Together with healthcare reform and energy policy, one of President Obama's highest long-term priorities (aside from dealing with the current economic woes) is education reform. When we see such figures as those showing the U.S. in the bottom half of industrialized nations in math & science proficiency, etc., we must conclude that schools simply are not doing a good enough job.
In his "Harlem Miracle" column in today's New York Times, David Brooks offers a view of how we can begin to make truly meaningful change. He describes a charter school program in Harlem that has achieved breathtaking improvements, leading the Harvard economist Roland Fryer, upon examining the data, to comment, “The attached study has changed my life as a scientist.”
Fryer and a colleague undertook an in-depth assessment of the charter schools operated by the Harlem Children’s Zone, and found that "the Harlem Children’s Zone schools produced 'enormous' gains. The typical student entered the charter middle school, Promise Academy, in sixth grade and scored in the 39th percentile among New York City students in math. By the eighth grade, the typical student in the school was in the 74th percentile. The typical student entered the school scoring in the 39th percentile in English Language Arts (verbal ability). By eighth grade, the typical student was in the 53rd percentile."
"Forgive some academic jargon," Brooks continues, "but the most common education reform ideas — reducing class size, raising teacher pay, enrolling kids in Head Start — produce gains of about 0.1 or 0.2 or 0.3 standard deviations. If you study policy, those are the sorts of improvements you live with every day. Promise Academy produced gains of 1.3 and 1.4 standard deviations. That’s off the charts. In math, Promise Academy eliminated the achievement gap between its black students and the city average for white students.
"Let me repeat that. It eliminated the black-white achievement gap. 'The results changed my life as a researcher because I am no longer interested in marginal changes,' Fryer wrote in a subsequent e-mail. What Geoffrey Canada, Harlem Children’s Zone’s founder and president, has done is 'the equivalent of curing cancer for these kids. It’s amazing. It should be celebrated. But it almost doesn’t matter if we stop there. We don’t have a way to replicate his cure, and we need one since so many of our kids are dying — literally and figuratively.'"
So what is it that the Harlem Promise Academy does to achieve these sorts of jawdropping results? Basically, Promise Academy is a no excuses school. Brooks explains, "The basic theory is that middle-class kids enter adolescence with certain working models in their heads: what I can achieve; how to control impulses; how to work hard. Many kids from poorer, disorganized homes don’t have these internalized models. The schools create a disciplined, orderly and demanding counterculture to inculcate middle-class values....
"Basically, the no excuses schools pay meticulous attention to behavior and attitudes. They teach students how to look at the person who is talking, how to shake hands. These schools are academically rigorous and college-focused. Promise Academy students who are performing below grade level spent twice as much time in school as other students in New York City. Students who are performing at grade level spend 50 percent more time in school.
:They also smash the normal bureaucratic strictures that bind leaders in regular schools. Promise Academy went through a tumultuous period as Canada searched for the right teachers. Nearly half of the teachers did not return for the 2005-2006 school year. A third didn’t return for the 2006-2007 year. Assessments are rigorous. Standardized tests are woven into the fabric of school life.
"The approach works. Ever since welfare reform, we have had success with intrusive government programs that combine paternalistic leadership, sufficient funding and a ferocious commitment to traditional, middle-class values. We may have found a remedy for the achievement gap. Which city is going to take up the challenge? Omaha? Chicago? Yours?"
Inspiring stuff.
Friday, May 8, 2009
Monday, May 4, 2009
Obama's First 100 Days - Reclaiming the Constitution*
If James Madison and Alexander Hamilton, signers of the Constitution and primary authors of the Federalist Papers (the indispensable work of 85 essays which Thomas Jefferson described as “the best commentary on the principles of government which has ever been written”), were magically able to transport themselves 222 years forward in time to the present day, they would find a lot to like about President Barack Obama’s first 100 days in office.
Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.
First, Hamilton and Madison would admire Obama’s ambitious – even audacious - domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.
Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
Finally, Madison and Hamilton would approve of Obama’s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people.” “[T]he power of the people,” Hamilton added in No. 78, “is superior to [that of government].”
Immortal words that President Barack Obama, the former constitutional law professor, understands well.
* This entry also appears on the Constitutional Accountability Center's blog, Text & History.
Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.
First, Hamilton and Madison would admire Obama’s ambitious – even audacious - domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.
Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
Finally, Madison and Hamilton would approve of Obama’s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people.” “[T]he power of the people,” Hamilton added in No. 78, “is superior to [that of government].”
Immortal words that President Barack Obama, the former constitutional law professor, understands well.
* This entry also appears on the Constitutional Accountability Center's blog, Text & History.
Tuesday, April 21, 2009
Nordyke - Incorporation of the Second Amendment to Apply to the States
Most, but not all, of the Bill of Rights have been held by the U.S. Supreme Court to apply to the states through the doctrine of "selective incorporation" under the 14th amendment due process clause. As I've argued here previously, it is improper that not ALL of the Bill of Rights have been applied to the states through the 14th amendment privileges or immunities clause ever since the amendment's 1868 ratification, since that was in fact the clearly-stated intent of the framers of the 14th amendment.
Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):
"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."
For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.
Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.
Stay tuned!
Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):
"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."
For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.
Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.
Stay tuned!
Thursday, April 9, 2009
Obama and the Muslim World
What a welcome change to have a U.S. president who engages the world, rather than try to bully it. President Obama's recent trip to the G-20 conference, after which he made a stop in Turkey to engage the Muslim world, demonstrates true cooperative leadership that is bound to reap much greater long-term rewards.
The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'
"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'
"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."
MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.
"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.
"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'
"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.
"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'
Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.
What a welcome change, indeed.
The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'
"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'
"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."
MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.
"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.
"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'
"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.
"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'
Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.
What a welcome change, indeed.
Same-Sex Marriage Gains - Iowa, DC and Vermont
Within the last week we've seen three more important steps toward the inevitable: national recognition that same-sex marriage is a constitutional right (or, more specifically, that any statutory differentiations based on sexual orientation for allowing people to enjoy the state-sanctioned benefits of marriage violate the fourteenth-amendment equal protection clause).
Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)
With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.
It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.
Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)
With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.
It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.
Wednesday, April 1, 2009
Information Overload
As I find myself some weeks spending not as much time with the newspaper, switching from NPR or other news sources to the local jazz station, or consciously avoiding lengthy discussions with others about current events, Kathleen Parker's column in today's Washington Post strikes a chord.
In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"
"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "
Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....
"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....
"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.
"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."
Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).
In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"
"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "
Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....
"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....
"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.
"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."
Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).
Saturday, March 14, 2009
Ginsburg: Opening Soon on Supreme Court; Qualities of the Next Justice
With Justice Ruth Bader Ginsburg’s veiled hint yesterday of an impending vacancy on the U.S. Supreme Court, speculation about the necessary qualities of the next Justice will now begin in earnest.
By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)
Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.
James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In principle, judges and scholars from across the political spectrum agree on these basics. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”
In practice, however, conservative ideology has latched onto the idea that the use of "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.
When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.
So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.
By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)
Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.
James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In principle, judges and scholars from across the political spectrum agree on these basics. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”
In practice, however, conservative ideology has latched onto the idea that the use of "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.
When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.
So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.
Subscribe to:
Posts (Atom)