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).
Tuesday, May 29, 2007
Friday, May 25, 2007
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.
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.
Sunday, May 20, 2007
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.
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.
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.
Thursday, May 17, 2007
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.
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.
Tuesday, May 15, 2007
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....
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....
Sunday, May 13, 2007
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).
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).
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