Puerto Vallarta - Mexican Jurist

The Mexico Summer Law program I'm leading for a few weeks moves to the Jalisco port city of Puerto Vallarta, where our students will take a course on "Mexican Legal Institutions" from one of Mexico's leading law professors and jurists, Dr. Manuel Gonzalez-Oropeza (professor at National Autonomous University of Mexico (UNAM) and Justice on the Federal Electoral Court).

Puerto Vallarta is an appropriate site for the course - besides being a beautiful location on the sea, it is named for a preeminent Mexican jurist, Ignatio L. Vallarta, who served as president of Mexico's Supreme Court of Justice from 1878-1883. As quoted from the online abstract from the University of Texas TARO Ignatio L. Vallarta papers, "Vallarta held more power than ever as president of the court because the Constitution gave him executive power in the absence of the nation’s president, which equated the position to the vice-president of the Republic. He presided over the Supreme Court for five years as a strong constitutionalist and became famous for his votos as he worked to interpret strictly the Constitution of 1857. His book Votos de Vallarta recounts the decision-making process during his jurisdiction as he emphasized the points of constitutional rights in the cases brought before him."

Vallarta remains highly respected among modern-day Mexican professors and constitutionalists - he is one of only a couple or several Mexican jurists from whose opinions they will quote (another is the wunderkind Mariano Otero, who died at age 33 around 1850).

Government Role in Regulating Morality - U.S. and Mexico

I'm interested in a comment from a good friend and colleague here in Guadalajara regarding the current abortion controversy in Mexico. (Mexico City has recently moved to legalize some abortions - a big step in this country that's estimated to be 90% Catholic).



Anyway, she said, "We're really upset here - we look north and see the United States beginning to regulate moral values more, and Mexico seems to be doing so less, and we think the U.S. is heading the right direction and we're going wrong."



I have great respect for my friend, but I couldn't disagree more. It's not government's job or role to regulate morality - each individual's human dignity must be respected, and that includes allowing that person to make these sorts of decisions for him or herself.

Article in Louisiana Law Review

A month or so ago I wrote about the process for publishing academic articles, and now that we've gone through that drill for the current cycle I'm pleased to report my Essay "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Restrictions on Liberty Interests" will appear in the 2007-08 volume of the Louisiana Law Review.

Here's Essay abstract:

"This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately reflects the Constitution’s core Liberty-First ideals, while also recognizing the proper police-power role of government."

Click here for a link to the full essay.

Jimmy Carter - Bush Foreign Policy "Worst in History"

Did you happen to catch former President Jimmy Carter's comments about George W. Bush published in yesterday's Arkansas Democrat-Gazette? Carter said, "I think as far as the adverse impact on the nation around the world, this administration has been the worst in history."

Wow... dem's fighting words.

Carter explains, "The overt reversal of America’s basic values as expressed by previous administrations, including those of George H.W. Bush and Ronald Reagan and Richard Nixon and others, has been the most disturbing to me.... We now have endorsed the concept of pre-emptive war where we go to war with another nation militarily, even though our own security is not directly threatened, if we want to change the regime there or if we fear that some time in the future our security might be endangered.... But that’s been a radical departure from all previous administration policies.”

Ya gotta admire Carter for telling it like it is - and it IS the way it is, as more-and-more Americans are coming to realize. W is truly abominable - and the profound damage he and the Gang That Couldn't Shoot Straight have done to the nation will take a long time to repair.

Carter also had harsh words for Bush's lap-dog Tony Blair in an interview with BBC radio, characterizing Blair's support of Bush as “Abominable. Loyal. Blind. Apparently subservient.... I think the almost undeviating support by Great Britain for the ill-advised policies of President Bush in Iraq have been a major tragedy for the world."

Indeed.

Pope Benedict - Inserts Foot-in-Mouth on Conquest

Here in Mexico, where I'm spending a few weeks teaching in a study-abroad program, it's estimated that 90 percent of the population is Catholic.

So news of the Pope Benedict XVI's latest faux pas (in his two years at the Church's helm Benedict has shown a surprising propensity for inserting his foot in his mouth - remember last September's furor surrounding his comments on Mohammed's "evil and inhuman" teachings?), at the end of his visit to Brazil last week, is of more than passing interest here.

As reported by Reuters, Benedict commented in Brazil that the Church had not imposed itself on the indigenous peoples of the Americas, and that tribal Indians welcomed the arrival of European priests at the time of the Conquest - notwithstanding the millions of deaths to Latin America's indigenous peoples through slaughter, disease and enslavement at the hands of the Europeans - as they were 'silently longing' for Christianity.

Benedict's "arrogant and disrespectful" comments have prompted an uproar among many Indian leaders, politicians, human rights advocates, and even members of the Church in Latin America. "The Pope doesn't understand the reality of the Indians here, his statement was wrong and indefensible," Father Paulo Suess of the Church's own Indian advocacy group in Brazil told Reuters. "I too was upset."

Contrast Benedict's comments to those of Pope John Paul II, whose 1992 remarks on the mistakes of the Church's evangelization of native peoples - where priests regularly blessed conquistadors as they rampaged through the Americas, for example - were considered by many as an apology, prompting one tribal leader, Dionito Jose de Souza, to ask, "The state used the Church to do the dirty work in colonizing the Indians but they already asked forgiveness for that ... so is the Pope taking back the Church's word?"

Stay tuned.

Mexico - Academic Life

One of the (many) perks of academic life is the opportunity to situate oneself to teach in different places and work with many different really nice people around the world if that's something of interest. It certainly is to me, and in a dozen years in the biz I've had the good fortune to be able to teach in Mexico on numerous occasions, in Lithuania a couple times, Taiwan & China a few times, and pretty soon Australia.

Anyway I just arrived a couple days ago in Guadalajara to supervise MSU's 3-week Summer Law Program at the Universidad de Panamericana. Here are a couple shots, at the U.P. campus and the hotel, with these beautiful flowering jacaranda trees you see everywhere here.

Anyway, 3 weeks is a long time away from home and family, but there are worse ways to make a living. As a colleague says, it beats roofing in Texas....

Progressive Liberty & Natural Rights - Thomas Paine & "Rights of Man"

In my last entry I commented on Thomas Paine and how his 1776 sensation "Common Sense" gave voice to what historian Bernard Bailyn identified as the most basic goal of the American Revolutionary Era: "[to] free the individual from the oppressive misuse of power, [and] from the tyranny of the state.”

A decade and a half later, Paine's "Rights of Man," published in stages from 1791-94, elaborated on the theme (and along the way helped fuel the French Revolution), by stating the basic principle that “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.”

Explaining the circumstances under which man cedes some of his natural rights to the care of society and government (we may call those natural rights so entrusted as “civil” rights), Paine said:

"The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective…."

“[N]atural rights are the foundation of all his civil rights…., [and include] all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others."

"Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection…."

"He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”

"The natural right which he retains[, by contrast,] are all those in which the power to execute it is as perfect in the individual as the right itself….”


For a modern perspective on these progressive liberty ideas, Charles Fried says in his recent book, "Modern Liberty: And the Limits of Government" (a book on which I've blogged here previously):

“It is generally thought that we must have the state for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…."

Fried continues,

"It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around…. The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do...."

"[That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law."

Paine's and Fried's descriptions capture well the principles of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty.

These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).

Progressive Liberty Basics - Thomas Paine & "Common Sense"

In reflecting upon Liberty as the backbone principle of America's founding and constitutional framing, it's instructive to read again "Common Sense" and "Rights of Man," Thomas Paine's bombshell 1776 and 1791-94 works.

Historian Sidney Hook suggests Paine's philosophy "inspired two of the greatest revolutions in human history – the American Revolution and the French Revolution”; and fellow-historian Jack Fruchtman comments on "Common Sense's" impact in America: "[It was] the January heat of 1776 that balanced the July light of Thomas Jefferson’s Declaration of Independence.... George Washington, Thomas Jefferson, and many others praised it…. It might even be said that while Jefferson’s abstract diction justified rebellion, Paine’s explosive words got rebel men and muskets into the field.”

In plain language, Paine spoke of the relationship of government to the individual and vice-versa:

"Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…. Government, like dress, is the badge of lost innocence."

"In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest, they well then represent the first peopling of any country, or of the world. In this natural liberty, society will be their first thought. A thousand motives will excite them thereto, the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same…."

"Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which, would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but heaven is impregnable to vice, it will unavoidably happen, that … they will begin to relax in their duty and attachment to each other; and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue…."

"Then, as populations increase and become more dispersed, a just government naturally evolves from pure democracy into a representative republic, with frequent elections to maintain accountability."

So, in Paine's description, government is necessary to protect humans from themselves, in order to protect the preeminent value: liberty.

This notion of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty - is the very sentiment expressed by James Madison in The Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).

Jefferson & Hamilton - slavery

One of the most disappointing things about America's Founders and Framers is that they were so... well, imperfect. We want our heroes to be the stuff of myth, dispensing their Zeusian wisdom on high from Mt. Olympus, so it's hard to get past the fact that Jefferson - he of "inalienable rights" and "all men are created equal" - Madison, and others of their peers and colleagues, were slaveowners.

I lurk on a listserv for constitutional law and political science profs, and recently there've been some illuminating exchanges on this point; in particular, comparing Thomas Jefferson and Alexander Hamilton.

A number are highly critical of Jefferson for his hypocricy on the slavery question. Professor Sean Wilson from Penn State comments, for example, "I think [Jefferson's] opposition to the Missouri Compromise later in life (wanting slavery to expand everywhere), his non-opposition to voluntary emancipation in Virginia, and his opposition to the slave trade can be further understood in terms of his racism. Virginia had an excess supply of slaves, so all of these efforts would encourage fewer Americans of African descent to live in Virginia. He talked about the need to have "diffusion" before slavery might be outlawed (which is code for not having too many people around you)...."

Professor Paul Finkelman of Albany Law School says that when he began his extensive work on Jefferson, he "expected to take [a favorable] position.... I had read books about Jefferson and assumed he was a moderately antislavery man, caught up in his world. I then read almost everything Jefferson has ever written on slavery and came to a very different conclusion. I have looked very carefully at his life and his treatment of his slaves. It is not a very pretty picture. His statements are very dishonest."

"[For example,] in Notes on the State of Virignia he makes it clear that they are not his 'moral equal.' He argues that they do not love like white people, they have not skill, they are in effect genetically inferior to whites. He compares them to Roman slaves, noting the many successes of Roman Slaves, and then goes on to note that Roman slaves were "white." In the Notes, written in 1783, he seems pretty certain that blacks are naturally inferior to whites in all ways. Other southerners argue the same thing. They also are already arguing that the Bible supports slavery in general and black slavery in particular.... Indeed, Jefferson's Declaration forces Jefferson and others to assert and develop a "scientific" racism to support slavery since otherwise the logic of the Declaration would be emancipation. Jefferson opposed emancipation his whole life, even telling friends not to free their slaves (they were "pests" "on society" he argued)."

Hamilton, by contrast, comes off much more favorably. Professor Matthew Holden from Virginia comments, "Hamilton supported the proposal of Laurens of South Carolina to free African slaves and arm them to fight the British, [stating,] 'The contempt we have been taught to entertain for the blacks makes us fancy many things that are founded neither in reason nor experience, and unwillingness to part with property of so valuable a kind will furnish a thousand arguments to show the impracticability or pernicious tendency of a scheme which requires such a sacrifice.'"

Professor Wilson adds, "(a) Hamilton saw the evils of slavery in St. Croy [sic] and the west indies fairly early in life; (b) Hamilton knew that a single-cash crop economy was an inferior economic model that was actually, in the long term, retarding the South's development into an industrial and manufacturing economy; (c) Hamilton appears to have been against both slavery and discrimination; (d) Hamilton never favored "repatriation;" and (e) both he and his wife were committed abolitionists throughout their own lives."

In comparing the two men, Finkelman concludes, "there is a huge difference between someone who "condemns" slavery -- that is says it might be wrong in the abstract, or that it is bad policy, or that it harms white people (that are Jefferson's points) and someone who actually does something about it in either is professional, public, or personal life. A number of men of the revolutionary era freed their own slaves either in their lifetime or at their death. Others, like Judge St. George Tucker, proposed ways of ending slavery. Jefferson did none of this."

All of that said, Professor Michael Curtis from Wake Forest suggests we should acknowledge the individual failings but look also at the larger contributions: "The 'poetic exaggeration' of the Declaration was a force for good--whatever the failings of the man who wrote it and the others who endorsed it. It helped to expand suffrage to the poor, to support freedom for the slave, to expand suffrage to women, to support civil rights for blacks and others, and to further equal rights for women. You can see its influence, I think, in section 1 of the 14th Amendment. Not a bad list of contributions for a 'poetic exaggeration.' It was, as Lincoln saw, an ideal--never fully attained but something to strive for. So Lincoln denied that the ideals of the Declaration could or should be degraded by the fact many of the framers did not live up to its ideals or to the practices they engaged in in 1776."

Books of the Times - cont'd

More from "Rendezvous with Destiny," the history of reform during the post-Civil War period through 1950 by Eric F. Goldman (winner of the Bancroft Prize for distinguished American History in 1952) I blogged on last week....

Some additional nuggets and gems in the pages of this book include Goldman's descriptions of a couple books during the late nineteenth-century that were enormously influential to the course of American history, but that are all but forgotten today.

Goldman gives a couple examples - first, Henry George, whose book "Progress and Poverty" caught the angry mood of the 1870s:

"'Progress and Poverty,' published in 1879, was not out a year before its author was a national figure. Across the country, farmers squinted over the book's fine print. 'Tens of thousands of industrial laborers,' the economist Richard Ely note, 'have read 'Progress and Poverty' who never before looked between the covers of an economics book.' Troubled Americans who were neither factory hands nor farmers helped make 'Progress and Poverty' one of the ten or so most widely selling non-fiction works in the history of the United States."

"The young man who had wanted so fervently and had been stopped so often, with his moving arraignment of his times, his warning that America was moving down the weary road of Europe [with its stratified classes], his summons to recreate opportunity, had caught the mood with which thousands of Americans left the depression of 1873."

This is fascinating to me.... We read the recent and current histories - and that's all well and good - but we lose an awful lot if we fail to go back and dig deeper into what people were really responding to at the time.

Books of the Times

One thing I like about used book sales is the totally random nature of the sort of books one will find. A few weeks ago I picked up a dozen or so books at the East Lansing library used book sale (for the grand sum of about $10.00 - another thing I like about used book sales!), and among the non-fiction I found were older works on FDR & Eleanor, Theodore Roosevelt, Churchill, etc. ... and something called "Rendezvous With Destiny," a 1952 account of the history of American reform from the post-Civil War period through 1950 by Eric F. Goldman.

Well, I've never heard of the book (due in part to deficiencies in my own education I'm sure), but in its day it was extremely well-regarded, winning the Bancroft Prize for distinguished American History in 1952, with blurbs from, among others, Arthur Schlesinger, Jr.

Goldman talks about the history of reform - first, the "liberals" like Democrats Samuel Tilden (the Democratic loser in the 1876 presidential election to Republican Rutherford Hayes - interesting because it was such a close race that it was thrown into the House of Representatives, with Democrats (mostly feom the South) agreeing to support the Republicans' (mostly from the North) candidate in return for the Republicans agreeing to end the post-Civil War Reconstruction and remove federal troops from the South) against the common-man (and all-too-corrupt) Ulysses S. Grant regime; to the increasing dissatisfactions among the masses about the industrialization of the 1880s leading to ever-greater disparities in wealth, epitomized by disgust - leading eventually to the reform-minded Populist movement of the 1890s - with leaders like President Grover Cleveland, who vetoed an appropriation by Congress of $10,000 to aid drought sufferers in buying new grain seed, declaring that "though the people support the Government the Government should not support the people."

Say what? The government doesn't support the people; rather the people support the government? What a crock of s***. As Goldman says, "[Cleveland's statement] was a perfect statement of liberal doctrine, and a perfect illustration why liberalism seemed irrelevant or downright evil to thousands who were quite sure that, even if the government should not help support them, it should certainly help them support themselves."

Anyway, great stuff ... and all in a book published 55 years ago that is no longer on the tip of peoples' tongues, but still contains nuggets and gems on every page.

May Day - here and in China

Here in the U.S., May 1st, May Day, is pretty much like any other 1st day of a month; but in China, where I spent six months two years ago in Beijing as a Fulbright Scholar, May Day is one of the big holidays of the year. In celebration of May Day, or International Labor Day, all Chinese workers get the day - and week - off. (Here's a picture from Tiananmen Square on May Day 2005.)

As such, it is one of three official "vacation weeks" - the others being Spring Festival, celebrating Chinese New Year, falling usually in February or late January; and the October holiday celebrating the revolution and creation of the People's Republic in October 1949.

Imagine an entire nation of over 1 billion people on vacation simultaneously - many trying to travel here and there - and you get an idea of the massive logistical challenges of these weeks.

The common, mandated vacation weeks are an example of the official conformity that has existed in China at least since 1949 (another is that all of China - 3000 miles east to west - is on the same (Beijing) time, instead of different time zones) but, the times they are a-changing, as they say.

China is communist in name, but its leaders have demonstrated they're perfectly willing to adopt aspects of capitalism if it helps them maintain their grip on power - and so they have. I expect we'll see this 3-week common vacation practice fall by the wayside as well in the coming years.