American Civil War Alternate History Hypothetical

Just a thought experiment, roll with me…

What if, in the American Civil War era, it was the North that insisted upon permitting slavery whereas the South opposed slavery?  So, in that vein, let’s say that the northern states began to seek to impose pro-slavery or slavery-compromising legislation upon the southern states through the federal government and supreme court, and then the southern states seceded from the United States on the grounds that they would not permit the northern states to impose their unjust pro-slavery national laws upon them.  The southern states create a confederacy which will protect each state’s ability to outlaw slavery (or not) and no other state will be able to impose legalized slavery upon them.

First question: in this situation, would you prefer that the confederates (southerners) win the civil war rather than the union northerners?  In other words, would you root for the pro-slavery north or the anti-slavery south?

Second question: if we took away the issue of slavery altogether, would you prefer confederacy or our current federal government?  What’s better, each state left to decide its own fate, or a national government deciding once for all?

Now, in this hypothetical, keep in mind that if you said you prefer a strong federal government, someone listening might call you a “racist” for supporting a form of government that once supported slavery.

Just a thought…

U.S. Population Increase and Representative Democracy

According to the U.S. Census bureau, in 1790 the United States had 3.9 million persons in 13 states from Maine to South Carolina.  New York City had a population of 33,000.

Today, the nation has 308 million people, and New York City has a population of 8.2 million.  In other words, the Mayor of New York answers to more than double the constituents that George Washington did as President of the United States at the time the Constitution was ratified.

A small number of people produced a great document that currently governs a far greater number of people.  However, at the time that the Constitution was passed, the government was necessarily closer to its people because each representative had a much smaller constituency to please.  Has the nation out-grown the constitution, not in principles but in sheer representative force?  No doubt the refrain “I’m going to write a letter to my Congressman” carries even less weight than it used to.  Should the states be divided up for federal purposes, so that perhaps even each county receives a senator?

While such a change may sound radical and unfathomable, it might pose a beneficial check to the dual-party system imposed on the nation.

Constitutional Law 101 for Judges: Speech on Public Sidewalks is Protected

Apparently not even the public sidewalks are safe for free speech anymore:

Alliance Defense Fund attorneys filed a lawsuit Monday against Los Angeles County officials on behalf of a Christian man who was prohibited from sharing his faith on a public sidewalk outside the San Fernando Courthouse. County officials told Anthony Miano that he could only conduct his free speech activities across the street on a sparsely used sidewalk.

I have been to several courthouses in Los Angeles County.  Outside the Van Nuys Courthouse, while waiting in a long line of attorneys to enter the courthouse doors upon their first opening in the morning, there was a lunatic with a sign and a bullhorn calling all of us “Nazis,” ranting and raving about all kinds of nonsensical matters.  I was informed by the attorney next to me that the man shows up often.  At first I was annoyed, but then it occurred to me, this is why we have the First Amendment (and the state constitutional equivalent).  Anyone can say whatever he wants.  It’s his right, and nobody even tried to stop him.  Impressive, when you consider what might happen to him in another country…

…or even another American city within the same county.  Apparently, judge Robert J. Schuit (the supervising judge of the San Fernando Courthouse) fancies his courthouse much more elegant and well-mannered, not even allowing so much as a quiet conversation about religion on the public sidewalk anywhere near his courthouse.  Those pesky state and federal constitutions can be ever-so inconvenient sometimes.

Constitutional Court Cases v. Democracy

I came across a brilliant synopsis of how the U.S. Supreme Court should decide “hard cases” that involve a party claiming an individual right under the auspices of the Constitution:

I confess that in the end I do not have much confidence in constitutional jurisprudence. One consequence, it seems to me, of requiring of the Court a wisdom about “rights” beyond that of the Framers is that it undermines the habits of citizenship that rely on the confidence of the people in constitutional majorities. I modestly suggest, therefore, a rule of prudence to be applied to constitutional jurisprudence: A Justice should always consider, when deciding “a novel and difficult case,” whether the outcome will increase or diminish the ability of the people to govern themselves by the mechanisms laid down in the Constitution. This very likely would mean subordinating the intractable questions of individual right, insofar as they reflect changing social mores, to the political process. True, the tyranny of the majority is the intrinsic danger in a democracy, but the tyranny of pernicious ideas, tricked out in the language of rights, it seems to me, is far worse than having to abide by the rule of constitutional majorities.

This analysis is an afterthought in a broader book review by Robert Licht concerning Mary Ann Glendon’s book critiquing American jurisprudence on individual rights and arguing in favor of communitarianism (which Licht’s book review does not support).  While this post is not about communitarianism, I find the analysis quoted above to be spot on. 

The Supreme Court’s individual rights jurisprudence has subverted the political system and removed important questions from the will of the people.  (Keep in mind that Supreme Court Justices in the U.S. are unelected and are appointed for life, so they are completely unaccountable to the people.)  In the close cases, the Supreme Court often exploits the ambiguity in the law to declare national policies and invent new “individual rights” under the Constitution that cannot be changed by anyone except the Supreme Court.

If these individual rights do not come explicitly from the text of the Constitution, where do they come from?  God?  Hard to imagine that’s the case, given the types of issues the Court has removed from the political will of the people.

When is the last time you were able to vote on the legality of ordinary abortion?  When is the last time that anyone you elected (on the local, state, or federal level) had a chance to vote on the legality of abortion?  How about prayer in schools?  The Court should tread lightly in these areas, deferring to the political process.  Yes, the political process may yield an unjust democratic decision, but that is much easier to correct than an unjust legal decision made under the Constitution.  To correct that, the people must amend the Constitution, which is no easy task.  This is why losers of elections run to court.

The Meaning of “Rights”

We hear a lot about “rights” in American discourse.  Just watching Sportscenter, I heard the term “animal rights” (in reference to Michael Vick), which got me thinking.  What is a right?

Civil rights.  Animal rights.  Equal rights.  So-called “reproductive rights.”  “Gay rights.”  The right of privacy.  We hear lately that everyone has a “right to healthcare”. 

From America’s founding document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” 

I did a Wikipedia search on the subject just to see what was there, and the summary was brief and, in my opinion, incomplete, but it still mentioned a couple of the concepts I will discuss below. 

Abortion on Demand: a History and Explanation of Why Any Woman in America Can End Any Pregnancy at Any Time, Even Up to the Day of Childbirth

Professor Matthew J. Franck gives us an excellent history of the state of abortion law in the United States in the context of the Judge Sotomayor hearings.  The sad fact is, many Americans do not know that “Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth.”  Professor Franck asks and answers, “How did Americans become so confused on this issue and how did the Supreme Court end up where it has?”  I highly recommend reading his full article, but I’ll provide some highlights here. 

He quotes the confirmation hearing Q&A:

Judge Sotomayor Won’t Make Law: *Wink Wink Nudge Nudge

Courtesy of The Believer’s Guide to Legal Issues:

The fact that she got such a laugh when she said “judges don’t make law” reveals the state of affairs in our judiciary (not to mention among Duke University law students, which are not unlike the majority of other law students across the nation).  You can expect more undemocratic law-making to come when she is confirmed.

On the Sotomayor Testimony: Clarification

Professor Matthew Franck provides a nice counter-point to Professor Seidman (as quoted in my last post):

Mike,

For my part I find the president’s account of the role of “empathy” in judging to be alarming, and I would welcome Judge Sotomayor’s repudiation of his arguments—if I believed her. Frankly, I don’t.

I think I know what you mean by the “official version” of what judges do. I agree with you that “applying law to facts” is too simplistic to capture the nuances of what Felix Frankfurter called “judicial judgment.” But if it’s not where I would stop, it’s not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.

I would agree with Professor Franck that the Court’s political judgments and other characteristics (race, gender, economic theories, etc.) must be (and can be) minimized and such issues left to the legislature.  The problem comes when a truly indeterminate case arises.  In those rare cases, the Court must make a judgment where the legislature has not yet made a judgment (this is the point that Judge Sotomayor pretends does not exist, and Professor Seidman castigates her for that).  Hopefully, the Court’s judgment in those instances can be overruled by the legislature so that democracy will prevail over the judge’s opinions (which is why it is so dangerous for the Court to willfully interject its opinions as constitutional law, which cannot practically be undone).  One of the problems is that Courts are all too willing to find an “indeterminate” case where a principled answer does exist.  Additionally, where the Court must make a decision in an indeterminate case, I would hope that the judges have something more than “I’m a wise latina woman” on which to base their decision.  It is at this point that I would probably part ways with just about every law professor in the nation: I believe that the truly indeterminate cases are rare and can nevertheless be decided by objective principles rather than mere willful power. 

On the Sotomayor Testimony: Law Professor Seidman Says it Best

Georgetown Law professor Louis Michael Seidman sums up the Sotomayor testimony perfectly during this online debate:

Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Bravo, Professor Seidman.  His remarks adequately express why I was so frustrated listening to Judge Sotomayor pretend that all she would do is “apply the law to the facts” without a hint of ideological bias or underlying philosophical presupposition.  It was like a big “emperor’s new clothes” charade–everyone in the room knew it wasn’t true, but no one would say it. 

I expect that I disagree with Professor Seidman on a great deal of legal and political philosophy, but he is right on this–even first year law students know that judges bring philosophical “baggage” with them to their cases.  And so they should.  I may disagree with Professor Seidman on what is the appropriate “baggage” to bring, but we both agree that for Judge Sotomayor to pretend that she has none is nothing less than perjury. 

Judge Sotomayor and Democratic Senators Use the “Record” as Slight-of-Hand

The ultimate example of Sotomayor’s chicanery in these hearings is that she keeps pointing to her “record.”  Senator Schumer has chimed in by insisting that she hasn’t “made” any law in her entire record. 

Her “record” of case decisions thus far, of course, is the result of her being subject to the review of a higher court (and also of her aspirations to become a Supreme Court justice). When she is in charge as a Supreme Court justice, she will get to set the course with no oversight and no higher position to which she can aspire. That’s when we’ll see her true philosophy put into action. And that is why she’s trying to ignore her speeches and point to her “judicial record”, which has little bearing on what she’ll do when she’s cut loose from the shackles of a higher court and future confirmation hearings. Her speeches reveal the philosophy she will actually employ.

That philosophy is of the “critical legal studies” school of thought, which ultimately claims that all judicial decisions are biased and cannot help but be so, and that judges therefore should make the law whatever they think is “just” (though in my opinion they have no viable framework for determining what justice is, so they just do what they want). Judge Sotomayor is unlikely to show much restraint as a Supreme Court justice, notwithstanding her alleged “record” as a subordinate judge.

When someone has to say one thing in one context where he/she is bound by rules and oversight, and then that person says something different in a context where he/she is free to say whatever he/she wants, which do we think is more honest?