Archive for the ‘Constitutionalism’ Category

The Hyde Amendment: No Need for Equal Protection of Law for Republican Causes

Written by Robert Justin Lipkin on July 14th, 2009

Last night on the Chris Mathews’ Hardball  a discussion arose with Senator Orrin hatch about the possibility that President Obama’s health care program will reject tfinal-3.jpghe Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion.  Where’s the equal protection here? Two pregnant woman exercise their reproductive rights, one by choosing to terminate the pregnancy, the other by not. How can any reasonably conception of equality sanction such treatment? Lindsay Graham chimed in during the hearing by bristling at the notion that his tax dollars should be used to fund abortion.  But why should my tax dollars be used to fund childbirth? Perhaps I’m worried about overpopulation or simply have libertarian tendencies against governmental support for such private conduct?  In general the government can favor one policy over the other, but does equality sanction permitting such partiality when reproductive rights are concerned?  The Court has said yes.  But this is not a question of case law.  Rather, it’s a question of Republican consistency. Can two pregnant women in relevantly similar circumstances be treated in such a dissimilar manner? How the Republicans’ conception of equal protection can sanction such distinction? Or better yet how can the rule of law permit such a political choice?

The Republicans on the Senate Judiciary Committee are trumpeting the rule of law, equal protection under the law, and treating litigants in a similar manner. Yet, regarding the grotesque Hyde Amendment suddenly disparate treatment is permissible. The Republicans need to explain why the causes they favor need not be subject to the rule of law, but Democratic causes, well that’s another matter.

Hopefully, the Republicans member of the Senate Judiciary Committee will think twice before inconsistently throwing around “equal protection” and “rule of law” when these terms apply to Judge Sonia Sotomayor’s judicial decisions.

Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Written by Robert Justin Lipkin on July 13th, 2009

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience oe0fbcabb6007999e.jpgr appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.

Is Deliberative Democracy Possible in Contemporary America?

Written by Robert Justin Lipkin on July 6th, 2009

A deliberative democracy should inter alia address a diverse range of views to take seriously, critically evaluate, reject or accept as the circumstances indicate. Ghettoizing particular perspectives to that they are insulated from serious confrontation with other perspectives is anathema to deliberative democracy. While, American political argument thrives within the parameters of particular political paradigms, cross-paradigm argument is brutal, hostile, and blatantly dishonest.  Consider the posturing of the Rush Limbaughs and Bill O’Reillys in the media, and the Dick Cheneys in politics. (Yes, the Left has its share also.). Until fair, honest, and compassionate political attitudes define our political conversations, deliberative democracy will remain illusory and though we will speak and write volumes little consensus building will be possble.

Shouldn’t Judges Use the Same Interpretive Methodology?

Written by Robert Justin Lipkin on July 3rd, 2009

Isn’t there something peculiar about judges using different interpretive methodologies in constitutional adjudication? If constitutional judgments are objective, inter-subjective, or in some other way reliable across judges, shouldn’t the form of reasoning and interpretation generating the judgments be the same?  This doesn’t mean that if judges used the same methodology they necessarily would agree on every constitutional result. But the differences between formalism (textualism, originalism), say, and pragmatism are capacious suggesting that judges using these different methodologies are not talking about the same subject. In general, therefore, shouldn’t non-political decision-makers use the same standards for generating their decisions?

A Congressional Override of Supreme Court Decisions

Written by Robert Justin Lipkin on June 30th, 2009

American constitutional culture, despite the protestations of many political scientists, is thoroughly judicial at least regarding the controvetmpphporb0ha1.jpgrsial conflicts that engage the imagination of the nation.  The Court virtually has the final say concerning the results of constitutional conflicts and the authority to determine constitutional norms and the character and content of constitutional concepts. This judicial supremacy isn’t inevitable. An interbranch solution between Congress and the Court might serve the virtues of republicanism and democracy better than judicial supremacy. Chief Justice Marshall entertained the possibility of a congressional override, although admittedly his remarks were prompted by circumstances in which the newly established Jeffersonian Republican administration was intent on attacking (or even eliminating) the last bastion of Federalist powers, the federal courts.  Rather than impeach a Supreme Court Justice, Chief Justice Marshall writes: “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the judge who has rendered them unknowing of his fault.”  3 Albert J Beveridge, The Life of John Marshall 177 (19191). The point here is that sharing the interpretation of the Constitution between the legislature and the courts would promote a system of self-government where the people and their representatives would play a vital role–at least a co-equal role–with an unelected Court. Additional structures linking the different branches of government would preclude 5-4 decisions where both sides have reasonable arguments, yet the vote of one individual determines the future of the nation.

We The Court

Written by Robert Justin Lipkin on June 23rd, 2009

Americans’ love-hate relationship to the Supreme Court is bewildering. We, Americans, pride ourselves on living in a republican democracy. Majority rules, but only within the restraining framework of individual rights. Hence, American democracy is perfectly compatible with constitutional “filters” to make sure that majorities abide by the rights of minorities.  However the question arises whettmpphpldyakw1.jpgher these filters can permanently rob the democratic rights of self-government and deposit them in a system of institutional practice which renders the democratic right to self-government problematic.  Is this true of judicial constitutionalism in the United States of America? What conceivably can justify the Court having virtually the final word of constitutional meaning, norms, and imperatives? Few scholars, politicians, or even citizens want to recognize this as a problem and pursue possible remedies.  But it nevertheless is a problem that thwarts the development of an authentic institution where through filers which ultimately can always be revised by the people, Americans can decide upon the direction of their future. Watch next month when one candidate for membership in a nine-member institution with enormous power will be subjected to intensive questioning about their substantive constitutional commitments and the methodologies used to arrive at these commitments. The irony in this ritual will be that the questions will produce few significant answers. Neither the Right nor the Left will be satisfied. The problem is that this practice of judicial constitutionalism has rewritten the Preface of the Constitution from “We the People.” to “We the Court.” Despite the many important interactions between the elected branches and the judiciary, the Court has over the past two hundred years garnered an inordinate amount of power, a power incompatible with any plausible sense of self-government.

The Controversy over Judicial Review Continues

Written by Robert Justin Lipkin on June 16th, 2009

Lawrence Goldstone’s book, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review (Walkertmpphpwjom001.jpg 2008) promises to be an illuminating contribution to the controversy over whether judicial review, let alone judicial supremacy, was made up, as Justice Scalia contends, or rather in some sense intended by the Founders and ratifiers of the Constitution.  Chapter Two is one of the best discussions of the idea of a revisionary council I’ve come across as well as plainly demonstrating the radical conflict over the Court’s role in such a council and just what its independent role should be. It seems clear the Convention cannot be used as dispositive evidence that the role of the Court to strike down legislation somehow was assumed or that there was anything resembling a consensus on just what this role should be.  I haven’t finished reading the book yet, but if the first few chapters are any indication of what’s to come, I eagerly await Goldstone’s narrative.

Justice Scalia’s Textualism: Brilliant or Perverse?

Written by Robert Justin Lipkin on June 15th, 2009

Justice Scalia insists that the Constitution be understood according to the most reasonable interpretation of the language used at the time to formulate and ratify the document. Yet, he writes:

The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means.  Or that the Supreme Court shall have the authority to disregard statutes by the Congress of the United States on the ground that in its view they do not comport with the Constitution.  It doesn’t say that anywhere.  We made it up.  Now, we made it up very sensibly because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law . . . and what the law means is the job of the courts.

Anyone have even a modest familiarity with law and logic should be incredulous at this statement. First, if the Constitution nowhere says that the Court is the final authority on constitutional meaning then for a Scalian textualist that should end the matter. Second, Scalia believes that the Court, at least in this case, can just make up constitutional meaning, absent any constitutional text at all, when there is in his view a good reason for doing so. Then how, with intellectually honesty, can he reject the notion of an implied right to privacy, including abortion and the right to decriminalized same-sex intimacy, when there is some textual support for these rights in the “liberty” provision of the Fifth and Fourteenth Amendments? Finally, whether it is exclusively the courts job to say what the law means is arguably something that not even Chief Justice Marshall made up. To insist that that’s the reason for permitting the Court to made up judicial supremacy in circular reasoning in the extreme.

More from Bill Moyers’ Journal

Written by Robert Justin Lipkin on June 12th, 2009

Earlier this week I posted virtually the entire transcript from a Bill Moyers’ Journal program on the role of the media in American society. Let me reprise one exchange that demonstrates the way the media should handle unsubstantiated claims in this case concerning Judge Sonia Sotomayor. Bill Boyer first quotes Bob Schieffer interviewing Senator Kyl on Face the Nation.

BOB SCHIEFFER I want to get right to the quote that has caused all of the controversy that Washington has been talking about all week. What Justice, or Judge Sotomayor said in the speech eight years ago. And here it is. She said, “I would hope that a Latina woman, with the richness of her experience, would more often than not, reach a better conclusion than a white male, who hasn’t lived that life.” Senator Kyl, is that enough to keep her from being confirmed as a Justice on the Supreme Court?

BILL MOYERS: So, instead of deconstructing the quote, Bob plays the beltway card: is this going to cause her not to be confirmed?

JAY ROSEN: Well, first of all, Bob Schieffer forgot to ask himself whether the controversy that had gripped Washington was a legitimate controversy. And surely that’s one thing we need him for.

BILL MOYERS: Who’s to decide that? Legitimacy-


BILL MOYERS: -or illegitimacy?

JAY ROSEN: Well, Tom Goldstein, an author of the SCOTUSblog, which is a very carefully put together blog about the Supreme Court, and a law professor – looked at the record of Sotomayor’s decisions. In 96 cases, where there were discrimination claims before the court, she decided against the claim of discrimination 78 times. And there were only about ten where she sided at all with a plaintiff charging discrimination.

Now, if you know that, if you know that record, then the whole controversy looks kind of fake from the beginning. And so, what Bob Schieffer did was take what Washington is buzzing about, refused to fact check it, take it as a given, and ask a kind of insider political question. “Is this going to sink her nomination?” Which is premature and which abandons his role as a journalist in determining what is a legitimate controversy. What should we be arguing about? Which views have standing as facts, as fact-based?

This is a good example of distinguishing between legitimate and illegitimate controversies. Indeed, this record might give progressives pause, but in no way can it be used support the contention that Judge Sotomayor believes in race-based justice. Bob Schieffer, a distinguished journalist, failed in his responsibility to the public by pursuing a baseless, sensationalist question rather than attending to the actual record which strongly suggests there’s no possibility of inferring from Judge Sotomayor’s judicial record the sort of radical the Republicans are so intent on portraying her as.

When Will the Republican Attack on Civil Discourse End?

Written by Robert Justin Lipkin on June 9th, 2009

Jon Voigt has joined the Republican distillers of venom and vitriol absent facts, arguments, and reasoning. Consider: “Are we supposed to sitting and waiting, watching for the possibility of a new Holocaust? Who’s going to take the responsibility to keep America, I mean Israel, safe. I’ll tell you why this really scares the hell out of me. Everything Obama has recommended has turned out to be tmpphpbmaixv1.jpgdisastrous. . . .  It saddens me greatly to think we were the great powerful good in the world. We as Americans knew America to be strong. We were the liberators of the entire world. We are becoming a weak nation. . . . Obama really thinks he is a soft-spoken Julius Caesar. He think he’s going to conquer the world with his soft-spoken sweet talk and really think he’s going to bring all of the enemies of the world into a little playground, where they’ll swing each other back and forth. . . . We and we alone are the right frame of mind to free this nation from this Obama oppression. Let’s give thanks to [Republicans] for not giving up and staying the course to bring an end to this false prophet, Obama.” The utter lack of content in this diatribe and the fact that some people believe it serves as legitimate public dialogue is anathema to everything the Founders of this great nation hoped to achieve by “beginning the world anew.” Yet, Voigt and his cohorts steeped in this visceral American superiority have no idea what a deliberative democracy and its public discourse is supposed to be like. Obama, like any other American leader, should be subject to severe, reason, and insightful criticism. Voigt has got the severity right, but where’s the reason and insight? The inanity of much of what passes for Republican political discourse does a great disservice to republican democracy and the Constitution upon which it is based. I do not believe that thoughtful Republicans would take this even remotely seriously if responsible Republican political leaders and journalists spoke up against its poisonous effect on the future of the nation.