Αριστερά και Δημοκρατία

του Σταύρου Τσακυράκη

Τα Νέα
28 Ιουλίου 2012

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

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

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

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All Three Branches of Government Are Acting Above the Law

by Andrew Napolitano

Reason
July 19, 2012

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

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

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

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

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James Madison and the Making of America

Kevin R. C. Gutzman

reviewed by Scott Douglas Gerber

Law & Politics Book Review
July 2012

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

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

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

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Intention and the Canons of Legal Interpretation

by Stanley Fish

New York Times
July 16, 2012

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

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

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

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The Upside-Down Constitution

Michael S. Greve

reviewed by James A. Gardner

Law & Politics Book Review
July 2012

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

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

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

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

by Damon W. Root

Reason
July 10, 2012

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

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

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Merkel Wrestles with Court over Europe's Future

Spiegel
July 9, 2012

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

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

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

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

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

by Jürgen Habermas

European Journal of International Law
May 2012

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

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The Supreme Court’s Most Impressive Achievement

by Stephen L. Carter

Bloomberg
June 29, 2012

The most fascinating aspect of the Supreme Court’s anticlimactic decision to uphold the Affordable Care Act isn’t the outcome. It’s that until the ruling was handed down, nobody outside the court knew what the outcome was going to be.

Imagine that. Smack in the middle of a city where leaks are a way of life, here was a pending action that pundits were proclaiming would determine President Barack Obama’s legacy, and the capital’s legion of political reporters was unable to ferret out the smallest advance hint of the court’s intentions -- even though the initial vote probably came three months ago. The justices themselves, their law clerks and all the personnel of the court cooperate in maintaining the veil.

In an era when we have become accustomed to a government that can’t keep its secrets, an institution whose members know how to keep their mouths shut is refreshing. The recent cascade of disclosures of national-security information from the Obama administration is both embarrassing and destructive. It is not, however, atypical. The old cliche is wrong: Washington doesn’t leak like a sieve. It leaks like a flood.

The current contretemps isn’t even the administration’s first episode of national-security leakage. Shortly before Obama decided on the Afghanistan surge, his consideration of one was leaked to the press. As analysts pointed out, the leak was almost certainly a device to pressure the White House to go ahead with the surge.

“Wires climb with secrets,” Carl Sandburg wrote in his poem “Skyscraper.” Had he been writing about Washington, he might have said instead that wires buzz with secrets -- because, for too many people who possess them, the great joy of having a secret seems to be the sharing. One reason to admire the court, even when one disagrees with it, is its ability to withstand the temptation to which other government bodies regularly yield.

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The Decline of Democracy

by Bret Stephens

Wall Street Journal
June 18, 2012

Democracy is the worst form of government, except for all those other forms that have been tried from time to time. Everyone knows who said this, and everyone thinks it's true. But is it, really?

After last weekend I've begun to have my doubts. In Egypt, the ruling military junta reacted to the apparent victory of Muslim Brotherhood presidential candidate Mohammed Morsi by stripping the presidential office of its powers. That came just days after Egypt's top court dissolved the Islamist-dominated parliament, which had been freely elected only a few months ago.

How arbitrary. What an affront to the Egyptian people. Now let's hope it works.

Then there's Greece, which also had an election over the weekend. The Greeks are supposed to have made the "responsible" choice in the person of Antonis Samaras, the Amherst- and Harvard-educated leader of the center-right New Democracy party. Responsible in this case means trying to stay in the euro zone by again renegotiating the terms of a bailout that Greeks cannot possibly repay and will not likely honor.

Yet the more depressing fact about the election is that Mr. Samaras didn't even get 30% of the vote. The rest was divided among the radical-left Syriza (27%), the socialist Pasok (12.3%), the anti-German Independent Greeks (7.5%), the neo-Nazi Golden Dawn (7%), the center-left Democratic Left (6.2%) and, finally, the good old Communist Party (4.5%).

In other words, the Greeks gave a solid 46% of their vote to parties that are evil, crazy or both, even while erring on the side of "sanity" with parties that are merely foolish and discredited. Imagine that in 1980 Jimmy Carter had eked out a slim victory over a Gus Hall-Lyndon LaRouche ticket, and you have the American equivalent to what just happened in Greece.

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Fixing Citizens United

by Geoffrey R. Stone

Huffington Post
June 12, 2012

Any intelligent person following American politics these days should be deeply distressed by the ever-growing role of big money in our electoral process. The extraordinary concentration of wealth in the hands of relatively few Americans has completely distorted the nature of political discourse. As multi-millionaires, billionaires and powerful corporations are now free to spend unlimited amounts in order to dominate public debate, we have moved from a political system founded on the aspiration of one person/one vote to one increasingly founded on money/money/money.

Of course, there are those who say that money doesn't really matter. What matters, they say, is the quality of the candidates and the strength of their ideas. Unfortunately, in a world of high-stakes and high-cost media, this is nonsense. Speech matters. It shapes people's perceptions, knowledge and attitudes. Why else would businesses spend billions of dollars each year on commercial advertising? Corporations and billionaires are not stupid. They would not waste millions of dollars to fund an endless flood of political ads if those ads didn't pay off. They do. Money may not guarantee victory, but it definitely helps.

Imagine a presidential debate in which the candidates were invited to buy debate time. Instead of the debate time being allocated equally, each candidate would bid for minutes, so the candidate with the most money would buy the most minutes in the debate. What would we think of that? That is effectively what has happened to our political system. This is a disaster for our nation. It alienates voters, enables a coterie of highly-self-interested millionaires and corporations to distort our national political discourse, and causes elected officials desperately to curry favor with wealthy supporters, often at the expense of the public interest.

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The Harm in Free Speech

by Stanley Fish

New York Times
June 4, 2012

Jeremy Waldron’s new book, The Harm in Hate Speech, might well be called “The Harm in Free Speech”; for Waldron, a professor of law and political theory at New York University and Oxford, argues that the expansive First Amendment we now possess allows the flourishing of harms a well-ordered society ought not permit.

Waldron is especially concerned with the harm done by hate speech to the dignity of those who are its object. He is careful to distinguish “dignity harms” from the hurt feelings one might experience in the face of speech that offends. Offense can be given by almost any speech act — in particular circumstances one might offend by saying “hello” — and Waldron agrees with those who say that regulating offensive speech is a bad and unworkable idea.

But harms to dignity, he contends, involve more than the giving of offense. They involve undermining a public good, which he identifies as the “implicit assurance” extended to every citizen that while his beliefs and allegiance may be criticized and rejected by some of his fellow citizens, he will nevertheless be viewed, even by his polemical opponents, as someone who has an equal right to membership in the society. It is the assurance — not given explicitly at the beginning of each day but built into the community’s mode of self-presentation — that he belongs, that he is the undoubted bearer of a dignity he doesn’t have to struggle for.

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Δικαιοσύνη, Κράτος Δικαίου, Δημοκρατία, Φιλελευθερισμός, Ελευθερία της Έκφρασης

radiobubble.gr
retrospectiva / episode 73
2 Ιουνίου 2012

Mια συζήτηση του Βασίλη Σωτηρόπουλου με τον καθηγητή φιλοσοφίας δικαίου κ. Αριστείδη Χατζή.

Εξακολουθεί να υπάρχει απόσταση ανάμεσα στην ουσιαστική δικαιοσύνη και το θετό δίκαιο; Νομιμοποιείται η πλειοψηφία να αποφασίζει για τα πάντα σε μια δημοκρατία; Η ενσωμάτωση του φιλελευθερισμού στο ισχύον δίκαιο αφήνει περαιτέρω χώρο για περαιτέρω φιλελεύθερη πολιτική διεκδίκηση; Η άμεση δημοκρατία είναι συμβατή με το κράτος δικαίου; Είναι θεμιτό να είναι υποψήφιοι βουλευτές άτομα που έχουν καταδικαστεί για ποινικά αδικήματα; Νοείται η δημοκρατία να αποκλείει από τις εκλογές πολιτικά κόμματα; Είναι αποτελεσματική η ποινικοποίηση των ρατσιστικών απόψεων;

Μαζί με τον Χρήστο Γραμματίδη θέτουμε αυτά και άλλα ερωτήματα και συζητάμε τις πιθανές απαντήσεις με τον Aριστείδη Χατζή.



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Judges Should Write Their Own Opinions

by William Domnarski

New York Times
May 31, 2012

There is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.

With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure.

There are, of course, understandable reasons for this arrangement. For one thing, it’s efficient: it helps judges manage the ever increasing flow of cases to be decided. It’s also familiar: it resembles the modern law-firm model (known to many judges from earlier stages in their careers) in which associates draft documents and senior partners edit them. Furthermore, the law is not a literary pursuit but a system of rules, principles and arguments: in a legal opinion the fine points of language can seem less important than the underlying logic of the decision.

But in truth, much of importance is lost when judges outsource the writing of their opinions to their less experienced assistants. Judge-written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions.

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Our Imbecilic Constitution

by Sanford Levinson

New York Times
May 28, 2012

Advocating the adoption of the new Constitution drafted in Philadelphia, the authors of The Federalist Papers mocked the “imbecility” of the weak central government created by the Articles of Confederation.

Nearly 225 years later, critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.

Ignore, for discussion’s sake, the clauses that helped to entrench chattel slavery until it was eliminated by a brutal Civil War. Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.

Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

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An ever-deeper democratic deficit

Economist
May 26, 2012

For the past six decades, steps forward to greater European union have taken place at moments of incipient crisis. None, though, has been taken in a time of disaster. The next leap in integration looks set to change that. All the plausible solutions to the self-inflicted mess of the euro crisis require a significant new level of fiscal and potentially political union, not least because some countries, such as Germany, actively want greater political union and see it as the price of their co-operation. In order to make any such solution work, Europe’s elites will have to address a problem they have long shirked: that of the democratic deficit at the heart of integration. And they will have to do so under the worst of conditions.

The past week’s near-continuous high-level summitry has done little to reduce the risk of a Greek exit from the euro, which rose to higher levels than ever after the inconclusive results of the country’s election on May 6th. The risk shows no signs of receding before the next vote, on June 17th. After that, risk may become reality (see article).

A consensus is slowly emerging that, whether a Greek exit is to be averted or weathered, there will have to be a greater level of integration in the euro zone, with tighter constraints on the freedom of national governments. Some countries, under some conditions, may put up with seeing their governments so constrained for a while: Italy and Greece (until recently) have had unelected, technocratic prime ministers, in large part as a result of pressure from outside creditors. But elsewhere, and in the long run, people seem likely to want to do the constraining they think proper by means of the ballot box, rather than having it forced upon them.

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Οι «δημοκρατικοί» αντίπαλοι της Δημοκρατίας

του Πάσχου Μανδραβέλη

Καθημερινή
13 Μαΐου 2012

Η Δημοκρατία δεν ευλογεί την παραβίαση των κανόνων συμβίωσης, απλώς επιτρέπει σε όλους να συμμετάσχουν στον ορισμό αυτών των κανόνων.

«Σε μια δημοκρατία», έγραψε ο Αμερικανός δικαστής Φίλιξ Φρανκφούρτερ, «το υψηλότερο αξίωμα είναι αυτό του πολίτη». Αυτό είναι μια άλλη ανάγνωση του πρώτου άρθρου στα συντάγματα όλων των χωρών, που περίπου λένε ό,τι και το ελληνικό: «Θεμέλιο του πολιτεύματος είναι η λαϊκή κυριαρχία. Ολες οι εξουσίες πηγάζουν από τον λαό...». Αυτό δεν σημαίνει ότι κάθε πολίτης από μόνος, κατέχοντας το υψηλότερο αξίωμα, μπορεί να κάνει ό,τι γουστάρει, αλλά οι περισσότεροι πολίτες μαζί ορίζουν την τύχη μιας χώρας· είτε προς το καλύτερο είτε προς το χειρότερο.

Την περασμένη Κυριακή, οι Ελληνες άσκησαν την ύψιστη εξουσία τους και ίσως πρέπει να ξεκαθαρίσουμε μερικά πράγματα. Και αυτό, διότι όπως συμβαίνει και με όλα τα άλλα πράγματα, στην Ελλάδα και η έννοια της δημοκρατίας έχει κακοποιηθεί τόσο πολύ ώστε τα πάντα κατέληξαν πολτός. Τα πολιτικά δικαιώματα συγχέονται με τα ατομικά· ο νόμος της πλειοψηφίας με το «δίκιο» μιας τάξης· η υποχρέωση τήρησης των νόμων με το δικαίωμα (υπό όρους) της πολιτικής ανυπακοής· η δημοκρατία με την οχλοκρατία· η πολιτική με τον χουλιγκανισμό· το δικαίωμα της ελευθερίας του λόγου με τις βιαιότητες· το δικαίωμα της συνάθροισης με τις καταλήψεις· η νόμιμη βία, που οφείλει να ασκεί τηρώντας τους κανόνες το κράτος, με την παράνομη βία εκείνου που θεωρεί ότι αδικείται.

Το αποτέλεσμα αυτής της ιδεολογικής θολούρας αποτυπώνεται στην καθημερινότητά μας και στην κατάσταση που βρίσκεται η χώρα σήμερα. Υμνώντας τη δημοκρατία, φτάσαμε στην τυραννία των μειοψηφιών, που αποτρέπουν βιαίως την εφαρμογή των νόμων, στο όνομα ενός «ανώτερου» και αυτοπροσδιοριζόμενου «δίκιου» το οποίο ορίζεται ανάλογα με τα γούστα ή τις ιδεοληψίες καθενός κι αδιαφορώντας για τις προτεραιότητες των άλλων.

Ομως, η δημοκρατία δεν είναι ένα σύστημα απόλυτης ελευθερίας· είναι το πιο ελεύθερο σύστημα που έχουμε γνωρίσει μέχρι τώρα. Δεν ευλογεί την παραβίαση των κανόνων συμβίωσης, απλώς επιτρέπει σε όλους να συμμετάσχουν στον ορισμό αυτών των κανόνων. Δεν είναι ένα σύστημα που επιτρέπει στις μειοψηφίες να κάνουν ό,τι θέλουν· είναι ένα σύστημα που επιτρέπει στις μειοψηφίες να λένε ό,τι θέλουν, έτσι ώστε να πείσουν και να γίνουν με τη σειρά τους κάποια στιγμή πλειοψηφία για να ορίσουν τους κανόνες. Δεν επιτρέπει καν στην πλειοψηφία να κάνει ό,τι θέλει. Υπάρχουν τα θεμελιώδη δικαιώματα κάθε ατόμου, που δεν μπορεί να καταπατήσει ούτε το 99,9% του υπόλοιπου λαού.

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Does the Law Matter in China?

by Nicholas Bequelin

New York Times
May 13, 2012

Does the law matter in China? A cursory look at the two crises that have hit the Chinese government in recent weeks — one at the very top, with the purge of Bo Xilai, and one at the grassroots, with the escape from unlawful house arrest of the blind activist Chen Guangcheng — suggests not.

The two cases have in common an overt and blatant disregard for legality, an unwillingness of the central government to correct manifest injustices, and the notion that only U.S. diplomatic compounds are safe-havens in China.

Bo, the maverick princeling, turned a brutal anti-mafia campaign in the southwestern metropolis of Chongqing into an instrument of personal power designed to garner popularity through swift “justice” and to eliminate political rivals. His suspension by the Party’s Central Committee came only after his police chief took refuge in the United States Consulate.

Chen, the dauntless rural activist from Shandong province, had attempted to use the existing legal system to expose wide-ranging abuses of power by local officials, only to be sentenced in 2006 to more than four years in prison on trumped-up charges by a local court. Upon his release in September 2010, local officials and hired thugs unlawfully kept him confined in his home. He too, after dramatically escaping his captors, sought refuge in a U.S. diplomatic enclave.

Both cases are widely seen as emblematic. Bo’s embodies the corruption of an unchecked political elite: Communist Party members are investigated by the party’s own disciplinary committee, and not by the courts. Chen’s case is rife with the predatory behavior of local officials whose conduct is more reminiscent of China’s feudal past than of the “new socialist countryside” Beijing leaders claim to be building.

Yet it would be a mistake to conclude that the law doesn't matter in China.

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Unleash the Judges: The libertarian case for judicial activism

by Damon W. Root

Reason
July 2005

Speaking to the Heritage Foundation in 1996 on the topic of "judicial activism," the conservative commentator Pat Buchanan denounced the Supreme Court as a "judicial dictatorship"; the Court's beneficiaries, he said, were "criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that "the Supreme Court has usurped the powers of the people and their elected representatives." Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

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The constitutional right to be left alone

by George F. Will

Washington Post
April 19, 2012

Judge J. Harvie Wilkinson III, a Reagan appointee to the U.S. Court of Appeals for the 4th Circuit, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

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