I recently came across the following quote from Posner’s How Judges Think:
If I am right that [the Supreme Court] is a political court, the absence of term limits is an affront to democratic theory; conferring life tenure on politicians is profoundly undemocratic.
From Posner’s perspective, the absence of term limits can be regarded as an affront to democratic theory. But turning a separate branch of government with a completely different purpose in our tripartite system into a second legislative branch is certainly an even bigger affront to American constitutionalism. Imposing term limits on the Justices does nothing to address this central – and much more significant – concern. The biggest affront to our structure of government is settling on a false application of America’s constitutional ideals. And this, in fact, becomes the real affront to democratic theory: judges that reach beyond the constitutional text’s original understanding by articulating new rights under the guise of interpreting the text strip the population of its basic right to use the democratic process to determine for themselves the issues that the Constitution does not address. Such a jurisprudence essentially robs Americans of their democratic voice on the most divisive issues.
In so doing, the Court seals its fate as a political institution. So long as the America that people want depends in large part upon the composition of the Supreme Court, nomination of potential justices will be politically charged rather than merit based. Justices will be chosen based on whether they interpret the Constitution strictly or expansively. They will be chosen based on whether or not they plan to defend the constitutional protection of abortion, articulate a constitutional right to same-sex marriage, or interpret other provisions as protecting a newly defined fundamental right. In so doing, nine justices unaccountable to the electorate will be blanketing the entire country with their own subjective beliefs as to what rights ought to be in the Constitution.
The most crucial point here is that this should trouble people of all political stripes. I am often astounded by how many Americans seem completely indifferent as to how rights are protected. They don’t care if a state law is passed, a federal law is passed, a judge reads a new right into a state or federal constitution, or if the Constitution is simply amended so long as they obtain their desired result. But this is one of the most flagrant examples of “ends justifies the means” analysis present in our society. We should be troubled by ultra vires acts by the government regardless of our beliefs. I strongly believe in a woman’s right to choose to have an abortion and in everybody’s right to marry whomever they wish. But I also believe in every American’s right to have their say on these divisive issues through the basic democratic process that this country was founded upon. I cannot justify the uniform application of my personal ideals to the whole country solely upon my strong desire for such a result. Absent a clear mandate in the Constitution, I, like everyone else, must seek desired change through the democratic process.
Consider the alternative. If Roe v. Wade was overturned, the decision of whether or not to prohibit abortion would be left to the states. People all across the country would be able to voice their opinions on the issue through their individual votes on local leaders. Alternatively, Congress could conceivably use their power under the Commerce Clause to protect a basic right to abortion through statute. Either of these results would remove this lightning rod of an issue to its more appropriate home – the political sphere. Such a turn of events would result in the Court regaining a large degree of its lost integrity.
It seems safe to say that most people around the world are surprised by the selection of President Obama to receive the Nobel Peace Prize. The committee sent out solicitations for nominations in September of 2008 and all nominations had to be postmarked no later than February 1st 2009 – a time frame ranging from 4 months before to 12 days after Barack Obama was sworn in. I would love to hear the recording from Robert Gibbs’s phone call early this morning informing the President that he had won. We are told that he said he was “humbled” to receive the prize, but I’m pretty sure something more along the lines of a “you’ve got to be kidding me” is more accurate.
Without a doubt, the President has shifted the rhetoric of the previous administration and has thereby changed the international climate. His speech in Cairo was historic and demonstrated a real desire to make amends with the Muslim world. He’s showed an unprecedented willingness to sit and talk with historic enemies. He’s begun a push toward nuclear disarmament which, if successful, would certainly be deserving of a peace prize. But almost everyone knows that the President hasn’t accomplished anything truly of substance just yet, although many are confident that he in fact will.
In any event, a peace prize at this stage of the game means several things. It’s demonstrative of strong international support for the President and should increase his clout on the international stage. In dealing with the challenges posed by the Middle East and North Korea, this can definitely strengthen his hand. Perhaps the political fallout will even be beneficial to Obama at home, paving the way for him to push through his domestic agenda. Nobody should underestimate the power of simple popularity.
But I think there’s a good shot that this could backfire for Mr. Obama. He’s likely to be scrutinized a lot more as people will expect him to live up to his early accomplishment. And as if Republicans needed any more ammunition to showcase how little the President has accomplished, they are no doubt going to take full advantage of the genuine shock that the win has generated. If I was President Obama, I’m not sure I’d want this prize just yet.
A friend of mine just told me that there’s an email being circulated at his job that President Obama is receiving the Cy Young award for throwing out the first pitch at the MLB All-Star Game. I’m pretty sure that SNL is going to have a field day with this whole thing.
I like Janeane Garofalo. I really do. She’s knowledgeable, funny, and seems to be truly passionate about society’s problems. But I think she suffers from a pretty common partisan/ideological affliction that keeps her from seeing things accurately. This was certainly on display on Friday when Garofalo appeared on Real Time with Bill Maher. Here’s the first thing that she said:
It’s obvious to anyone who has eyes in this country that teabaggers, the 9/12ers, these separatist groups that pretend it’s about policy, they are clearly white identity movements; they are clearly white-power movements. What they don’t like about the President is that he’s black, or that he’s half black. What also is shocking is that people keep pretending that this isn’t the case with these people . . . It’s weird that whenever this comes up in conversation, so few people are willing to say that it’s racism . . . What if black people showed up bearing arms at a McCain rally?
First thing’s first: bringing guns to presidential rallies is stupid. Any philosophical point that the gun-toter is trying to make is significantly outweighed by the message of violence toward the president that the gun sends. But bringing race into this seems equally silly. Call me crazy, but I’m pretty sure that the guy in this video who brought a gun to an Obama rally is not white.
Second, Garofalo is quick to paint an entire movement with a racist brush – a movement that, on its face, is not about race, but about the philosophical direction of this country. She’s willing to peer into these peoples’ souls (a la Bush peering into Putin’s) and conclude that they are motivated by a racist agenda; a collective disgust that a black man is President. But isn’t it possible that these people are motivated by the grievances they actually cite? Last time I checked, there’s a real ideological divide in this country about the proper role of government and, last time I checked, this divide is as old as the country itself. Surely the fact that a black man is President shouldn’t turn this centuries old debate into one dominated by race.
Interestingly enough, Garofalo is much more careful about her generalizations when the conversation shifts to Hollywood’s support of Roman Polanski. After Bill Maher lists some names who have pledged their support for the director and voices his frustration with greater Hollywood over this, Garofalo chimes in as follows:
Hollywood is not this monolith of like-minded people. Hollywood is not this entity that moves with one mind.
Here, I agree with her 100%. There’s no reason that the decisions of Woody Allen and Martin Scorcese to support Polanski should rub off on all of Hollywood. But why can’t she give an equal benefit of the doubt to tea-baggers? True, some of them might be racist. But a portion of any mob might be racist, regardless of what they’re preaching. And, even so, why should the racism of a few rub off on the rest of a group, especially when the grievance they explicitly cite isn’t racist?
Let me explain myself a little more here. I’m no tea-bagger, 9/12er, or any other member of a partisan/ideological organization. Nor am I a fan of large demonstrations like the ones we’ve been seeing. Strategically speaking, they tend to strangle their own causes, no matter how legitimate, by opening themselves up to accusations of craziness, racism, etc. (as evidenced by this post). But I do think it’s possible to parse through some of the hysteria in these movements and find a legitimate point worth addressing and debating. And when I hear certain people make accusations of racism in, what seems to be, an effort to discredit anything that the movements stand for, I start to think these people just don’t have a real answer.
Network neutrality is often framed in the context of free speech. In fact, it’s commonly referred to as the “First Amendment of the Internet.” Blocking access to Internet content and applications, without a doubt, implicates some of the fundamental free speech values embedded in the First Amendment. It concerns the free flow of information in “the market place of ideas” and basic autonomy interests of end-users. But do these free speech values inherent in the First Amendment implicate the First Amendment itself? Would network neutrality legislation sit well with our free speech doctrine? And if the First Amendment does not reach the network neutrality debate, should it be reinterpreted to do so?
Jack Balkin argues that contemporary First Amendment doctrine is irrelevant in the face of 21st century free speech issues. The modern day battle, as he sees it, is framed in the following way:
New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.
This dynamic certainly implicates free speech. But the way I see it, this is a problem that is blind to the First Amendment itself – which prevents the government from abridging speech. All of this implicates private parties in the private sphere. Without a complete re-articulation of what the First Amendment is designed to guard against, it would seem that the Constitution is inapplicable here, right?
I recently came across a paper that makes an interesting argument. The author argues that network neutrality legislation would likely trigger intermediate scrutiny by the courts, but might not survive it. This is because network neutrality is akin to “must-carry” provisions that the Supreme Court has addressed in other contexts – namely in Turner v. FCC. In order for the court to justify “must carry” provisions, which the author analogizes to network neutrality legislation, the government must demonstrate, with substantial evidence, that a real harm exists and that regulation will alleviate the harm. Because the author thinks that the Court might find the harms surrounding network neutrality “conjectural,” legislation will not survive the inquiry. In the face of this, the author essentially calls for a new First Amendment that recognizes the multi-speaker environment of the Internet.
I have two responses to this argument. First, the paper seems to have been published prior to the Comcast/BitTorrent fiasco which put a very real face on the network neutrality debate. If the harms of discriminatory policies implemented by ISPs were conjectural before the Comcast example, it certainly can’t be considered such in the wake of it. So, if the author’s doctrinal rubric is the one that prevails in the courts, net neutrality legislation might survive a challenge. That is, of course, if such legislation is ever passed. The FTC is apparently warming up to enforcing such policies, but I feel like we’ve been hearing this for years.
Second, it seems that we should keep the First Amendment out of this debate. If network neutrality is justified, it should be because policy makers on the ground see the regulatory merits in mandating non-discriminatory access to Internet content, notwithstanding the economic interests of the ISPs. It seems unnecessary and unwise to create first amendment rights enforceable against private entities.
Separation of powers is a common theme in the history of the judiciary. Although Article III does not grant the Supreme Court the power to strike down laws it considers repugnant to the Constitution, every law student in America knows that this power exists thanks to Chief Justice John Marshal’s opinion in Marbury v. Madison. Place this in the context of the following quote from Posner’s How Judges Think:
The original precedent in a line of precedents could not have been based on precedent. At the origin of the line must be something else. It might well be a policy judgment or, what often will amount to the same thing, the interpretation of a vague statute or vague constitutional provision – and the policy judgment or the policy-laden interpretation might well be determined by ideology.
Not only is the foregoing true, but it seems especially so with regard to Marbury – arguably the most important legal decision in American history. The opinion that gave the federal judiciary its most consequential power is founded not upon the text of the Constitution but upon Marshal’s preconceptions; perhaps his beliefs in a strong federal government, a strong federal judiciary, and a system of checks and balances. So one can certainly argue that “the rule of law” (or a “government of laws not men”) had immensely significant exceptions, even from the onset. We should recognize this regardless of whether we think judicial review is a good thing. And proponents of judicial review should at least recognize its drawbacks. After all, Marbury may have been the seed that was responsible for the Supreme Court becoming the largely political institution that it is today. Without the enormous power of judicial review and the exclusive voice of constitutionality, the Court would be stripped of almost all of its political utility.
