicial branch have a very specific duty to interpret the fine points of constitutional law and to apply the meaning of more mundane legislation to specific cases. When judges step outside this role and act as robed political leaders, they don't just become controversial, they become a threat to our political system based on the separation of powers.

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Putting a halt to judicial elections

Washington Post
Editorial
November 4, 2010

THE TELEVISION ads were vicious. One featured the silhouettes of three convicted murderers boasting about their crimes and slammed an Illinois candidate for siding with such criminals "over and over again." Another falsely accused a Michigan candidate of preventing citizens from holding polluters accountable. A third pilloried Iowa incumbents for "ignoring . . . traditional values" and "the will of voters."

Although couched in partisan terms, the ads targeted not politicians but judges. And the attacks occurred in uncontested retention elections, which were intended to insulate jurists from the most distasteful elements of a political campaign. If they ever succeeded in that goal, they no longer do.

On Tuesday, Iowa voters kicked out three state Supreme Court justices who joined in a unanimous opinion nullifying that state's ban on gay marriage. Judges up for retention votes in Michigan and Illinois also were subjected to nasty, expensive and misleading attack campaigns, although they managed to hang on to their seats. Even positive ads in a low-key election can erode the legitimacy of the bench when they suggest that a judge deserves reelection because he reached the "right" result on a given issue - and would probably deliver similar results in the future. In some jurisdictions, judicial candidates run under party affiliation - an offensively obvious breach of the idea that judges should be neutral and free from any political agenda.

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Jousting Justices

by Adam Cohen

New York Times
November 5, 2010

In these equable days on the Supreme Court, when dissents are fashioned as polite disagreements and Antonin Scalia and Ruth Bader Ginsburg are the best of friends, it is hard to imagine a time when the court was a roiling caldron of ill will. But so it has been at various points in its history — “nine scorpions in a bottle,” in the phrase attributed, perhaps erroneously, to Oliver Wendell Holmes Jr.

Noah Feldman, a Harvard Law School professor, draws on that barbed aphorism for the title of his smart and engaging group biography of four larger-than-life justices appointed by Franklin D. Roose­velt. Felix Frankfurter, Robert Jackson, Hugo Black and William O. Douglas first served together in 1941, when World War II was raging in Europe, and their contentious terms continued through 1954, when Brown v. Board of Education was decided.

Although all were committed New Dealers and liberals, each adopted his own theory of the Constitution. The visions they expounded still hold sway and, to a striking extent, their interpretive battles are the ones that continue to preoccupy lawyers, law professors and judges.

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Ballot initiatives Change we can do without

Economist
Novermber 4, 2010

Even the supporters of California’s Proposition 19, the historic ballot measure that would have legalised marijuana, seemed surprised earlier this year when polls showed the Yes campaign in the lead. Usually, they cautioned, voters become more conservative, in the sense of cautious, as election day nears—and so it proved in this case. California will not legalise cannabis after all.

In practical terms it won’t matter much, because another law, signed this year by Governor Arnold Schwarzenegger (who opposed Proposition 19), in effect decriminalises cannabis, making the penalty for owning a bit of pot equivalent to a traffic ticket. But the defeat of the most prominent of this year’s initiatives set a trend: voters across the country were sceptical of sweeping changes. Those in Arizona and South Dakota, for instance, said no to legalising even medical marijuana.

Small-c conservatism may also explain why voters in the state officially called the State of Rhode Island and Providence Plantations woke up the next morning, having rejected dropping the Providence Plantations (with their whiff of slavery) from its name. Voters in Arkansas, South Carolina and Tennessee amended their state constitutions with the explicit right to hunt and fish, but that hardly changes life in these states. (Arizonans voted No on the same matter, perhaps seeing no need.) Voters in Kansas decided to put the right to bear arms into their state constitution, which is more redundant than radical.

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The Six Stages of the Creation of the State

by Franz Oppenheimer

Mises Daily
November 5, 2010

Franz Oppenheimer (1864–1943) was a German-Jewish sociologist and political
economist, best known for his work on the fundamental sociology of the state. His book The State: Its History and Development Viewed Sociologically was the prototype for Albert Jay Nock's writing, for Frank Chodorov's work, and even for the theoretical edifice that later became Rothbardianism.
 

In the genesis of the state, from the subjection of a peasant folk by a tribe of herdsmen or by sea nomads, six stages may be distinguished.

In the following discussion it should not be assumed that the actual historical development must, in each particular case, climb the entire scale step by step. Although, even here, the argument does not depend upon bare theoretical construction, since every particular stage is found in numerous examples, both in the world's history and in ethnology, and there are states which have apparently progressed through them all. But there are many more that have skipped one or more of these stages.

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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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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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