Tag Archives: Rule of Law

Rule of Law Requires Free Expression

Because had Citizens United come down for the alternative, the decision could have been summarized: First, they came for the corporations . . .

The First Amendment protects, in passive voice, the right to free expression.  This is a negative right, one retained by the people rather than traded to the community in exchange for governance/safety.

What if 1A hadn’t been written as a passive, negative protection?  If the Constitution had protected only individuals’ right to expression?  Well — then who counts as an “individual”?  Citizens?  Non-citizens?  Citizens as avatars, or as blogs, newspapers, etc.?

My esteemed — and handsome! — former colleague Reid Smith illustrates the case for broadly-protected speech using the infinitely-flawed Iraqi system as counterexample:

We might have known that come election time in Iraq, it’s rarely the voting that counts.

Controversy surrounding Iraqi Prime Minister Nouri al-Maliki’s attempt to prohibit political rivals from participating in March’s parliamentary election has threatened to splinter Iraq’s fragile democracy. Although the campaign for Iraq’s legislature does not formally begin until next week, 511 would-be candidates, both Shi’a and Sunni, with alleged ties to Saddam Hussein’s Ba’ath party found themselves unexpectedly stuck in political limbo.

The legal face-off pit the prime minister and a powerful Shi’a-led governance commission—one which replaced the original “De-Ba’athification” board established by the Coalition Provisional Authority—against a judicial appeals committee accused of acting under pressure from the United States.

How much pressure is too much?  And when does “campaigning” become “politicking”?

The stakes are high. Oil contacts, the status of U.S. forces, and the political representation of the Iraqi people hang in the balance of the March 7 elections. There have been rumblings that the Accountability and Justice Commission, helmed by several prominent Shi’a politicians, was designed to eliminate rivals and distract voters from the inability of the Maliki government to provide security, basic services and reduce unemployment. The commission’s interests are further blurred by its supervisor, Ahmed Chalabi, erstwhile ally of the Bush administration, who has since been suspected of Persian-politicking with Iran. Regardless, the uproar created by the commission’s judgment to haphazardly blacklist over five hundred aspirant MPs has threatened to drag the country back into the violent sectarian strife.

Last Wednesday, the seven-judge appellate committee that overturned this decision ruled that the banned candidates may participate in the election, although their cases would be revisited, and exhaustively reviewed, after voting. All those found to have legitimate ties to Saddam’s Ba’athist regime, or those found to be in breach of Iraqi election laws, would be permanently barred from participating in parliament. Since that time, of the 511 candidates originally targeted by the Accountability and Justice Commission, many were scratched by their parties, and some have seen their bans lifted. 177 cases remained in the appeals pipeline, but it was revealed Tuesday that only 37 of these petitions were filed correctly leaving the remaining 140 candidates ineligible for participation.

Although al-Maliki initially balked at the court’s decision to reinstate the candidates, and demanded a special session of parliament to uphold the black-listings, a meeting held between the prime minister and the head of the appeals body on Saturday apparently produced a satisfactory compromise. Not surprisingly, this impromptu arrangement may have drastically undercut constitutional law, as the standard appeals process was altered for appearance sake, shortly thereafter.

So it seems rule of law in Iraq still falls to: Say all you want; we’ll decide later whether to punish you for it.  Or, for the Iraqi constitution in peril: First they came for the ex post facto clause . . .


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Here in Youngstown

In the 1952  “Steel Seizure” case, nearly every  Supreme Court Justice  weighed in on the state of Executive power.  Unionized steel workers realized they had unprecedented leverage to bring the country to its knees and scheduled a strike in the middle of the Korean war.  President Truman realized the invasion could not continue without steel, so he quickly nationalized the steel mills to keep production running.

The Supreme Court smacked the President for his decision when Justice Black determined that the President cannot act outside of his “aggregate” Article II powers (“the executive Power shall be vested in a President”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief  of the Army and Navy of the United States”) absent explicit authority from either the Constitution or a Congressional grant of power.

Youngstown is a brilliant and beautiful case for a number of reasons, but at its core it’s a discussion on what the “separation of powers” means for our republic.  Perhaps the powers are better “shared” than “separated,” but two branches have declared in not-too-distant past that the President may do many things, but he should not be able to decide when and how to seize the factors of production.

Is it just me who’s getting major deja vu from this bill that would allow President Obama to take over the Internet during “Emergencies”?

Internet companies and civil liberties groups were alarmed this spring when a U.S. Senate bill proposed handing the White House the power to disconnect private-sector computers from the Internet.

They’re not much happier about a revised version that aides to Sen. Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNET News has obtained a copy of the 55-page draft of S.773 (excerpt), which still appears to permit the president to seize temporary control of private-sector networks during a so-called cybersecurity emergency.

The new version would allow the president to “declare a cybersecurity emergency” relating to “non-governmental” computer networks and do what’s necessary to respond to the threat. Other sections of the proposal include a federal certification program for “cybersecurity professionals,” and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license.

The scary part is the President’s ability to determine when the “Emergency” begins and ends.  Privacy issues abound, but the scariest part of this bill is that we’re putting the “decider” power and the rewards in the same hands.  If I get to decide when to suspend private property law and I get to take that property when I decide it’s appropriate, won’t I be more prone to find the sky is falling?

It’s not a partisan issue.  Yes, I prefer a president who comes down hard on terrorists who want to blow us up, NOT on people who “spread disinformation” about White House pet projects.  All that being said, we’re asking for a lot of major emergencies.  Not only has the WH decided to micromanage information spreading on the web; we’re looking at potential H1N1 hypertransmission (that elicited executive classification as “emergency” in April 2009), and we keep baiting the bullies of the Middle East in ways I wouldn’t bait a bully.

Do we really want to nationalize the mills?  1952 was the time for steel, but now we’re working with information.  Three Justices, including the Chief Justice, dissented in Youngstown — taking away this presidential privilege was obviously a controversial move.

Executive power is a slippery beast, and more so in times when “emergency” stays so close to the surface.  With a united, non-separated government with a complacent media that refuses to exercise its external spank, are we really ready to hand over the last key to the city?

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Ted Kennedy, Tolerance, and Truth

I’m culling from other sources (busy morning!) in re Ted Kennedy’s death.

A friend of mine posted the following quote, included in a TK obit but clipped from a Jerry Fallwell Moral Majority fundraiser in the 80’s:

I believe there surely is such a thing as truth, but who among us can claim a monopoly? There are those who do, and their own words testify to their intolerance.

Indeed.  If frustration over politicians’ ability to avoid prosecution for DUI manlslaughter is “intolerance” then I’m guility.

One of my favorite professors summed it up best, via Facebook:

Ted Kennedy was perhaps the country’s foremost symbol of the effects of wealth and privilege: On July 18 1969 he drives off a bridge one evening on Chappaquiddick island, in Martha’s Vineyard, Massachusetts. His lone passenger, a beautiful woman, 28-year-old Mary Jo Kopechne, drowns inside the closed car from which Kennedy has managed to escape. Kennedy leaves the scene and does not call the authorities until after Kopechne’s body is discovered the following day, after a 10-hour delay, after alcohol is no longer detectable. The judge in the inquest – held in camera – rules that Kennedy “was probably guilty of criminal conduct”, but made no move to indict him.

That this man could escape prosecution, and that he could go on to pursue a successful political career, says damning things about the Rule of Law in America.

I’d be curious to see a Venn diagram comparing those who forgot about Jesus Juice and those who forgot about Kopechne upon MJ’s and TK’s respective deaths.  Is it simply rose-colored glasses making hindsight more prone to canonization than perfection?  Or a short political memory because we love our American dynasties?

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Nontransparency, Not Severity, Defeats the Rule of Law

I sent this letter today:

In “Severity of Islamic Law Fuels Debate in Malaysia” (World, August 22, 2009), James Hookway notes that partly as a result of Malaysia’s “increasingly fractious politics,” a Malaysian Muslim woman will be caned under Islamic law for drinking a glass of beer in a hotel bar.  Kartika Sari Dewi Shukarno, the first person to be caned for this offense, asked that her punishment be performed in public to deter other Muslims from drinking.

Mr. Hookway reports that Malaysian law enforcement refused to comply with Ms. Kartika’s request.  In fact, amidst popular complaints over such “severe” and “degrading” punishment, the government decided to cane Ms. Kartika in private behind prison walls.

Though he correctly characterizes the political unrest in Kuala Lumpur, Mr. Hookway incorrectly focuses only on the severity of Malaysian law rather than on its lack of transparency.  Malaysia’s attempt to maintain an opaque legal system represents a self-defeating step away from peaceful public life.

Indeed, Ms. Kartika herself decided against appealing her sentence.  She hoped to use her punishment to inform the world about Malaysia’s unclear laws.  Rather than focus on the severity of Islamic law, Mr. Hookway could have done more for Ms. Kartika and for Malaysia by helping her to promote clear, transparent rule of law in a country whose political unrest might be mitigated by educating the public on their vague existing system.

Severity is not lethal to justice.  Nontransparency, however, necessarily devastates the rule of law.  An effective system of justice requires that the public remains aware of what consequences they can expect from their actions.  The lesson we should learn from Ms. Kartika’s punishment is not that Islamic law deals harsh punishment, but that Malaysia arbitrarily executes that punishment without keeping the public informed.

Kathryn Ciano

Arlington, VA

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Still Sonia from the block?

The media exploded today with news of Obama’s Supreme Court pick, Sonia Sotomayor of the Second Circuit. I won’t direct your likely-already-informed opinion on this pick. There are just two points to highlight:

1. We knew this would be a she-nominee, and I’m glad. A lot of conservatives claim that law is an entirely objective endeavor, but even every conservative has a different take on what exactly “objective” means. Above all our Constitution rests on the principle that societal factions can only coexist if they are allowed to hustle their strengths against on another.

I appreciate that even “women’s issues” cases before the Court are about applying the law and not about what it’s like to have a uterus. But countless experiments have proven that a woman’s life experience is different from a man’s. In psych class I read a study about a male-to-female sex change patient’s dramatic experience with just how extreme are the differences between how society treats men and women (I’d find a link for you but am having a hard time sifting through all the pop-ups resulting from googling “sex change”!). If we have such a different experience I want my faction represented and asking the right questions. It’s not like women are a “minority.” I’m glad to see that the Court isn’t settling into a boys’ club.

2. I hate Sotomayor’s gun stance. As a 1L last year my hand in Heller was minimal (I translated French language weapons case law and legislation for an amicus brief), but I cut my teeth in the conservative community on the all-hands-on-deck frenzy surrounding that case. It’s near and dear to my heart — not to mention critical and right!

Sotomayor makes it perfectly clear that she opposes incorporating the Second Amendment. Forgive my intellectual laziness at getting my news from blogs and regurgitating the same here, but see Dave Kopel’s description of Sotomayor’s gun jurisprudence below:

Judge Sotomayor’s record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.”

Marie Gryphon at Point of Law discusses how the Court may treat incorporation despite antiquated Supreme Court precedent expressly rejecting incorporation:

What the [Second Circuit panel, including Sotomayor] missed, however, was the significance of the fact that Presser was decided before the development of modern incorporation doctrine, which applies most of the bill of rights to the states through the Due Process Clause of the 14th Amendment. The Presser court therefore addressed only the issue of whether the Second Amendment applies to the states directly, and did not consider the question of whether the Second Amendment is incorporated by the 14th Amendment.

A Ninth Circuit panel recently took this better view, holding that Presser did not control the question of incorporation and that the individual right to keep and bear arms does indeed apply to the states via the 14th Amendment’s Due Process Clause.

The legal argument for incorporation of the Second Amendment is pretty strong, and it’s hard not to see the 2nd Circuit panel’s opinion as deliberately ducking a question about which its members, including Sotomayor, might have had public policy misgivings. Look for some close questioning about the Second Amendment during Sotomayor’s confirmation hearings from senators close to the NRA and other gun rights groups.

3. Here are some statements, non-directive as promised:

–> NYT:

“I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit,” she said, adding that despite her accomplishments, “I am always looking over my shoulder wondering if I measure up.”

SS’s NYT quote actually makes me like her more. She strikes me as such a Scalia-esque persona with her big opinions and loud, often-unpopular statements. This description of impostor syndrome tacitly confirms that she intends to influence ideology more than law. Obvi as a Justice she’ll have the opportunity (and responsibility?) to influence both, but Sotomayor has expressed her preference for influencing policy — read, ideology — rather than law. I’m generously assuming this is a preference — if Sotomayor doesn’t recognize the difference between policy and law then her infamous Duke slip indicates a much more dangerous problem.

Judge Sotomayor’s humility makes it seem like she intends to make the most of this “empathy” charge. She knows she was appointed to apply the rule of law with a thick dollop of compassion. It’s a loose-y goose-y application of the rule of law, but compassion and rules are not necessarily mutually exclusive. So good for her for effectively acknowledging that Obama chose her for a specific reason. She would not likely have been chosen were it not for this specific attention to the relatively unique aspects of her person. I respect her attention to a responsibility to pay it forward.

–> Prof. Epstein:

…[A]ffirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.

We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

–> Cato, per Ilya: Not a fan of affirmative action:

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.

–> Jan Crawford Greenburg’s fact-rich take: Souter’s seat was Sotomayor’s to lose.

–> SCOTUSblog’s summary of SS opinions.

–> An old piece, but see Jeffrey Rosen “indicting” Obama re Sotomayor.

–> Finally, one of my top three female role models Neomi Rao recommends some questions the nominating committee should ask:

– What matters most, the law or the result? Or put another way, when the law requires a result that you don’t like, what do you do? This might seem like an easy question. Judges interpret the law, they don’t make it. That was the view of President George W. Bush and his nominees to the high court. Mr. Obama has made it clear, however, that he thinks the law should often be about results — that the Constitution evolves to reflect modern times and statutes may be twisted to achieve justice. Any judge worth the name recognizes that the law will sometimes lead to a result of which she personally disapproves. When this happens, the judge must implement the law, not her personal preferences.

The president and Congress are elected to focus on results, to get things done, to bring about change. They can choose to implement empathetic policies that favor the weak and pull up the disadvantaged. In our constitutional system, however, the judiciary does not simply duplicate this political process. The Senate and the American people should make sure that a nominee to the Supreme Court understands the difference.

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