March 25, 2010
Shesol's Supreme Power
Jeff Shesol, author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, just published Supreme Power: Franklin Roosevelt vs. the Supreme Court.
Shesol, a Clinton speechwriter, tells the story of FDR's court-packing plan "with a novelist's eye, a historian's care, and a blogger's energy" (quoting Jeffrey Toobin's dust-cover advance praise).
February 26, 2010
Gormley on Starr and Clinton
The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations." Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond." Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.
The political relevance of Gormley's book is obvious. But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.
February 26, 2010 in Books, Cases and Case Materials, Executive Privilege, History, Profiles in Con Law Teaching, Scholarship, Separation of Powers, Teaching Tips | Permalink | Comments (0) | TrackBack
January 26, 2010
Justice Bertha Wilson
Bertha Wilson was the first woman appointed to the Supreme Court of Canada, sworn in on March 30, 1982, less than three weeks before the Charter of Rights and Freedoms became a centerpiece of Canadian Constitutional law. Wilson's career on the Court before she retired in 1991 would engage with many constitutional controversies in Canada.
Justice Bertha Wilson: One Woman's Difference is an important new anthology, edited by Professor Kim Brooks of the Faculty of Law at McGill University. Brooks' introduction to the volume is available on ssrn. The collection provides perspectives on Bertha Wilson's judicial career and explicit interrogations of the relevance of gender to the judiciary.
For Americans - - - the third woman on our United States Supreme Court having been appointed last summer - - - the Canadian experience provides a much richer data base for making arguments about gender on the Supreme Court. While Justice Bertha Wilson was appointed six months later than SCOTUS' first woman justice, Sandra Day O'Connor, the Supreme Court of Canada quickly surpassed SCOTUS in the number of women justices: Madame Justice Claire L'Heuerux-Dube was appointed in 1987, with woman justices appointed in 1989, 1999, 2002, and two in 2004. The Chief Justice of the Supreme Court of Canada is now the Madame Chief Justice Beverly McLachlin and four of the nine justices are women. The ratio on Australia's High Court is similar.
January 15, 2010
Constitutional Law Professors as Difficult to "Nail" with "Witticisms": John Yoo and Jon Stewart
The consensus seems to be that John Yoo bested Jon Stewart in Yoo's appearance on The Daily Show; even Stewart seemed to think so. As Christopher Beam says on Slate today, although Stewart may have apologized for not "nailing" Yoo: "Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power."
Beam contrasts the style of constitutional law professors (and lawyers) with comedians. Beam implicitly reveals the problem with assuming that Jon Stewart's The Daily Show - - - which is on the Comedy Central Network - - - is a substitute for serious news and commentary. Beam implies that Stewart's stock in trade is "damning witticisms." He states: "Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down."
Make your own judgment about the interview:
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|John Yoo Pt. 1|
Yoo was on the show to promote his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush which he also did at a Federalist Society Luncheon today.
January 03, 2010
Rosen on Biskupic on Scalia
Rosen calls Biskupic's book "impressively balanced and well reported," which shouldn't be surprising to anyone who has read Biskupic's previous biography of Sandra Day O'Connor.
By letting Scalia describe himself in his own words, Biskupic offers a profile of a man who, at the age of 73, sometimes appears smug and self-satisfied — adjectives he has used to describe critics of using torture in the war on terror — but not especially self-aware. Scalia thinks of himself as a pleasant fellow, and Biskupic reports that he was dumbfounded when Jon Stewart, in response to a Daily Show guest who suggested that John Roberts was nicer than Scalia, replied, “Aren’t we all nicer than Scalia?”
The review is worth a read, and is persuasive that the book will likewise be worth a read.
December 12, 2009
Abigail Adams Biography: (Winter) Break Reading?
It is exam season for those of us in academia, whether we are in the northern hemisphere or southern.
A motivational carrot for me is listing books I'll read when the grading is finished. So, this review from NYT makes the new biography of Abigail Adams sound especially tempting; it begins:
Best known for reminding her husband, John, and his fellow revolutionaries in 1776 to “remember the ladies,” Abigail Adams made a far more rebellious statement 40 years later. At age 71, she wrote her will, ignoring the fact that the document had no legal standing whatsoever. Since husbands at that time controlled family property, she technically had nothing to bequeath.
I'll be reading it to think about Abigail's status as one of the "framers" and possible originalist arguments.
November 24, 2009
Holiday Travel?: Time to Catch Up on Some Constitutional "Listening"
When was the last time you listened to a reading of The United States Constitution?
If you can't recall, and you are one of the 38.4 million people traveling by car in the US over the Thanksgiving holiday, perhaps your trip might be the perfect time to hear the Constitution read aloud.
Or if not the Constitution, what about the Articles of Confederation? Or the Declaration of Independence?
If your travel-time is extended, you might be interested in the 21 hours of The Federalist Papers - - - or the 19 hours of The Anti-Federalist Papers. Or perhaps A Treatise of Human Nature by David Hume (almost 14 hours) or John Locke’s Two Treatises on Civil Government (11 hours).
What about Aristotle’s Politics? Plato’s Republic? Alexis de Tocqueville's Democracy in America (both volumes)? Or Discourse on the Origin and Basis of Inequality Among Men, by Jean-Jacques Rousseau, available in both English and French?
All of these and more are available for free download on LibriVox. With its motto of "acoustical liberation of books in the public domain," the site provides a wide range of materials. Browsing is possible, but somewhat cumbersome. If you cannot find your favorite classic, LibriVox accepts volunteer readers.
November 13, 2009
Taking Private Property for Private Abandonment?: An Update on Kelo
The "takings clause" of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation.” Much of the constitutional controversy has revolved around "taking," especially when the "taking" is through regulation rather than physical appropriation.
However, with Kelo v. City of New London, 545 U.S. 469 (2005), the issue of "public use" assumed prominence. In Kelo, the Court acknowledged the two poles of "public use": the clearly constitutional situation when the government takes private property and will itself use that property (e.g., for a road) as opposed to the clearly unconstitutional scenario if a government were to take private property and then transfer that private property to a private entity for private use. Relying on precedent relating to railroads, a majority of the Court held that the City of New London's taking of property in this "blighted" area and transferring it to companies including Pfizer that would develop the property amounted to a public use.
One way to portray the Kelo controversy is as a pitting of "little" individual property owners against "big" government and corporate interests. The Little Pink House, a book published this year, is true to this narrative, providing a compelling account of Susette Kelo, the case, and its aftermath. For a more nuanced view, there is an excellent and critical review of the book by Professor George Lefcoe who teaches property at USC, available on ssrn here, and forthcoming in Connecticut Law Review.
The newest development in the factual landscape might be called a "non-development." As reported by the New York Times, Pfizer is leaving the development in New London, Connecticut and taking 1400 jobs. The report (with audio) on Democracy Now notes that Souter (who was in the majority in Kelo) has been replaced by Sotomayor, but that change would probably have less impact on any future "public use" case than the "feedback" to the Court's opinion. As Dana Berliner, who represented the homeowners in Kelo expressed it on Democracy Now:
I don’t think there was anything in the [Sotomayor confirmation] hearings that would tell us that [she would rule differently]. I’m hoping, though, that what has happened since will have an effect on the court. The court’s decision basically said, “If the city’s got a plan, then we’ll just trust that they know what they’re doing. We won’t look at it.” And it was evident, even at the time, that this project was going to fail. And we showed that, and the court said they didn’t want to hear about it. I’m hoping that now, the next time they look at it, they’ll realize cities don’t know what they’re doing. They don’t know how to engage in risky real estate deals. And this is not the kind of thing that we should be using, eminent domain, in order to allow private companies to make a greater profit.
(with thanks to a number of CUNY School of Law students from previous Constitutional Law classes who forwarded various articles this week).
October 17, 2009
Plessy, Brown, Barbara Ehrenreich & "Positive Thinking": Robson's Saturday Evening Review
Be positive! How many times have you heard that recently? How many times have you said that? Or if you haven't heard it or said it explicitly, how many times has that been the implicit message?
In formal meetings and informal ones, in classrooms and offices, in conversations with colleagues, students, and clients, inside academia and outside it, the significance of being - - - or at least acting - - - happy, positive, and "upbeat" has become de rigueur. And what could be wrong with that?
A few answers are provided by Barbara Ehrenreich's new book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America. It is a journalist's book aimed at a popular audience, yet this seems right because it is criticizing a movement so ubiquitous that it is rarely named a "movement." But a movement it is, she argues, tracing its genesis to the "New Thought" movement in post-Calvinist America, around the time of the Civil War. In the 1860s, Mary Baker Eddy, the founder of Christian Science, met Phineas Parker Quimby, a metaphysician, watchmaker, journal-keeper, and inventor in Portland, Maine, and so "the cultural phenomenon we now recognize as positive thinking" was launched. (79). From here, it is only a short distance to William James' pragmatism, Napolean Hill's 1930's classic Think and Grow Rich, and of course Norman Vincent Peale's 1952 mainstay, The Power of Positive Thinking. Ehrenreich partially explains the contemporary popularity of "positive thinking" in part by changes in work and life: much more depended on being "likeable to employers, clients, coworkers, and potential customers," (96) and not only that, one's very life and health might depend upon it.
Ehrenreich looks at several specific contemporary manifestations: cancer care and advice, the partnership between corporate and motivational industries, the mega-churches ("God wants you to be rich!"), and psychologists purveying "scientific" studies of happiness. Most predictably perhaps, she considers the present economic turmoil. Ehrenreich doesn't think the culprit was simply greed, but an all pervasive sentiment that confused positive thinking with reality. Thus, not only were people, whether they be borrowers or lenders, encouraged to think that things could only get better and that they individually deserved the new purse/house/car that they had visualized, but that anyone who dared proffer another idea should be dismissed as "negative" or even "toxic." Being "negative" could mean not only that one was not in demand as a conversationalist or dinner companion, but that one was terminated from her or his job.
Academia earns only a brief mention (141); she concludes that universities have been "corporatized" with their MBA Administrators, bland architecture, aggressive marketing techniques, and hiring of "motivational speakers. Not to mention, although she does, the "jargon" that one hears in universities and "everywhere": "incentivizing," "value added," and "going forward." (She omits my favorite, "reaching out," often referring to speaking to a colleague next door or a student one would see in class, as if that person is very far away).
Law does not figure in Ehrenreich's book (with the exception of the "law of attraction": visualize what you want and it will be attracted to you). Reading it, however, did bring to mind both Plessy v. Ferguson, 163 US 537 (1896), and Brown v. Board of Education, 347 US 483 (1954). In Plessy, Justice Henry Billings Brown famously wrote:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
I've always considered this a premature postmodernist stance, but it also fits into the "New Thought" currents Ehrenreich discusses. If Homer Plessy had only been more of a positive thinker about that Louisiana statute mandating separation of the races!
Fifty-eight years later, Justice Earl Warren in Brown v. Board of Education concludes that racial segregation has a "detrimental effect" :
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
The modern authority Brown cites in the footnote includes
the famous Clark "doll studies." But in the power of positive thinking world that Ehrenreich
describes, low self-esteem - - - what would be named "negativity" now - - - is in
the control of the individual and is not attributable to legal or social
conditions. Instead of suing to end segregated schools, should the plaintiffs (and attorneys) in Brown have looked "within" and tried to be more "positive" about the "situation"?
Ehrenreich's all-important point - - - which I think might be too easily lost in the book - - - is that what's wrong with the insistence on a positive world view is that it reinforces the status quo. If, as the positive psychologist studies contend, "circumstances" only play a small role in individual happiness, then, as she writes "policy is a marginal exercise." (171).
Why advocate for better jobs and schools, safer neighborhoods, universal health insurance, or any other liberal desideratum if these measures will do little to make people happy? Social reformers, political activists, and change-oriented individuals can all take a much-needed rest. . . . the baton has been passed to the practitioners of "optimism training" . . . .
So, the next time you hear - - - or say - - - something about someone's positive or negative attitude, think of Plessy v. Ferguson and Brown v. Board of Education. And take a look at Ehrenreich's new book.
October 01, 2009
The Nineteenth Amendment
The Nineteenth Amendment to the United States Constitution, ratified in 1920, provided for women's suffrage:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
For those interested in the grammatical structure of the Amendment, should that ever be necessary to interpret it, the following diagram (from "Diagramming Sentences" with thanks to Feminist Law Professors) might be useful:
I was thinking that "Diagramming Sentences" should have included the Fourteenth Amendment rather than the Nineteenth, because, after all, the Nineteenth Amendment is hardly controversial. But then I saw mention (and audio) of an interview with John Derbyshire, author of the new book, We Are Doomed: Reclaiming Conservative Pessimism. Derbyshire apparently made statements in the interview that we'd be a "better country" if women didn't vote and that "we" got along for 140 years without women voting and women lean too hard to the left: “They want someone to nurture, they want someone to help raise their kids, and if men aren’t inclined to do it — and in the present days, they’re not much — then they’d like the state to do it for them.”
The advertising material for We are Doomed has a blurb from Robert Bork, as well as a description of the book as a "scathing, mordantly funny romp," so I suppose one shouldn't take this too seriously. But perhaps I'll keep the grammatical diagram of handy, just in case the issue of the Nineteenth Amendment's interpretation arises.
September 27, 2009
Books of Note: Brandeis Biographynew biography of Justice Louis Brandeis by Melvin I. Urofsky is excerpted in the NYT today here. There are also several reviews: The Boston Globe Review is here; Adam Liptak's review for the daily NYT is here; Alan Dershowitz's glowing review in the Sunday NYT Book Review here. Dershowitz describes Brandeis with a contemporary flair:
Today, Brandeis is seen by liberals as their patron saint because of his views on speech, privacy, liberty and social welfare, yet conservatives claim him as well, because of his commitment to judicial restraint. In many ways he defies labeling. He demonstrated through his judicial decisions that a living constitution, responsive to changing needs, is not incompatible with a modest view of the role of judges. He rejected judicial activism in favor of allowing legislatures — the voice of the people — to expand rights and extend protections to the most vulnerable. He said of the Supreme Court that “the most important thing we do is not doing.”
This was, of course, easier to say in his day, when legislatures, for the most part, were more progressive than courts.
At more than 950 pages, the biography promises to be comprehensive. In the excerpt, Urofsky notes that Brandeis was not an introspective man, making the biographer's efforts at portraying Brandeis' inner life rather difficult. But given Brandeis' active and multiple careers, there is certainly much to interest readers.
September 12, 2009
The Death of Conservatism? Robson's Saturday Evening Review
According to Sam Tanenhaus, in his new book The Death of Conservatism,
David Souter, who in his nineteen years on the Supreme Court infuriated so many on the right by his refusal to advance the movement's pet judicial causes - - - instead immersing himself in the study of history, partly to uncover in the past "some relevance to a constitutional rule where earlier judges saw none" - - - may well endure as the most authentic conservative in the Court's modern history.
(at 117). Tanenhaus (pictured at right), the editor of both the NYT Book Review and NYT Week in Review, not only argues that Justice Souter is best understood as a conservative but that the present politics and culture of the US are best described as being in a conservative phase. This might make it seem that conservatism is very much alive, but Tanenhaus argues that conservatism as a politics has succumbed to conservatism as a "movement." Tanenhaus contends that postwar conservatism has been a debate between the "realists" (who uphold the 18th Century ideals of Edmund Burke of "replenishing civil society by adjusting to changing conditions") and the "revanchists" (committed to a counterrevolution) - - - and that "at almost every critical juncture, the revanchists have won the argument." (at 20).
I picked this book up because of an acquaintance with Tanenhaus at the CUNY Writer's Institute. I recommend it because it provides a highly readable account of recent political and legal history, with a nice balance of details and broad brush strokes. Some of the material will be familiar to constitutional law professors, such as President Reagan's legislative agenda. Other material might be less so, especially if one is a bit rusty on the work of William F. Buckley or Whittaker Chambers. But the reason to read this book is not for its facts, but its insights. While Tanenhaus has been labeled a "neocon," the message of this book is relentlessly moderate:
Since its founding, our nation has been productively divided between liberal and conservative impulses. They form the dialectic of our infinitely renewable politics.
(at 114). Whether this dialectic has actually occurred or has been "productive" remains, to my mind, very debatable. Nevertheless such a claim is not dissimilar to many constitutional history theories of adjustment, feedback, or even backlash. Thus, while not a book devoted to constitutional law, this brief book (120 pages and no footnotes) can provide insights that might be fruitful for one's own scholarship and teaching.
August 08, 2009
Secret Lives of SCOTUS Justices?: Saturday Evening Review
Not yet updated to reflect the newest SCOTUS Justice, Secret Lives of the Supreme Court, published in 2009 and subtitled "What Your Teachers Never Told You About America's Legendary Justices," is a bit too scattered for engrossing beach/cabin/summer reading, but suitable for forays while waiting for a ferry or an airplane - - - and anticipating the start of the academic year.
There are moments of judicial interpretation in Secret Lives, none of which would be startling to a conlaw prof or good student, and passages of political intrigue, most of which are familiar. Yet I'll admit I somehow missed Chief Justice Burger's views on the Second Amendment, voiced in a 1991 interview: he believed the Second Amendment was a "fraud, I repeat the word fraud, on the American public" and despite his supposed law and order orientation, advocated for strict gun control laws (p. 174). However, such insights are obviously not the point of a book entitled Secret Lives. As advertised, the largest share of the book concerns the more personal predilections of the justices.
The historical material does put some of our present notions into perspective. A Justice who probably suffered from Alzheimers? A Justice who flubbed the administration of the Presidential oath? A Justice who was rumored to be gay? A Justice believed to be the "most devout Catholic" ever to sit on the Court? According to this book, the answers are not (only?) members of the Rehnquist or Roberts Courts.
For those interested in more contemporary matters, it might be worthwhile to know that Rehnquist's name translates to "reindeer twig" in Swedish and that Roberts seems to have disliked recently deceased pop-icon Michael Jackson. And if you want to know Scalia's favorite pizzeria, Kennedy's favorite Shakespeare play, Ginsburg's favorite mystery authors, and Breyer's favorite "old-time radio program" as well as Stevens' daily lunch and Thomas' cars and vanity license plate, then this is certainly a book worth a look.
In the next edition, one presumes there will be unexpected revelations about Sotomayor. Perhaps we will finally learn her favorite ice cream flavor; a detail the confirmation hearings seemed to have neglected.
July 19, 2009
JUDICIAL VALUES: SHOULD JUDGES JUST APPLY THE LAW - OR SHOULD THEY BRING THEIR OWN VALUES TO THE TASK?: Forum
The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one. Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.
Schlink, of course, is the author of the bestselling novel The Reader, which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime. The book was made into a popular movie in 2008.
Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany.
The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report." The publicity frames the discussion this way:
Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.
July 19, 2009 in Books, Comparative Constitutionalism, Conferences, Current Affairs, History, International, Interpretation, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack
June 29, 2009
Kennedy remained the "swing" vote in the 2008-2009 Term
Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today. According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority 92.4% of the time in 79 opinions, and perhaps more importantly, 88.7% of the time in the 53 opinions in divided cases in which there was at least one dissenting vote. According to ScotusBlog this is an even higher number than Kennedy's "stats" from last Term - 85.5% and 79.2% respectively.
(Just for fun, consider jotting down your own ranking of the Justices before you look at the Scotusblog stats for "frequency in the majority: Second after Kennedy? Last at 47.2%?).
This doesn't mean that Kennedy authored the most opinions. Indeed, according to the ScotusBlog "Final Stats," Kennedy ranks last in "Opinion Authorship" at 14 Opinions.
Given these statistics, it might be a good time to turn to a new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, by Helen J. Knowles.
An informative review of the book is available in Law & Politics Book Review here. The reviewer, Tobias Gibson, writes:
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut.” Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Gibson and Knowles are both political scientists and Gibson recommends the book highly. However, Gibson provides a good outline of the chapters (as is typical in a short review) so that readers who are law professors have information to decide whether or not the book would add to their own insights.
June 15, 2009
Relevance of the United States Supreme Court: limited to nip and tuck?
How important is the United States Supreme Court?
Democracy: A Journal of Ideas has an interesting review
This does not mean the Supreme Court is irrelevant. It will continue to matter on social issues such as abortion, sexual privacy, and equality issues related to sexual orientation. Its opinions in these matters will be of great consequence to millions of people.
This seems a bit contradictory. And perhaps their argument regarding the Court's ruling in Heller that there is an individual right to bear arms under the Second Amendment may be a bit premature:
But this is a thoughtful review, especially given its brevity, of three books that merit reading this summer:
Lincoln and the Court
by Brian McGinty
Harvard University Press • 2008 • 384 pages • $18.95 (Paperback)
FDR v. the Constitution
by Burt Solomon
Walker & Company • 2009 • 352 pages • $27
The Supreme Court and the American Elite
by Lucas A. Powe, Jr.
Harvard University Press • 2009 • 432 pages • $29.95
June 05, 2009
Judge Richard Arnold Biography
Price describes her book's subject thusly: "As a college student in the 1950s, Arnold had deep misgivings about Brown v. Board of Education as a constitutional matter. Yet he would later preside over the Little Rock school desegregation cases with a firm commitment to federal protection of civil rights and institutional reform. In this book I examine desegregation and other pressing federal court issues in the closing decades of the twentieth century, including the death penalty, abortion, free speech, and voting rights."
May 30, 2009
Dignity, Freedom and South African Constitutional Justice Ackerman: Robson's Saturday Evening Review
ys in this collection provide insights into the relationships between dignity and freedom as constitutional principles, not only in the "new South Africa," but also for those interested in American constitutional law and its foundations and theories.
Several essays might be of special interest to American ConLaw Profs:
Freedom By Any Other Name? A Comparative Note on Losing Battles While Winning Wars, by Frank Michelman of Harvard Law School compares the South African constitutional concern with the principle of freedom to "residual liberty" constitutional issues in the United States known - in its most "congenial" phrasing according to Michelman - as substantive due process.
Toward a Relational Constitutionalism by Peggy Cooper Davis of NYU Law discusses the well-known view that the South African Constitution is reactive to Apartheid, but then disputes the well-known comparison that the United States Constitution is not "reactive." Cooper argues that the Reconstruction Amendments were reactive and that the US Constitution could (and should) be viewed through their transformative character.
Both Michelman and Davis discuss the South African Constitutional Court's sexuality decisions - a matter on which the South African Constitutional Court has been at the forefront. These decisions and their theoretical underpinings are the centerpieces of the excellent contributions by Pierre de Vos and AJ Barnard-Naude. Socio-economic rights is another area in which the South African Constitutional Court is seen as progressive and the essay by Sandra Liebenberg compellingly connects "freedom" to issues of what Americans think of as "equality."
Drucilla Cornell, an American law professor now holding a chair at University of Cape Town, offers the best introduction to the work of former Justice Laurie Ackerman, including Ackerman's reliance on Kant in his judgments and the importance of dignity as well as uBuntu. As she does so, she illuminates issues far beyond a single justice or a single nation. Her piece alone is worth the price of the book.
The book will be launched June 4 at the Book Lounge in Cape Town. Unfortunately, my visit to the University of Cape Town has ended, but if you are in the neighborhood, it promises to be an event worth attending.
April 28, 2009
Equal - Fred Strebeigh's History of Women and Law
Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course. The book has been getting some good press, but this analysis from Michael O'Donnell's review in the April 27 issue of The Nation gives one pause:
Notably absent from the book is any significant discussion of abortion
rights, which in this country have largely been won in courts rather
than legislatures. Some readers, viewing reproductive freedom as the
most fundamental of women's rights, may see the omission as a major
oversight, although Strebeigh may simply have wanted to avoid retelling
a familiar story. On the conceptual level, though, Strebeigh's decision
makes sense: much of the constitutional discussion in the book centers
around the Fourteenth Amendment's straightforward equal protection
clause, whereas abortion rights are based on the murkier and more
malleable due process clause--which, on its face, says nothing about
abortion. Many important legal advances, including abortion rights but
also, lately, protections for gays and lesbians, would wobble less today
if they rested on the sturdier foundation of equal protection, with its
relatively clear textual guarantee. Leaving aside abortion law allows
Strebeigh to avoid having to untangle legally (as opposed to
politically) knotty problems.
Certainly, whether or not the equal protection clause is "straightforward" is debatable. Also debatable is the question whether equality or the reshaping of American law should be discussed in a book without some attention to abortion or other reproductive rights.
April 25, 2009
Australian Constitutional Law: Saturday Evening Review
There are many terrific articles and books on Australian Constitutional Law. Yet as I prepared for the public conversation with Justice Michael Kirby, recently retired from Australia's High Court, I found two invaluable sources that are worth reading - and rereading.
The first work is Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L. Pierce, an American political science professor specializing in constitutional law. Published in 2006, I read the book when it first appeared, but the book remains timely because the problems of judicial roles, constitutional decision-making, and so-called judicial "activism" have not been resolved. Pierce's methodology includes extensive interviews with judges and others in the legal elite (which in Australia generally means a person bearing the title QC - Queen's Counsel - after his [and very occasionally her] name). The second chapter has a very useful overview of the Australian legal system - - - I would recommend it to any legal scholar working on Australian law.
Moreover, while focusing very specifically on Australia and discussing particular decisions and particular jurists, much of what Pierce theorizes has relevance in the United States context. Apart from the introductory chapter, Pierce is not writing a comparative constitutional law volume. Yet perhaps because of his American training, Pierce's discussion have resonance. Thus, I think it is a good book for legal scholars working on judicial politics in the US context as a way of testing one's theorizing in a less familiar doctrinal landscape.
The second is the work of Australian law professor Reg Graycar, previously discussed here. I found her newest piece appearing on ssrn here, co-authored with Professor Jenny Jane Morgan. As the abstract announces:
In 2009, Australia is debating whether to have a national bill of
rights and remains one of the last western democracies that has not yet
legislated for (or indeed constitutionally entrenched) some form of
human rights law. Nor is there any guaranteed right to 'equality'.
Nonetheless, as feminist legal scholars, our work has been centrally
concerned with issues of equality. We argue that equality is deeply
implicated as a value in the Australian legal system, despite the
absence of some formal instrument or constitutional guarantee.
This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.
Graycar (pictured left) and Morgan (right), authors of the exceedingly popular and useful The Hidden Gender of Law, pose questions about constitutional structures, specifically the absence of a Bill of Rights or of an equality provision. It is an issue that is not unfamiliar to American constitutional scholars - - - especially those considering originalism or the Ninth Amendment - - - albeit in a different guise. Graycar and Morgan explore the notion that an absence of constitutional "rights" might actually work toward a greater realization of those rights in the hotly-contested debates surrounding sexual freedom issues such as same-sex relationships and abortion. And in comparison with US doctrine, their conclusions are certainly worth consideration.
As summer approaches - - - at least here in the northern hemisphere - - - and many constitutional law profs will be traveling and engaging in comparative constitutionalism, anyone going to Australia should certainly take a look at Inside the Mason Court Revolution, any work by Reg Graycar and Jenny Morgan, and the career and work of Justice Michael Kirby.