All Posts Tagged With: "law"
A few days ago the University of Illinois lost one of its greatest leaders and legends, former Chancellor, Dean and Professor John Cribbet. Generations of Illinois College of Law alumni treasured Professor Cribbet, and Former U of I President Stan Ikenberry said, “John will be remembered as the most beloved Illini of all time.” There are several accounts online of Professor Cribbet’s life and legacy, including are articles prepared by the College of Law, the News Gazette, and the Chicago Tribune. and the College of Law will be having a ceremony to celebrate his contributions on Saturday.
Here with his permission, I would like to share the words of my friend and mentor, Dr. Stan Levy, former Vice Chancellor for Student Affairs, who worked closely with Chancellor Cribbet when he led our University:
Today’s e-mail brought the news of the passing of Chancellor Emeritus and Professor Emeritus John Cribbet. He had been ill for quite some time.
John was a prince of a person, a one of a kind Illinois original. Distinguished scholar, teacher, college dean and administrator. community-minded for both the University and Champaign Urbana communities. Before it was reorganized the Senate Committee
on Student Discipline was totally college deans, and the junior dean was ‘honored’ in serving as its chair. John received this assignment during some of the most difficult days at UIUC. When Bill Gerberding elected to leave the Chancellor’s post after only 18 months on the job, John was asked, almost dragooned, into serving first as Acting Chancellor and then as Chancellor at a time when the University was under great stress, athletic issues and significant budget stresses especially. John distinguished himself in many ways. In the dark days of his tenure, and there were many, he was the ‘cheerleader’ who always saw the silver lining. He was always upbeat. His love for the University; his respect for faculty; his gracious way of dealing with his staff; his respect for the young leaders of the community, students, were always present. His stories – and his speeches – were always insightful and memorable. His words were always his own; he wrote his own materials. And then there were his stories: Ponca City, General Patton, etc., a small array woven into amazing contexts. He was a craftsman of the first rank in his use of language.
He was a terrific leader, a superb boss, a confidant, a good friend, and amazing supporter of what we sought to do in Student Affairs. He was a gentleman at every turn and time. His five years as Chancellor helped to change the face of the Campus. It was a distinct personal pleasure, and constant learning experience to work for John.
May he rest in peace.
A service will be held at 2 p.m. Saturday in Rowe Auditorium at the College of Law.
Can a legislative joint resolution trump a state statute? The answer to this question is almost always an immediate “No.” But we may have a special case in Illinois. Read more…
This week was a victory for free speech at Illinois. President B. Joe White retracted a wrongheaded ethics policy that restricted political speech. White eventually did the right thing, but he displayed a startling lack of common sense and waiting almost three weeks to revoke the policy was a failure of leadership.
As somebody who wants Democrats to win elections and understands the importance of persuasive political rhetoric, I see obvious value in the way many Democrats have come to frame the abortion issue as promoting a policy of making abortions “safe, legal, and rare.” As a human being with genuine beliefs and opinions, I consider such rhetoric to be an extremely unpleasant surrender to the viewpoint that women who get abortions are making morally inferior choices. So I reacted with mixed feelings to the Democratic platform’s [PDF] draft section on abortion:
The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman’s right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right.The Democratic Party also strongly supports access to affordable family planning services and comprehensive age-appropriate sex education which empowers people to make informed choices and live healthy lives. We also recognize that such health care and education help reduce the number of unintended pregnancies and thereby also reduce the need for abortions.
Note that there is no “safe, legal, and rare” language (the way there was in 2004), and that the only hint of moralizing on the issue is in reference to “reduc[ing] the need for abortions.” On the whole, pretty strongly pro-choice language that is unlikely to make pro-life progressives happy.
On balance, I think that’s pretty great. I understand the value in making appeals toward more socially conservative Americans who are open to voting for Democrats but who get hung up on abortion. But ultimately I think those appeals can be made without issuing moral condemnations of abortion. Doing so involves emphasizing the consequences of policies over the moral nature of the issue, as in: “You and I disagree on the moral question at stake. But Democrats favor better sex education, increased access to contraception, and increased support of affordable family planning, health care, and adoption. I favor those things because I think they help people, but another thing they do is reduce the number of abortions in this country. I don’t care much about that, but somebody with your moral views obviously does, so you should probably vote for the party whose policies will reduce the number of abortions rather than the party that will try to capitalize politically on the issue by employing a lot of moral lecturing but which has done essentially nothing in practice to stop abortions from happening.” I’m comfortable with that argument, while I’m not so comfortable saying, “Yes, I concede abortion is wrong, but it’s still not a good idea to ban it.” For one thing, I don’t agree with that argument; for another, I think there’s more political efficacy to the first argument seeing as how it doesn’t piss off pro-choicers.
Fox News says: “Justice Department to Announce Charges Against Alaska Sen. Ted Stevens at 1:20 p.m.”
The International Court of Justice today called for the United States to stay the executions of five Mexican nationals on death row in Texas until the court issues its final judgment. The Mexican nationals had tried to argue in US court that they were denied their right under the Vienna Convention on Consular Relations to speak to their consulates after being arrested. They were denied the opportunity to make this argument on procedural grounds. At the time, the United States was party to an optional protocol which allowed individuals to file complaints against it in the ICJ, which these individuals then did, and the ICJ ruled in their favor. The governors and district attorneys of the states where these guys were on death row (mainly Texas) ignored the ruling, and then proceeded to ignore President Bush’s order to commute the death sentences. They filed suit in federal court, took their case to the Supreme Court, where they lost in a very important case I wrote about here. The United States by this time had withdrawn from the optional protocol that allowed individuals to file claims against it in the ICJ, seemingly leaving these guys without any more options, but then, not surprisingly, Mexico itself filed a complaint against the US on their behalf. That case is being heard before the ICJ right now, and thus the ICJ’s call today for the US to stay their executions until they make a final judgment.
It’s a fascinating sequence of events if you’re interested in this sort of thing, and it puts the US in a funky position. As a matter of constitutional law, the federal government can’t force Texas to commute their sentences. As a result, the federal government is forced into a position of being in violation of international law. The only reason for that, of course, is that those elected to power in Texas, et al, will be painted as a bunch of soft, leftist one-worlders if they so much as consider doing anything short of giving the middle finger to the ICJ. This is an incredibly unfortunate mindset which will have tragic results for those on death row and will continue to weaken the already battered image of the United States in the world.
One interesting observation about the news today. I first saw this story as reported on MSNBC’s website, the headline of which is “World Court urges U.S. to stay 5 executions.” Aside from the use of the term “World Court,” which I find irritating, that headline is an accurate reflection of events. I then went to BBC’s website and found the story as reported there. The headline of that article is now “Court seeks to stay U.S. executions,” which again is an accurate reflection of events. But when the BBC story first went up, the headline read “Court stays U.S. executions.” No “seeks to,” no “urges to,” nothing to indicate that the ruling would not be enforced (which I imagine it won’t be). That headline was rather misleading given that the ICJ has no enforcement power and thus can’t actually stay these executions; it can merely “order” the US to do so. It’s entirely possible I’m reading too much into this, but I do find it interesting that a British news agency initially reported on the story as though it were obvious that the ICJ’s ruling would have practical effect. The whole “Europe is so much better than America” shtick is an oversimplified cliche, but in the area of respect for international law and in particular international human rights law, it is absolutely correct. That the BBC’s initial headline had to be corrected to underline the ICJ’s impotence over the United States is a sad reflection on the way America has turned its back on its longstanding foreign policy tradition of liberal internationalism.
John McCain is, if nothing else, one smarmy SOB:
Senator Obama is obviously confused about what the United States Supreme Court decided and what he is calling for. After enthusiastically embracing the Supreme Court decision granting habeas in US civilian courts to dangerous terrorist detainees, he is now running away from the consequences of that decision and what it would mean if Osama bin Laden were captured. Senator Obama refuses to clarify whether he believes habeas should be granted to Osama bin Laden, and instead cites the precedent of the Nuremburg war trials. Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremburg trials and what procedures were followed. There was no habeas at Nuremburg and there should be no habeas for Osama bin Laden. Senator Obama cannot have it both ways. In one breath he endorses habeas for terrorists like 9/11 mastermind Khalid Sheikh Mohammed and in the next he denies its logical conclusion of habeas for Osama bin Laden.
Whaaa? Obviously if Osama bin Laden were tried in an international tribunal like Nuremberg, the United States would have no jurisdiction over him whatsoever and he would be provided a different set of protections under international law. Alternatively, if he were afforded habeas corpus in an American court, it would be one of the easiest habeas hearings in the history of habeas hearings, given that there is ample evidence that Osama bin Laden (and Khalid Sheikh Mohammed, and all the other well-known terrorists that McCain is trying to use to scare people into voting for him) has declared war on the United States and is, in fact, an enemy combatant. The reason President Bush has used Guantanamo as a weird little sanctuary in which no protections are necessary at all is so that he can detain a bunch of people for whom there is not evidence establishing enemy combatant status. But if that’s the case, we shouldn’t be detaining them!
The problem here is that McCain seems very unwilling to articulate any limiting principles on the exercise of the government’s authority to detain suspected terrorists nor on what we do with them once they are detained. Instead, he seems quite willing to paint a picture for the American people of well-known terrorists running free to wreak havoc if the rule of law is applied to them, despite the fact that affording these people the protections of any body of law at all would still allow for their detention in some form or another.
Of course, it’s well-established that McCain is an independent-minded, straight-talking maverick, so while these scare tactics may look awfully similar to those employed by President Bush and Karl Rove, they’re clearly very different.
Earlier today I participated in a debate on constitutional interpretation at my law school. What seems like long ago now, my friend Josh Rohrscheib and I once debated jurisprudence in the Daily Illini. In that article, I adopted the Ira Carmen position of essentially converting the judge’s role into that of a functional social scientist. Our own Lawrence Solum has a great description of Originalism, with a good summary of where the academic literature currently stands on it. I am going to invite the other three participants in the debate to contribute their thoughts to this post (Ken Logsdon, Jake Briskman, and Omar Jafri). Logsdon presented the pro-Originalist position, while I presented the rebuttal to Living Constitutionalism, which I have pasted below. I cannot defend Originalism, because I do not genuinely adhere to it, but I can attack the moral aristocracy created by Living Constitutionalism, which is what I do in the polemic that I delivered:
The problem with Living Constitutionalism isn’t so much with its fair and moderate reading of the Constitution, it is more so with its admittedly rare tendency to produce results which do not comport with the evolving standards of the community. This debate largely comes down less to that of interpretation and more to that of how we view the role of the judiciary in our democratic structure of governance. Living Constitutionalism is useless at its best and vile at its worst. It’s useless because mechanisms exist to channel and convert the evolving sentiments of the public into law. It’s vile because of the license it grants to a few justices to undermine democratic legitimacy by determining the scope of rights and of federalism. In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, “The Constitution: A Living Document,” in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural standards of the epoch, which is essentially what is argued for here today. The question though is who gets to be the barometer of the contemporary moral, political and cultural standards? Our opponents propose that barometer be the justices in some cases, rather than the people themselves as expressed through their legislators. It’s a curious concept that a justice would be able to better divine the moral and political attitudes of an electorate than the statesmen elected to gauge that very subject. Rights are something we all enjoy that are so fundamental to who we are as a society that we have decided to remove them from the table of debate and to not allow democratic consideration of them. So I can see three basic mechanisms by which a citizenry can express its preferences for expanding into new avenues of constitutional rights and the balance of federalism: 1) What Ken has laid out through the PI Clause, which would maintain democratic legitimacy, 2) The usual legislative process, which is equipped with great fact finding tools that the judiciary is not equipped with, and 3) the Amendment process. Liberals should fear living constitutionalism as well.
Just as liberals like Hugo Black and Yale’s Akhil Amar can be Originalists, so too can conservatives forge new rights under the mask of living constitutionalism. When justices begin pulling rights down from the fleecy golden Platonic clouds (paraphrasing Carmen), it makes it possible for rights to collide. These Platonic pipelines to the ethereal truth begin running into each other. Suppose that you have Justice Alito come along and say I think that moral philosophy and my gauge of the evolving standards of the community tell me that all potential fathers should have an equal say in the abortion decision. 50/50. Suddenly we have contradictory positions based upon the same jurisprudence, and so rather than trying to persuade us to adopt living constitutionalism, you should be doing the opposite, you should be urging us to stick with Originalism, you don’t want us having that kind of power, trust me…just as we don’t want you having that kind of power either. It’s all well and good when living constitutionalism is employed by someone on your side, but it becomes pernicious and poisonous when someone who does not agree with you begins to employ it, which of course, under your framework, they would be free to do. Just think of Scalia’s smirking glee.
Rehnquist’s Living Constitutionalism article in the Harvard Law Review quotes Lincoln eloquently summarizing the frustrations of the electorate after Dred Scott, “[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” The harm that CJ Taney inflicted upon the court’s reputation and judicial legitimacy took about a generation to repair, according to Rehnquist. Judicial decisions which usurp the democratic function have the effect of generally lowering the credibility of all subsequent Court decisions, after all, credibility is the force of the judiciary.
Probably the best analogy to Roe is Lochner. The right to contract is analogous to the right to privacy. The Social Darwinism and economic libertarianism of the day was thought by the justices to be the prevailing and evolving standard of the community. In his famous dissent, Holmes said, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner was an awful decision and a prime example of living constitutionalism employed by people liberals would disdain: economic libertarians. Holmes was saying that the Constitution defines the rules the game, the peculiar political philosophies of abortion or economics or biology are questions that ought only be answered by the legislatures. The Constitution does not purport and cannot sufficiently answer those political questions even when divined and decoded by the most eminent Platonic philosophers. Many living constitutionalists wish to disown Roe by labeling it as living constitutionalism misapplied or misunderstood, many pro-choicers admit that it is a bad decision. But you cannot disown Roe, without disowning living constitutionalism, you have to accept the good with the bad. When you grant that broad sweep of authority you fling open the flood gates to poorly wrought decisions.
Looking forward to inevitable Constitutional issues…biology and politics. The state should be able to stop a woman from giving birth to a zebra in the future, or to stop super human children from being born, which will absolutely be possible in our lifetime, ehh I’m not sure about the zebra, but the Einstein+Michael Jordan child is reasonable. It is a small constitutional step from Roe to a future justice saying, “A woman has the right of privacy to do what she wants with her body regarding biological manipulations of a fetus.” Of course, such engineering would have enormous effects on society at large and would not just affect the woman and her privacy. When you expand the breath of rights guaranteed us you risk building a foundation for future rights that may disquiet and discomfort you.
This is not to say that Originalists cannot disagree. During “the court’s 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.” The key however is that is narrows the band of discretion allowed a justice, which if you view the band of discretion as straddling the line of the best outcome, then reducing the variance will tend to produce results closer to the best outcome a greater percentage of the time.
The Judiciary is a bastion of unwavering law. The legislature is a bastion of wavering law. If liberals were happy with the legislative outcomes of this country, they would have no use for living constitutionalism. Living Constitutionalism is an expression of liberal legislative frustration. Frustration that the rest of the country doesn’t envision the same vast panoply of rights. Living Constitutionalism states that sometimes the democratic process breaks down and is incapable of properly guiding the country, which is ultimately a theory that states “these people don’t know what’s best for them and so the educated elite need to dictate it to them because they will eventually, in 20 years perhaps, realize that it’s best for them.” The problem is, that they could be wrong about the proper moral and social avenue for America. When you grant a justice the authority but not the fact finding tools to act as a legislature, it seems to me that you unnecessarily encroach on the legislative territory. I beg for examples as to when this encroachment would be necessary given the Originalist framework we have proposed.
For those interested in international and constitutional law, the Supreme Court yesterday handed down an incredibly important decision in the case of Medellin v. Texas. You can read the full decision by Chief Justice Roberts (joined by Justices Kennedy, Scalia, Thomas, and Alito), along with Justice Stevens’ opinion concurring in the judgment and Justice Breyer’s dissenting opinion (joined by Justices Ginsberg and Souter) here (PDF). Opinio Juris (which is just an all around fantastic legal blog) has a whole series of posts discussing the decision and its many implications.
Many news reports of the decision have focused either on its relation to the death penalty or on the Court’s rejection of the President’s claim of broad inherent constitutional power. This is unfortunate because it largely misses the real import of the decision, which relates to (1) when treaties are domestically enforceable in the absence of implementing legislation by Congress, and (2) the circumstances in which decisions by international adjudicative bodies such as the International Court of Justice (ICJ) are binding on domestic courts.
Here’s a brief run-down of what the case is about. The United States is party, along with 170 other nations, to the Vienna Convention on Consular Relations (VCCR), which says in part that any time a foreign national is arrested, that person has a right to consult with consular officials from his or her foreign consulate. The United States had also been a party (until it pulled out in 2005) to the Optional Protocol to the VCCR, which says that the ICJ can exercise jurisdiction in disputes relating to foreign nationals’ access to their consulates. Jose Ernesto Medellin is a Mexican national currently on death row in Texas after being convicted of murder. Medellin was not advised of his rights under the VCCR, and he did not raise objections to this violation until after he had been convicted at trial. The Texas court, as is typical in most US courts, did not allow Medellin to raise this complaint on appeal due to what’s called a “procedural default rule,” in which a claimant is generally considered to have defaulted on (i.e., forfeited) claims that are not raised in a timely manner. Medellin, along with 50 other similarly situated Mexican nationals, filed a complaint in the ICJ, arguing that the Texas court’s application of the procedural default rule in these cases was a violation of the VCCR. The ICJ, in the Case Concerning Avena and Other Mexican Nationals (Avena), agreed with this argument and held that Medellin was entitled to review and reconsideration of his conviction and sentence in Texas courts.
President Bush responded to this decision by walking a fine line. First, he argued that the ICJ’s Avena decision did not bind domestic courts. But at the same time, he issued an official memorandum to the Attorney General saying he would give Avena effect, and he argued that his memorandum was binding on domestic courts as a result of the President’s inherent constitutional power to conduct foreign affairs. Medellin then filed an application for writ of habeas corpus, relying on both the ICJ’s decision and the President’s memorandum. The case made its way up to the Supreme Court, and the Court was then confronted with two questions: (1) Is the ICJ’s Avena decision binding on domestic courts, and (2) Is the President’s memorandum binding on domestic courts?
There’s been plenty of commentary on the second question (which the Court answered, unsurprisingly, “no”), but it’s the first one that is probably of greater importance. The Court held that Article 94 of the UN Charter, which reads that each member party (of which, of course, the US is one) “undertakes to comply with the decision of the [ICJ] in any case to which it is a party,” does not mean that US courts are bound to follow ICJ decisions in cases to which the US is a party. The Chief Justice concedes that this means that the US is in violation of international law, but argues that for an ICJ decision to be binding on US courts, Congress must pass legislation making this as explicit as possible.
My initial reaction to hearing about this decision was fury. I’ve since backed off from that, but it’s still a disappointing decision. The Constitution explicitly makes treaties part of the “supreme law of the land.” It’s true that there has been a long-established distinction between self-executing treaties and non-self-executing treaties (being a non-self-executing treaty basically means that Congress must pass legislation implementing the treaty before it takes full legal effect). But if Article 94 does not impose an obligation on US courts, how exactly is it supposed to be enforced? As Justice Holmes famously declared, an unenforceable law is no law at all. If the Chief Justice first concedes that the US is violating international law, and then concludes that this international law is unenforceable without explicit congressional authorization, he is severely undercutting the credibility of the US’s commitment to respecting international law. If Congress and the President didn’t want to impose a legal obligation to comply with the ICJ, they either wouldn’t have voted to subject themselves to a treaty saying they would undertake to comply with the ICJ, or the Senate would have made its advice and consent contingent on implementing legislation (which it did not do).
One final note: While Justice Stevens’ heart seems to lie with the dissenters, he wrote an opinion concurring in the judgment but which strongly suggested that the Texas attorney general should commute Medellin’s death sentence. This, it appears, is nothing but wishful thinking, as the Texas attorney general announced after the Supreme Court handed down its opinion that he would be continuing to push for Medellin’s execution. Setting aside the implications regarding international law discussed above, it is important to recognize the degree to which the United States’ practice of the death penalty places us outside the norm of international practice, and the regularity with which it causes international tension and conflict.