On Liberty - Ninth Amendment

After covering the Supreme Court's landmark 1965 Griswold v. Connecticut case (striking down a state statute forbidding the use and provision of contraceptives to married persons on the grounds that the statute infringes a constitutional right of privacy) in class yesterday, it's worth commenting upon Justice Goldberg's concurring opinion. Goldberg's opinion (alas, only concurring, not majority) was really the most serious treatment of the Ninth Amendment in the Court's history, which is too bad, since it encapsulates well the Constitution's position on Liberty - a position that has been systematically minimized and contradicted throughout the nation's history.

The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

This is an inconvenient provision for those who prefer an approach that would only allow rights that are expressly named in the Constitution, and for those who favor a "government-first" approach that allows government to limit individual freedom virtually at will. For many generations in America, those in power, acting ultimately in the interests of perpetuating their (and their successors') grip on power, have ignored the Ninth Amendment, treating it, as Robert Bork famously said, as of little more consequence than an accidental "ink-blot on the page."

Goldberg got it right in Griswold though, stating, "The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold.... [A] judicial construction that [a] fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment...."

What then is a "fundamental right"? At root, it is, as Justice Brandeis said in another context, "the right to be let alone-the most comprehensive of rights and the right most valued by civilized men." J.S. Mill's "harm principle" is useful here: If individual conduct causes no harm to another, government simply has no business interfering with the conduct, and the Ninth Amendment guarantees the individual the right to be let alone.

In the 40 years since Griswold, the Ninth Amendment has received more interest in the academic literature, but still not really in the Supreme Court.

Until We the People, and our agents in the federal judiciary, take seriously the "Liberty-First" premise embodied in the Ninth Amendment, we'll just continue along our current path, foretold by Alexis de Tocqueville in his 1830 book "Democracy in America," where government "spreads a fine mesh of uniform, minute, and complex rules, through which not even the most original minds and most vigorous souls can poke their heads above the crowd…. Rather than tyrannize, [government] inhibits, represses, saps, stifles, and stultifies, and in the end reduc[ing the] nation to nothing but a flock of timid and industrious animals, with the government as its shepherd."

By: Michael Anthony Lawrence

Supreme Court Prognostication Tally: One-for-One

After the Supreme Court's Philip Morris USA v. Williams opinion last week, I'm one-for-one in my September 2006 prognostication of a handful (alas, only three ;)) of especially close Supreme Court cases for the year. In Philip Morris, the Court struck down an Oregon jury's $79 million punitive damages award against the cigarette manufacturer, holding 5-4 that the award was a taking of the company's property without due process.

Money on the remaining two not yet decided by the Court, in Gonzales v. Carhart, regarding the constitutionality of Congress’s Partial-Birth Abortion Ban Act of 2003, is for the Court to affirm the lower courts by a 5-4 vote and strike down the Partial-Birth Abortion Ban Act (this is close, though, and will depend on C.J. Roberts' position); and in Meredith v. Jefferson County Board of Education, regarding the constitutionality of a school districts' requirement that schools enroll between 15-50% African-American students, is for the Court to uphold the district's plan (this too is close, though, and will hinge on where Justices Kennedy, Alito and Roberts line up).

Stay tuned....

By: Michael Anthony Lawrence

MSU Spartans and March Madness

One of the nice things about living in a big college town is the excitement generated among the students and community when the athletic teams are going well. Here in East Lansing, this week's victories by the MSU mens' basketball team over #1 ranked Wisconsin and Indiana virtually assures the Spartans a bid into "March Madness," the NCAA tournament - imho the coolest sporting event of the entire year.

It is surprising, when you stop and think about it, how much importance we place on these kinds of things (a bunch of physical freaks, frankly, running around trying to put a ball in a basket more times than the other bunch while thousands cheer and groan their every move), but we've done so throughout human history so why should we be any different, I suppose. It does give one a sense of common enterprise and community, and it's nice to see the human side of these contests - overcoming adversity, dealing with disappointment, etc., etc. (On that point, the Detroit Tigers provided one of the great sports stories of the past year, making it to the World Series only three years removed from having one of the very worst records ever in Major League Baseball).

And it's all the better when you have decent folks like MSU's Tom Izzo involved - makes it much easier to get behind a team than when you have demagogues like the one who coached in Bloomington all those years (including when I was an undergrad there more years ago now than I care to remember).

By: Michael Anthony Lawrence

Al Qaeda Plans Worrisome

This business about al Qaeda reinforcing and gaining strength in Pakistan and Afghanistan and planning nuclear attacks in the United States sure is worrisome.... and further reason to be furious with Bush/Cheney & the Gang That Couldn't Shoot Straight for diverting attention to Iraq in the months following 9/11 to settle Poppy's old scores.

Insisting all the while with their campaign of fear that the War on Terror justifies unprecedented abridgements on human rights and the rule of law, it's now apparent the Gang has been asleep at the switch when it comes to addressing the true threats. By stretching America's military resources so thin and immeasurably damaging its credibility around the world in its vendetta against Saddam, it is supremely ironic that the Gang has in fact made the nation more susceptible to attack.

As I've said before, we wouldn't have believed all of this if we'd made it up seven years ago.... but sadly the Constitution lacks a realistic mechanism in impeachment to mercifully end what has to go down in history as one of the most damaging presidencies in American history.

By: Michael Anthony Lawrence

Canadian Supreme Court Gets it Right in Detainee Case

The Canadian Supreme Court got it right yesterday in its impressive unanimous vote to strike down a security law allowing the Canadian government to indefinitely detain foreign-born terrorism suspects without the opportunity for review or to view evidence, stating “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process.”

The disappointing truth is that it is impossible to imagine a similarly overwhelming majority of the U.S. Supreme Court today agreeing on such a bedrock principle of basic justice. The scary thing is we may no longer even have a simple majority - we'll have to wait and see how the Court handles the appeal from the Boumediene v. Bush and Odah v. United States cases, where the DC Circuit Court of Appeals earlier this week upheld the Military Commissions Act of 2006 stripping the federal courts of authority to hear habeas corpus petitions from prisoners being held indefinitely at Guantanamo Bay. The Court's decision last summer in the pre-Military Commission Act Hamdan case, ruling in favor of the Gitmo prisoners on statutory grounds, was only 5-3 (really 5-4 because the opinion reversed the Ct. of Appeals decision that had been written by Roberts when he was on the lower court). Who knows what the Court will do now that it must confront statutory support for what was formerly just an executive interpretation....

There was a time when America took the lead among nations in arguing in favor of human rights and individual liberties. But no more. Today all three branches of American government now concur in denying prisoners basic fundamental rights of habeas corpus and the right to see the evidence against them. Hard to believe.

By: Michael Anthony Lawrence

Favoring Impeachment

Favoring Impeachment
By: Michael Anthony Lawrence

With each passing day and new disclosure about the George W. Bush Administration’s m.o., Americans are becoming increasingly aware that the emperor wears no clothes.

As Butch and Sundance would say, Who are these guys? Answer: They are extremists - advocating a view of executive power that has never, from the Nation’s origins to today, been supported within the letter and spirit of the Constitution. The Constitution of the framers and founders and every generation since is one where the federal government’s powers are equally divided among three coequal branches. Early Americans knew first-hand about the oppressive tendencies of concentrated power, and they were determined to create a constitutional structure that would prevent the same.

This president does not subscribe to these basic separation-of-powers principles, believing instead that the executive is the preeminent instrument of government, and that the other branches should simply fall in line. This view is expressed in myriad ways, from his imperious go-it-alone approach in Iraq and his ultra-secretive War on Terror; to his aggressive use of signing statements in cherry-picking Acts of Congress; to the selective replacement of federal prosecutors who would deign to investigate his administration and the threats to prosecute reporters who would expose it; and to recent moves to further empower political appointees in federal agencies who will do a heckuva job in carrying out the president’s bidding.

This “long train of abuses and usurpations,” to borrow a phrase from the Declaration of Independence, goes on…, and on…, and on…, ad nauseum, resulting in immeasurable loss of international prestige and influence, plundering of the Nation’s economic and natural resources, and loss of many thousands of lives. Honestly folks, we would not have believed this if we had made it up six years ago.

What is to be done? While the “I” word has floated around the fringes of public discourse for awhile, garnering support from the likes of Rosie O’Donnell and Ramsey Clark, there is reason for a broader cross-section of mainstream America to support – indeed, to demand - the impeachment of George W. Bush. Pshaw!, you say - he has less than two years remaining in his term, he’s been effectively neutralized by the Democratic majority in Congress, Congress lacks the political will to take this up, impeachment is only reserved for extraordinary events…, and anyway, where’s the high crime or misdemeanor? (And the real kicker, and the reason why in practical terms I accept Bush can never be impeached, can be summed in two words: Dick Cheney - Bush's successor were he to be impeached and convicted.)

A “high crime” and/or “misdemeanor” is whatever the House of Representatives says it is. We learned in 1999 that a President lying under oath about having sex with a woman not his wife meets the test. As the “House of the People” has the sole constitutional power to impeach, we may conclude that “high crimes and misdemeanors” consists of conduct so unacceptable as to justify removing the president from office. And the laundry-list of unacceptable conduct by George W. Bush is extraordinary indeed.

Impeachment is not something to undertake lightly, and should be reserved for extraordinary circumstances. It serves as the constitutional equivalent to the parliamentary vote of no-confidence, providing a mechanism for the people to send a strong message – even beyond that available at the ballot box every four years – about what sorts of presidential behavior they ultimately regard as intolerable.

It is extraordinary when a president, as here, engages in a pattern of conduct that systematically betrays long-accepted basic constitutional principles. As Lewis H. Lapham suggests in support of impeachment in the January 2007 Harper’s Magazine, “[B]y holding up to the light the malfeasance, nonfeasance, and ‘all the other rot’ embedded in the character and conduct of the Bush Administration, we might discover what we mean by America the beautiful. Like it or not, and no matter how unpleasant or impolitic the proceedings, the spirit of the law doesn’t allow the luxury of fastidious silence or discreet abstention.” On this reasoning, it is Congress’s solemn duty to rebuke President Bush for his own long train of abuses and usurpations.

Michigan Court of Appeals Mistaken in Same-Sex Benefits Case

(This OpEd was written on Feb. 8, 2007.)

Michigan Court of Appeals Wrong in Same-Sex Benefits Case
By: Michael Anthony Lawrence*

Last week’s Michigan Court of Appeals decision that the 2004 amendment to the Michigan constitution banning same-sex marriage also forbids state government and universities from allowing health benefits for same-sex partners is deeply problematic, for it gives broad scope to an amendment that is fundamentally flawed in both process and substance.

First, the process by which the amendment became law was, and is, deeply flawed. As my colleague Glen Staszewski points out in a persuasive 2006 Wisconsin Law Review article, there can be little doubt that the leading proponents of this vaguely-worded amendment intentionally misled Michigan voters during the 2004 campaign when they “chastised the opposition for seeking to distract the electorate from the ‘real issue’ and claimed that ‘the proposal [would] not affect benefits offered to people living together or in same-sex relationships.’” Almost immediately after the election, however, many of these same proponents began insisting that the amendment would prohibit benefits to same-sex partners. Now, in interpreting the amendment to prohibit same-sex benefits, the Court of Appeals rewards and encourages the sort of egregious bait-and-switch tactics as occurred here.

An additional problem with the amendment which applies to all ballot initiatives, not just in Michigan but other states as well, is identified by noted constitutional theorist Erwin Chemerinsky of Duke Law School. In short, the Constitution’s Guaranty Clause requires Congress to “guarantee to every state in this Union a Republican form of Government.” The framers knew well the tendency of majorities to oppress unpopular minorities (Exhibit A: the Michigan amendment discriminating against same-sex couples), so they mandated that state lawmaking be accomplished through a representative process, where rough edges could be smoothed with the benefit of full debate and negotiation. The process of direct democracy as practiced in Michigan and elsewhere thus arguably violates the Guaranty Clause - although it is extraordinarily difficult to make this argument given the U.S. Supreme Court’s long-held position that Guaranty Clause questions are “political questions” reserved for Congress, and therefore beyond the scope of the federal courts’ jurisdiction.

Not so long ago courts routinely upheld laws prohibiting interracial marriage with such language as that of one Virginia court in 1959 which stated, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for interracial marriages. The fact that he separated the races shows that he did not intend for the races to mix.” These laws were of course later struck down by the U.S. Supreme Court in the landmark 1967 Loving v. Virginia case, but we see the unmistakable parallels in today’s laws across the United States banning gay marriage and otherwise discriminating against same-sex couples.

It can only be a matter of time before the U.S. Supreme Court strikes down these modern-day laws of intolerance as well, for, as it said in 1996, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate government interest.” Enlightened state courts in Massachusetts, New Jersey, Hawaii, and Vermont have already done so in interpreting their own constitutions in the last few years. We can only hope if the case is appealed that the Michigan Supreme Court will be similarly enlightened, and reverse the disappointingly narrow-minded holding of the Michigan Court of Appeals.


*Mr. Lawrence is a professor of law at Michigan State University College of Law.

Old (Sept 06): Preview of Supreme Court's 2006-07 Term

The U.S. Supreme Court’s 2006-2007 Term

By: Michael Anthony Lawrence (Professor, Michigan State University College of Law)

With the U.S. Supreme Court’s new composition now established with the addition last year of two new members, Chief Justice John Roberts and Associate Justice Samuel Alito, the upcoming 2006-07 Term will offer glimpses into how the Roberts Court will begin to position itself on a number of key issues.
In contrast to a year ago, when the Court heard oral arguments during the first week on one of the most important cases of the entire term, the constitutionality of Oregon’s “Death With Dignity Act,” there are no similarly high-profile cases in the early weeks this year. Things begin to heat up toward the end of October and early November, though.
In Philip Morris USA v. Williams, to be argued on October 31, the Court will consider whether the sheer reprehensibility of a defendant’s action can support the award of punitive damages that would otherwise exceed constitutional standards under the due process clause. In this case, the Oregon Supreme Court upheld a jury’s punitive damages award of $79 million to the wife of a long-time smoker who died of lung cancer, reasoning that the punishment was justified by the “extreme and outrageous circumstances” of Philip Morris’s “massive, continuous, near half-century scheme to defraud the plaintiff and many others.”
Humble prediction: Look for the Court to strike down the punitive damage award in Philip Morris USA. In two other cases within the last ten years, the Court has struck down large punitive damages awards in state courts on grounds that the awards deprived the defendants of their property without due process of law, in effect because the defendants could not have been on notice that their behavior, however bad, would result in such high damages in a single case. In the most recent case, State Farm Mutual Insurance Co. v. Campbell in 2003, the Court struck down a $145 million punitive damage award against State Farm, even though according to the Court the company had repeatedly falsified and withheld evidence in claim files, systematically engaged in tactics such as “unjustly attacking the character, reputation and credibility of claimants,” and deliberately crafted policies “to prey upon … the weakest of the herd - the elderly, the poor, and other consumers who are least knowledgeable about their rights and thus most vulnerable to trickery or deceit….” (Like a good neighbor, indeed.)

In another couple important cases, the Court will hear arguments on November 8 in Gonzales v. Carhart and Gonzales v. Planned Parenthood regarding the constitutionality of Congress’s Partial-Birth Abortion Ban Act of 2003. The lower federal courts of appeals struck down the Act in both of these cases, holding that the statute, by failing to include an exception to preserve the health of the mother, violated the constitutional standards previously set out by the Court in Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and most recently, Stenberg v. Carhart in 2000.

Humble prediction: The Court will affirm the lower courts by a 5-4 vote and properly strike down the Partial-Birth Abortion Ban Act. This is a very close call, though, and the case could easily swing the other way, depending on where Chief Justice Roberts comes down. The Court struck down a substantially similar state law by a 5-4 margin six years ago in Stenberg, so it would seem easy to predict a similar fate for this Act were it not for the uncertainty created with the addition of the two new Justices just last year. Assuming the seven remaining Justices hold their votes from Stenberg, Justice Alito very likely will replace the late Chief Justice Rehnquist’s dissenting vote; and there is some reason to believe that Chief Justice Roberts, based on statements he made during his confirmation hearings, will replace Justice O’Connor’s majority vote. If he does not, however, and instead joins the Stenberg dissenters, these cases would represent a substantial step in the long-term conservative strategy, as laid out by Justice Alito in a mid-1980s memorandum, to attack Roe v. Wade with a “death by a thousand cuts” strategy rather than seeking an outright reversal.

Finally, later in November or early December the Court will hear arguments in Meredith v. Jefferson County Board of Education whether a public school district in Louisville, Kentucky violates the Equal Protection Clause with its requirement that all schools within the district seek a black student enrollment of not less than 15% and no more than 50%.

This case is intriguing, because public schools in Louisville, like most public schools throughout the South, were historically virtually entirely segregated until the Court ordered in Brown v. Board of Education in 1954 that all public schools be desegregated.
Thereafter, the school district in Louisville was supervised for decades by a federal district court decree in its desegregation efforts. Fast-forward now to 2006, where, ironically, the district’s efforts to maintain desegregated schools are now themselves being challenged as violating equal protection.

Humble prediction. The Court will uphold the district’s plan in Meredith. The outcome will hinge upon whether the Court believes the means adopted by the district are sufficiently narrowly-tailored to meet a compelling government interest. Because the Court has recently held in Grutter v. Bollinger and Gratz v. Bollinger in 2003 that diversity in the educational environment is a compelling government interest, and because the 15-50% target range is likely flexible enough not to constitute a forbidden “quota,” the Court likely will uphold the plan.

Old (Feb.1,2006): Why Justices' Constitutional Philosophies Matter

Why Justices’ Constitutional Philosophies Matter

By: Michael Anthony Lawrence

With Joseph Alito’s confirmation to the U.S. Supreme Court, it is appropriate to take a moment to reflect upon why all Americans - Republicans, Democrats, Libertarians, Socialists, Greens, Blues, and Reds alike - should care deeply about the constitutional philosophies of the men and women who sit on the Supreme Court.

Like Achilles of Greek myth, the U.S. Constitution is strong yet vulnerable. The Constitution’s vulnerability derives, ironically, from the source of its greatest strength -the power of the Supreme Court to strike down the unconstitutional actions of the legislative and executive branches.

The Constitution’s vulnerability is dangerously exposed when the Court fails to exercise this judicial power to rein-in the excesses of the executive and legislative branches, because there is simply no other institution left to protect individual and minority rights. Occasionally the Court has so failed, as it did during World War I when it upheld vast legislative prohibitions on speech; or during World War II when it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans, but our history would look quite different if the Court had not eventually come back around in these instances and others to the position that the Court needs to check the power of the democratically-elected executive and legislature.

Some jurists and scholars protest that judicial “activism” is undemocratic and inappropriate. These arguments ignore the fact that the broad judicial power to correct majoritarian excesses is precisely how the founders originally envisioned the Court’s role in the constitutional design. As James Madison said (as urged by his friend Thomas Jefferson) on June 8, 1789 in asking the First Congress to adopt the Bill of Rights, “one [needs] to control the majority from those acts to which they might be otherwise inclined… independent tribunals of justice will consider themselves in a peculiar manner … [to] be an impenetrable barrier against every assumption of power in the legislative or executive [branch]; they will be naturally led to resist every encroachment upon rights….”

So as we see increasing numbers of Supreme Court jurists whose constitutional philosophies provide for a very powerful “unitary” executive with little judicial interference, there is justifiable cause for concern. This concern is far from arcane – at the extreme, an unchecked executive can lead to excesses of the sort that occurred in Germany in the 1930s and 40s. Hitler himself came to power, after all, through popular acceptance of the ideas of German jurists like Carl Schmitt, who argued in the 1920s and 30s that Article 48 of the German Constitution “conferred an unlimited authority in the executive as ‘protector of the Constitution’ to suspend the Constitution during a state of emergency, as long as he restored the Constitution when the emergency ended.”

In short, the U.S. Supreme Court as newly-composed must not shrink from fulfilling its crucial - yes, active - historic role of critically reviewing the actions of the executive and striking them down where necessary.

Old (Jan.18,2006): The Supreme Court's Schizophrenic "New Federalism"

(This OpEd was written on Jan. 18, 2006)

The Supreme Court’s Schizophrenic “New Federalism”

By: Michael Anthony Lawrence

From the standpoint of allowing states to provide heightened protection for citizens’ individual liberties beyond that required by the U.S. Constitution, it’s been a decidedly mixed year in the U.S. Supreme Court.

The Court got it right in yesterday’s Gonzalez v. Oregon decision, in which it upheld the Oregon Death With Dignity Act of 1998, which provides Oregon citizens greater freedom of choice in making difficult end-of-life decisions, from being overridden by the federal Controlled Substances Act, thereby redeeming itself somewhat from the Gonzalez v. Raich decision handed down last term (June 2005). In Raich the Court allowed the Controlled Substances Act to supersede another state law, the California Compassionate Use Act of 1996, which provided greater freedom to state citizens to cultivate and use marijuana for personal medical purposes on the advice of a physician. Both cases involved appeals by the Bush Administration of decisions from the lower federal court, the Ninth Circuit Court of Appeals, upholding the primacy of the state laws.

The decisions involve the constitutional authority of states to determine for themselves policy matters traditionally left to the states – specifically, the regulation of medical care. In a nutshell, under the American system of government the federal Constitution describes the base level of protection that all government – federal, state, and local – must provide to We the People. The judiciary (ultimately the Supreme Court) enforces this constitutional floor on the various other branches and levels of government with its power of judicial review. Congress, for its part, operates only pursuant to limited powers enumerated in the Constitution (which does include, in fact, the interstate commerce power to regulate the interstate traffic of drugs under the Controlled Substances Act, the federal statute at issue in the Raich and Oregon cases). Balanced against this limited federal power is the broad residual sovereign power of the states to regulate all other matters, as guaranteed by the tenth amendment.

A much-lauded feature of this constitutional design of dual sovereigns is that it provides the potential for greater protection of freedom for the individual by providing the opportunity for each state, as Justice Brandeis explained over 70 years ago, to “serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” The point here (again) is that states are always free to grant their citizens greater measures of freedom and liberty than the baseline required by the federal Constitution; never, however, may states grant them less freedom.

And yet the Bush Administration – it of the supposed politically conservative bent – did not hesitate in these cases to betray the traditional conservative principle of states’ rights in favor of its deeper agenda of pushing on others its own set of fundamentalist Christian moral views, including its “reefer madness” paranoia about marijuana (to be fair, the Clinton Administration was similarly paranoid) and its stance on limiting individual autonomy on compassionate end-of-life decisionmaking. Make no mistake about it – the Bush administration did not need to bring these cases to the Supreme Court. They both involved an aggressive, bordering on unnatural, reading of the federal Controlled Substances Act. If the Administration were truly committed to the traditional conservative ideal of preserving states’ rights, it would have left well enough alone and not challenged the prerogative of the sovereign governments to make policy on matters traditionally reserved for state authority such as regulation of medical care.

The Court properly resisted the Bush Administration’s arguments in Oregon, but got it wrong in Raich by electing instead to return to an approach favoring an overly-paternalistic federal government operating at the expense of states’ rights (to be sure, there are times when such an approach is necessary, such as to enforce federal civil rights or environmental legislation against reluctant states - but Oregon and Raich are a far cry from those). Make no mistake about this as well – while the Court decided Raich on valid constitutional grounds, it just as easily could justifiably have upheld the lower court’s understanding of the limits of the federal power.

At the end of the Court’s term, then, we are left with a sense of uncertainty about the vitality of the Supreme Court’s vaunted “New Federalism.” Over the course of some years the Court seems to have been moving in a direction of giving states greater respect under the constitutional scheme to operate independently in furtherance of providing additional protections for individual citizens, but now we cannot be so sure of the depth of this commitment.

Old (Jan.10, 2006): President's Domestic Wiretapping Violates Constitution

President’s Eavesdropping Order Violates Constitution

by: Michael Anthony Lawrence

Discussions surrounding the still-bubbling controversy about the President’s post-9/11 decision to allow secret domestic eavesdropping on American citizens – including last Friday’s report from the non-partisan Congressional Research Service stating that Bush's decision was not “well grounded” in the law - brings to mind a comment made by Chief Justice John Roberts during his confirmation hearings last September. Asked if he adhered to a view of the Court as Congress’s taskmaster, then-nominee Roberts responded, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.”
Justice Roberts’ comment nicely captures the axiomatic essence of the political theory underlying this Nation’s system of government (and one that clearly escapes the President and his handlers): It is the Constitution – not Congress, not the Executive, not even the Judiciary – that establishes the baseline conduct to which government must faithfully adhere. It is the Constitution, in other words, that is sovereign; and nothing any official in any branch of government tries to say (current Presidential hubris notwithstanding) can change the underlying core proposition that government, in the conduct of its official duties, simply may not ignore basic constitutional guarantees - here, of individual liberty and freedom from unreasonable governmental intrusion – not even during times of national emergency.

Think of it like this: if your neighbor tried to give away your house, you’d be legally justified to prevent this from occurring – the house simply is not the neighbor’s to give away. Similarly, constitutional protections of individual liberties simply are not the President’s or Congress’s – or the Court’s - to give away.

True enough, there are limited circumstances where the President and Congress may regulate (but not remove outright) an individual’s constitutionally-protected liberties, but only when the government meets a heavy burden of showing its action both is no more intrusive than necessary and is pursuant to an extremely strong government interest.

In the current eavesdropping context, Congress recognized that the Constitution would prohibit highly discretionary governmental eavesdropping, and so required in the Foreign Intelligence Surveillance Act of 1978 (FISA) that the government obtain search warrants from a special secret court before conducting electronic surveillance of people suspected to be terrorists or spies.

By authorizing warrantless eavesdropping and ignoring FISA, President Bush exceeded his constitutional power. As Justice Jackson put it in a case fifty years ago striking down President Truman’s government seizure of private steel mills during the Korean War, “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.…”; whereas, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Here, Bush operated in a way incompatible with the expressed will of Congress, and his power was at its lowest ebb.

But the larger point is that even if Congress did somehow implicitly authorize warrantless searches in the wake of 9/11, as the President claims (and the nuances of this “he said, she said” dispute will surely be a large issue in the promised hearings questioning Attorney General Alberto Gonzales and others before the Senate Judiciary Committee early next month), this just means that Congress, in collaboration with the President, has acted unconstitutionally. It is one thing to say that government may impose limitations on individual liberties if it meets the substantial burdens required in a warrant; it is another, however, to grant the Executive unfettered discretion to spy on citizens free of any judicial oversight whatsoever. Moreover, it is no more acceptable for two branches of government acting in cooperation to violate the Constitution than it would be for one to do so acting alone.

In short, the Constitution is a taskmaster – and it is a stern taskmaster indeed. If we’ve learned anything from 217 years of experience with this Constitution, it’s that government frequently overreaches, and the Constitution steps in to bring the government back into line. So it shall be here as well. Any other result, allowing expansion of an all-powerful government at the expense of individual liberty, plays directly into the hands of the terrorists, and would itself amount to a victory for them.

Old (Oct 2005): Chinese Capitalism - Beijing 2005

(This article was written in October, 2005.)

Chinese Capitalism - Beijing 2005

By: Michael Anthony Lawrence*

The times they are a-changing in China, to the point where the Great Helmsman himself - Chairman Mao - would be spinning in his grave (or tomb, in fact) if he could see the shape his revolution takes, and the private enterprise it makes, in the 21st century.

The fact is that in the last several decades the Chinese have embraced capitalism with the zeal of converts. From the time of opening-up in 1979, when then-Communist Party Chairman Deng Xiaoping encouraged all Chinese people to become entrepreneurial and make money, there’s been no looking back. Now, hardly a week passes without descriptions and analyses in major national and international newspapers of China’s booming economy and its dramatic effects both inside and out of China.

The New York Times recently reported, for example, that this year alone, “Shanghai will complete more towers with space for living and working than there is space in all the office buildings in New York City” – a rate of development “on a scale we’ve never seen before,” according to experts at the London School of Economics. Shanghai’s more than 4,000 skyscrapers of 18 stories or higher already far exceed the number in New York.

This growth has some of the same downsides faced in the West during its eras of rapid industrialization and modernization - not the least of which is choking pollution in most large cities and elsewhere. The level of air quality on a “bad-air day” in Beijing, for example, would raise cries of alarm if it occurred in any American city, and China now has 7 of the world’s 10 most-polluted cities, according to the World Health Organization. Moreover, “China has spent much of the last decade demolishing millions of old homes and buildings and relocating tens of millions of people, many against their will,” according to the Times.

But from a quality-of-life standpoint for the individual Chinese citizen, it is a long way indeed from the Cultural Revolution of just thirty years ago where education was discouraged and often punished, and where a person could hardly frown without the Man cutting him/her back to size. The Cultural Revolution’s modus operandi was brought home on a personal level in a conversation with a like-aged Chinese faculty colleague, who upon graduation from high school was sent to the country for three years to be re-educated among working peasants; whereas my own typically American concerns at that age involved graduation parties, moving away to college, etc.

To be sure there are still many freedoms the Chinese people lack – free speech remains a dangerous enterprise – but from an individual economic perspective, the impact of China’s move to capitalism and the free market is nothing short of staggering, with vast improvements to the standard of living for hundreds of millions of people. (The very scale of China is almost incomprehensible – 1.3 billion of the earth’s 6 billion people in a geographic area half the size of the United States (the western half of China is relatively uninhabited), but with four times as many people.)

It’s no wonder that businesses salivate at the prospect of tapping this market – and they are tapping it. To give an idea, Starbucks C.E.O. Howard Shultz estimates that the number of Starbucks stores in China will soon exceed the number in the United States - no small feat given the ubiquitous presence of Starbucks’ green and white sea goddess in communities large and small across America. Indeed, one of the most jarring of personal impressions in this land of weird juxtapositionings of Confucius, Lao Tse and Yao Ming is passing from Tiananman Square under the mammoth picture of Chairman Mao Tse Tung and through the South gate, where Mao declared the revolutionary Peoples’ Republic of China in 1949, and coming upon, within the walls of the Forbidden City itself, – a Starbucks. Chairman Mao and Starbucks - who would’ve imagined….


* Professor Lawrence spent six months earlier this year on a Fulbright Scholarship at the University of International Business and Economics in Beijing.

Old (Mar.23,2005): Congress Out of Bounds on Schiavo Case

(This OpEd was written on March 23, 2005.)

To the editors:

There’s no getting around it - the United States Congress is out of control. Its current intervention in the Terri Schiavo case is only the latest example of how uncomprehending Congress is of the proper role of the legislative branch in our constitutional design; and of the proper role of government in general vis-à-vis the private individual.

Congress’s intervention is highly inappropriate. First, Florida state courts have determined repeatedly under the evidentiary standard enacted into law by the Florida state legislature (clear and convincing evidence) that Terri Schiavo would wish not to be maintained in a persistent vegetative state; second, the U.S. Supreme Court has recognized the fundamental right of individuals to avoid unwanted medical treatment. Congress, by interfering with what the courts and legislature of the sovereign state of Florida have determined in their efforts to respect an individual’s fundamental constitutional right, deeply offends the constitutionally-mandated balance of federal-state relations and separation of powers among the branches of the federal government.

More generally, Terri Schiavo has a natural right to determine how to live her life. It is not up to her husband, it is not up to her parents, and it is not up to the United States Congress - it is up to her, and to her alone. She decided she would not want to be artificially maintained in a persistent vegetative state, and her wish should be respected.

The sort of position being taken by Congress and the President in this and other cases would have been unthinkable through much of the nation’s history. The most basic concept among the founding generations for what this new nation of “America” was to stand for was the lofty principle that government of any sort simply lacks the authority – legal, moral, or otherwise - to interfere with individual liberty. The preeminence of this concept was recognized by Justice Louis Brandeis when he stated famously in 1928, “The makers of our Constitution … conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

In words that might have been penned directly in response to the actions of Congress and the President in this very instance, Justice Brandeis also cautioned, “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent…. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

We’ve come a long way in America since the founding, but unfortunately we’ve come in precisely the wrong direction on matters of individual liberty. One colleague puts it this way: “Instead of a land of individual liberty and … tolerance, America has become a land of public morality and intolerance, all without the benefit of constitutional amendment…. [and w]hile there is nothing wrong with having an opinion based upon one’s culture or religion, there is something wrong with imposing this opinion upon others in a pluralistic society founded upon individual liberty.” [Elizabeth Price Foley, Liberty for All: Privacy Versus Morality in the American Constitution (forthcoming, Yale Press)]

Congress’s actions in the Terri Schiavo case demonstrate yet again its utter lack of understanding of the core principle that government acts legitimately only insofar as it protects the individual’s “right to be let alone” as it does so. As a reminder to Congress, the President and other government officials of this axiom, Justice Brandeis’ “right to be let alone” opinion should be framed and placed in every federal and state building in the land - perhaps in place of the Ten Commandments.