Comparative Constitutional Law

D – 212-243

E – 274- 354

F – 365- 379, 379-384

G – 464-498, Skim 497-551

  • B/c of pub date of book, doesn’t include most recent US Supr Ct decision: STENBERG [sp?] (partial birth abortion act case)
  • When reading ROE and CASEY, what about them was striking/interesting? The way they discuss the issues:
    • role of medical ethics in ROE
    • me: role of history of abortion in ROE – why relevant?
    • me: role of public opinion (in ROE, reference at end of history to recent liberalization of state laws, 13, etc.)
      • similarly, the back-and-forth about public opinion in CASEY: majority saying it wd be esp. bad to depart from earlier decision under public pressure – Scalia saying: this shouldn’t be relevant at all, and putting thumb on the scales in favor of sticking by unpopular opinion is especially perverse, and in any case, ROE is not so popular…
      • (compare: reference to opinion poll in [Canadian?] dissent)
    • Opinion styles:
      • Blackmun’s conc. to CASEY – as though standing outside of the law, talking about the signif. of a decision the way newspaper might.
      • US opinions: in some respects, aspects very depersonalized: “We held…” “The Court…,” especially in decisions for the court – BUT also: a fairly striking personalization sometimes, especially dissents and concurrences.
        • e.g. Blackmun’s conc in CASEY “I’m 89 years old…”
        • e.g. Scalia’s dissent in CASEY? T: Scalia writing an opinion in a very particular style – one of its oddities: notwithstanding its evidently personal character, it’s joined by 3 other justices!
    • T: the doctrinal looseness of ROE.
      • e.g. 18: “whether you find right to privacy in 14th Amend [SDP] as we do, or in 9th Amendment… it’s still broad enough to encompass decision to terminate pregnancy”
        • T: 30 years on, more scholars wd probably be comfortable w/ a 9th Amendment formulation than with a 14th Amend formulation. Concern w/ latter: notion of “liberty” is too unbounded. Versus 9th: we cd perhaps give a better account of a more restrictive list of rights under the 9th Amend v. trying to give content to idea of “liberty” under 14th Amendment.
      • (note: CASEY dsn’t do much independent doctrinal analysis, b/c of emphasis on stare decisis – preserving the “core holding” of ROE)
      • Note also: the analytic – crucial passage in ROE is this passage p. 18: “This right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” T: For all practical purposes, no substantial explanation for why the right is broad enough, why this is true. (But once it’s broad enough, then the rest of the decision follows.)
      • Note: ROE is founded on “right to privacy” – v. Canadian decision is based in part on “bodily integrity” – is this a better explanation?
        • one of T’s favorite articles on ROE: Donald Regan’s – offering a physical, bodily description of changes that occur to a woman when pregnant: if you were reading this outside of pregnancy context, you’d think: it looks like an illness! rapid gain in weight, increase in blood pressure, etc.
    • T: one striking thing about US decisions, esp. v. German decisions: former’s treatment of the fetus. What ROE does is argue:
      • the state says that the fetus is a person entitled to protection under the 14th amendment
        • and our way of protecting the fetus is outlawing abortion
      • Blackmun says: that’s wrong – the fetus is not a person w/ in the meaning of the 14th A, all sorts of peculiar/bad conseq.s would follow: state would not only be allowed to have restrictive abortion laws, but would require it. + odd discussion of counting fetuses in the census…
      • and woman has right to privacy, etc.
      • Then Blackmun says: so what state interests are asserted to justify restrictions on that right? Interest in the potential life of the fetus. T: very peculiar formulation! The fetus is alive! Maybe you could say: the potential life of a post-natal human being.
      • T his point here: the treatment of the fetus in ROE doesn’t capture one thing that matters to a lot of people about abortion: that it involves the destruction of a thing that is a member of the human species. (This isn’t to say that ROE is wrong – just that there’s a fairly large gap – not quite an analytic gap, but a perceptual gap.)
      • If you look at the court’s internal documents, it’s quite clear at the time of ROE, nobody thought that choice/abortion would be a big issue – including the dissenters. Why that’s so might have something to do with the social stratum of the justices.
    • T: one impression of ROE among non-lawyers is: the statute-like character of the decision, esp. the summary at end, 23.
      • Contrast this w/ Canadian opinion, not very statute-like.
      • But the German solution is even more statute-like.
    • note: a lot of STENBERG is devoted to a description of the procedure outlawed by the partial birth abortion act
    • Tushnet: more “history” in CASEY than in ROE: in latter, it’s offered as background rather than justification. BUT: discussion in CASEY re: changing social norms / way that generations of Americans have structured their lives around the availability of abortion (“reliance interest”: we should not overrule if, among other things, there has been a significant amount of reliance on the prior decision) – this really is used to justify the decision.
      • T: characterizing this as “reliance” is unusual. Hard to see what would be disruptive if you change the rules of abortion here. It can’t be that people actually engaged in intercourse relying on the availability of abortion… (or even if plausible, wd only apply for very short period of time). This can’t be the idea. Rather, it’s that people have structured their lives around the relatively easy availability of abortion. Women have entered the paid workforce, etc., based on assumption of ready access to abortion if necessary. BUT: this isn’t really reliance, b/c when you change the rules, they can restructure their lives. [me: well, when put that way, maybe it is plausible – e.g., some number of women are in workforce right now who wouldn’t have taken that risk if the uncertainty re: a pregnancy were there?]
      • This also raises questions of evidence: how do they know that people have been structuring their lives in this way?
      • This also raises question: should judges be making decisions based on considerations like this?
  • Canadian case: MORGENTALER (1988)
    • A criminal prosecution of doctor for providing abortions. Note: 77: the gov’t is appealing here from an acquittal by a jury.
      • BG: Morgentaler is a public figure in Canada, an abortion rights crusader. Systematically opened abortion clinics in var. provinces. Here, he opened a clinic in Quebec and Toronto, was prosecuted, said: the statute’s unconstitutional – and I have a criminal law defense of “necessity.” He makes latter argument to the jury in both places, and it’s generally thought that jury acquits him in both cases b/c of this.
      • Then: the ground of the govt’s appeal is that he shdn’t have been allowed to use this necessity defense. Appellate court in both Quebec and Toronto says this is right. Quebec came first, made him start serving conviction immediately. He served about 6 mo.s, then legislature changed the law so that court couldn’t do this. So: in Toronto, they just remand for a new trial.
      • B/c he’s preserved his objections, he goes up to Supr Ct.
    • Note: T: the Canadian decision was the visible product of a reform movement.
      • Versus in US. There was an abortion law reform mvmnt, as Blackmun hints. But it’s not embodied/embedded in ROE.
      • One way of symbolizing that: Canadian decision has the name of abortion rights crusader in title; US decision has name of anonymous woman.
    • Note: Do differences in procedural posture behind cases affect outcomes?
      • Rem: ROE is an anonymous plaintiff seeking injunctive relief (declaratory judgment) to allow her to get an abortion
        • note: only 1 of the 30-40 post-ROE abortion cases Supr Ct has considered were criminal – and that was of a non-doctor – and Supr Ct said: yeah, you can prosecute him
      • and rem: GRISWOLD, it took over a decade to find a way to get over the justiciability hurdles – statute was prohibition on using contraceptives. Men tried to sue for declaratory relief. Finally, Planned Parenthood opened a clinic, then were arrested for aiding/abetting use of contraceptives. As in Morgentaler: required a crusader.
      • T: I don’t believe, but: it could be, people might think that judges would be more reluctant to find in favor of the government when actual jailtime is at stake – v. in more abstract setting. So maybe ct in Canada is indisposed to send M to jail.
      • T: The concreteness of the case might affect how the judges talk about the problem in front of them.
      • Another difference: ROE is prompted by a statute that says: no abortions; v.
    • What is the holding of the Canadian case?
      • There is a protected right to bodily integrity (78)
      • T: This right can be regulated by the govt if done in a fundamentally fair way – but this regulation isn’t fair (86), b/c it holds out a hope that you can get an abortion – but in practice (in the world as it operates), you can’t.
        • it’s like they’re lying to you!
        • the world is organized so that you can never satisfy these conditions: there aren’t enough of these committees at hospitals where these abortions would be performed
        • T: a procedural ruling: in the sense of, the Canadian justices, taken as a group, acknowledge the existence of the interest of the fetus, and say that the Canadian Parl can enact legislation that is an appropriate accomodation of the interest in bodily integrity and the interest of the fetus – BUT, this particular statute, b/c of the way it’s implemented, is not an appropriate accomodation
      • T: Given all of this, what kind of statute wd you urge the Canadian Parl to draft? Legislature could respond w/ a relatively restrictive abortion law. (Not true in US: essentially no ability for legislature to respond w/ substantial restrictions.)
      • After MORGENTALER:
        • Canadian Parl (conservative gov’t in power at the time) tried to draft law (the person in charge of the relevant ministry introduced legislation into Parl, but it wasn’t introduced as gov’t bill – thus a free vote, no party discipline, members of party cd vote their conscience),
        • passed lower house,
        • was struck down by Senate in tie vote (controversial: Senate rarely if ever exercise any indep. authority; entirely appointed body; no one thinks it has any democratic legitimacy, does nothing) –
        • so, basically, have no criminal abortion regulation on the books at all
  • So: differences on the surface btw US and Canadian decision:
    • Procedural
    • Substantive
    • BUT: on the ground, no diff.s btw getting abortion in US and Canada; or even more available in Canada, where theoretically it could be largely banned.
  • How are US and Canadian decisions presented differently?
    • Canada and UK (House of Lords – which will soon be converted into a Supreme Court) has (seriatum?) judgments (one judge after another), while US Supr Ct has judgments “by the court” (per curiam)
      • until Marshall, US Supr Ct judgments were seriatum as well: based on theory that if we speak as insitutionalized court, they’ll receive greater respect than if seen by public as just the decisions of individuals, even if they all agreed
      • Marshall also worked very hard to suppress dissents
    • Q: does seriatum really have delegitimizing effect?
    • ALSO: in seriatum decisions, often hard to tell what the actual rationale of the judgment is.
      • Note: this leads to incredibly robust literature in Commonwealth countries trying to distinguish between: ratio dicidendi [sp?] (what all five judges agreed on) v. dicta
      • v. this literature is incredibly weak in the US
    • T: Speaking in one voice may be institutionally valuable.
      • Consider: French Const. Council: dissents are prohibited (actually illegal for a judge to dissent in France.) (Was the case in Germany too, tho they have now changed the law.) (In fact, in France, illegal for you to say in any venue that there were people who disagreed with the judgment of the court.)
      • The reason was that the judge was the mouth of the law: it wasn’t the judge speaking, but the law. And if there’s dissent, then it looks like: it’s just the judge, not the law.
      • Some say: this flows from civil law system – it’s supposed to be exhaustive. Code just answers all questions.
        • but… no reasonably sophisticated code lawyer thinks that’s accurate descrip. of decisionmaking in code system
  • T: in the lit on comp law generally, a very unproductive discussion of whether comparativists should look more for similarities or differences. Easy to see how the controversy arose historically. Hard to see how it’s terribly interesting in that form. The way to think comparatively is to see similarities and differences!
  • Yest, T tried to elicit pts of both sim. and diff. btw Canadian and US opinions. We had more pt.s of difference than similarity: the Canadian seriatum approach v. US judgment of the court approach; the relative medical emphasis in US compared to relative absence in Can; substantive emphasis of US approach v. procedural emphasis in Canadian approach.
  • Useful to defamiliarize yourself from the US approach
  • Similarities: In Canada, as in US, in practice relatively few restrictions on the availability of abortions in large metropolitan areas.
  • The Canadian approach has the following structure: the articulation of a right, coupled with an authorization in the legislature to limit the right (a “general limitations” clause). So, what courts do is ask first: is there a violation of a protected right? And if there is, is it justified by the general limitations clause?
    • In Canada, the breadth of the definition of the rights means that the courts will in some ways always find that the right is violated – and all the work will be done on the limitations side.
    • In Canada, “the legislature can violated a protected right by sneezing.”
      • There’s one celebrated case in which Canadian Supr Ct said: Well, maybe there’s no violation of rts here. (Making solicitation of prostitution an offense.) But they said: no need to decide, it fits under general limitations.
  • v. US approach: we’ll ask: is this within the scope of the protected right? If not, we don’t care, the legislature can do what it wants.
  • J. Wilson in Canada = a woman.
    • note the personalization of the opinion in passage on p. 107: “It is probably impossible for a man to respond…”
    • Generally: One of the things that we’re looking for in Const. Law is some degree of objectivity – it’s a law for all of us. J. Wilson’s statement can be put into the form of a Const. argument (i.e., part of the right here involves the burden placed on the woman through the pregnancy, and you can only weigh that burden, W says, if you’re a woman), but it may err on the subjective side?
    • [T = sounds like Wallace Shawn]
    • T: Note what Wilson is arguing for:
      • first, the majority’s proceduralist approach to the result is fine, because it gets to the result of invalidating the law, but it’s inadequate
      • second, the court should face and resolve the substantive question of restrictions on liberty imposed by restrictive abortion laws (105)
    • Joke from Reversal of Fortune: Dersh to von Bulow: You are a very strange man. von Bulow: You have no idea.
      • we never have any idea

THE FIRST GERMAN DECISION

  • In the background:
    • Nazi legacy, the idea being: we must recognize some inviolable human rights – namely, the protection of the fetus
  • KEY: Legislature had decriminalized the provision of abortion services (under cert. circumstances) –
    • but court says: it is constitutionally required that abortion be made a criminal offense – T: b/c of the historical background
  • NOTE: Basic law (Germ. Const.) contains positive obligations, including protecting life. Sometimes known as the “state as organic community.” (116)
    • v. US version: the state as enemy or threat, to be limited
  • The Germ. Const. Ct. does what it does (says: we have an obligation to protect human life, and the fetus falls w/in that category) – it says: there is a straightforward liberty v. liberty conflict here: liberty of woman v. liberty of fetus. (Glendon-like arg.)
  • So: we have to criminalize abortion. Does that mean abortions must not be available in Germany? What cd abortion doctor and/or woman say if prosecuted?
    • Cd not use defense of justification (“this was the right thing to do”)
    • But cd use necessity defense (“this was the wrong thing to do, but we think it inappropriate to punish someone for this wrongful act”) if, e.g., the life of the mother was at stake.
    • Germ. Const. says: legislature can even specify this in statute – the conditions where continued pregnancy is not exactable.
      • Legislature can say: under these circ.s, we think it’s appropriate for woman to seek abortion, don’t want to punish her. We don’t think she’s right, but we understand why she makes the choice.
    • The conditions will be the “indications”. (v. timing model in US)
    • KEY: the “indications” for a permissible termination of pregnancy are, from US POV, quite broad: there are “eugenic” indications (severely disabled child), and even “social” indications: ct says: situations of “social distress” can be an indication of a circ. in which continuation of pregnancy is non-exactable. (119)
      • Consider tho: if the social distress would be inability to afford raising child, then state would have to provide welfare, child care, etc. (or abortion would be defensible)
      • Note: ct wants abortions to be seen as morally troubling, and rare
      • There are empirical judgments here (me: 122), which also come up in 2nd decision (133)

The SECOND GERMAN DECISION (1993) – striking down post-reunification abortion law (134)

  • Law here says: woman wanting abortion can go to abortion provider and ask for abortion w/o explaining why. If she gets an abortion (in the early stages), that abortion is not a criminal offense. So: early term abortions are decriminalized.
    • This seems to be in tension w/ first decision
    • Why is that okay?
    • Note: in first case, Const Ct said: if there are indications, leg can choose not to punish. In second case, leg. said: we won’t even ask about indications. So nobodywill be punished. But we’ll still say it’s “criminal.” Second ct said: this isn’t okay. Let everything else in the new statute stand?
    • Again, empirical judgment plays a role: leg saying: if we demand indications, women won’t even come in, they’ll get unhealthy abortions. Ct says: leg can make this empirical determination.
    • T: the most striking part of all this: the rule on public financing of abortion:
      • in US, it’s constitutionally permissible for govt to refuse to pay for abortions for poor women through Medicaid.
      • v. Germany has following rule (134): if you can’t pay for the abortion, the gov’t must pay for the abortion. (If you can pay for your abortion, the gov’t may choose not to pay.)
    • So: a key point: US Const is one of negative liberty; Germ. Const. is one of positive obligations.
  • Note: apparently it is the case that abortion rates in Germ. and the US are not that different – even tho the law on its face looks quite different.
    • (but it is quite difficult to get accurate info on abortion rates, and national level comparisons might be misleading – in Germ, and in US, abortions are relatively easy to obtain in some places, relatively difficult to obtain in others)
    • (in US, there are no abortion providers in smthg like ¾ of the nation’s counties)
    • in Germ, Catholic jurisd.s (v. Lutheran jurisdictions) are where it’s hard to get

GLENDON VERSUS TRIBE

  • Glendon: we should adopt more European approach, have courts a) recognize the interest in protecting fetus but b) allow legislative accomodation. Versus US approach now gives no recognition to fetal life (Blackmun in ROE 22: the closest he gets is recognizing state interest in “the potentiality of human life”)
    • G: recognizing fetal interest would allow interests of all sides in the controversy to be recognized – the views of those who support restrictive abortion laws
    • This wd assuage the other side
  • Tribe: US wdn’t buy this hypocrisy: pro-life person would look at German situation and say: how can you have a criminal act but never punish it? This just isn’t how we in the US think about rights: constitutional rights should be enforced uniformly across the board. Glendon’s solution would involve disparities in enforcement that US wouldn’t accept. (Me: also an equal protection element in here.) (me: a second claim, dubious, re: US unwilling to accept the hypocrisy involved)

NOTES ON COMPARATIVE LAW

  • Is a nation’s Constiutiton a distinctive expression of its history?
    • if you think yes, then you’ll explain variations on the basis of variations in histories
      • e.g., arguing: US can have relatively unrestricted abortion law b/c it didn’t have Germany’s Nazi history
      • BUT: pro-life could say: US did have an era in which human life was disvalued: slavery
    • if you think no, if you think there are universal human rights, then you’ll be attentive to similarities, and you’ll think: they’re all moving in the direction of these universally valid human rights or other universally applicable modes of governmental structure – e.g., the availability of independent courts to review Constitutionality
  • Sometimes the former approach (national distinctiveness) is referred to as “expressivism” (T’s term that got picked up); the latter approach is called “functionalism” (there are these functions that gov’t perform, and if they’re performed well, they’re performed the same in every way)

***

This week’s substantive topic: the relationship btw constitutions and some normative ideal of “constitutionalism”

At the outset: Tushnet has discovered that in teaching this, he stumbles in the words – ism v ist etc.

  • Two main topics:
    • SUNSTEIN article at start of chapter: Relationship between const.ism and self-governance
    • The ethnocentricity of constitutionalism
      • to anticipate an issue: rise of IHR culture may have overcome these problems
      • also: we’ll deal with the poss that constitutions can impede the development of constitutionalism (T. thinks O-Ogendo and Lat. Amer. essay author make somewhat diff. arguments about this)
  • SUNSTEIN article (on pre-commitment, written in context of 1991 E. Euro. constitutional design and the Q of secession)
    • a definitional tension btw constitutionalism and democratic self-governance, when latter is defined as the implementation of the present preferences of today’s majority, b/c former requires that some things that today’s majority wants to do can’t be done
      • e.g. restricting freedom of expression. Assume that stringent regulation of hate speech conflicts w/ 1st Am: then, if you enact such legislation, you’ve gone beyond the bounds of constitutionalism.
        • sidenote: a common distinction in the lit.:
          • 1. Const.s are frameworks for govt. (O-O says: “power map”)
          • 2. Const.s empower people to do things that they wdn’t be able to do otherwise (e.g. that require coordination, as in Sunst’s point re: avoiding prisoner’s dilemma)
          • 3. Const. limit what people can do (e.g. fundamental rights that majority can’t abridge, as here re: free speech)
      • Put aside for the moment one of Murphy’s points, that it is definitional of const.ism that there are specific substantive limits on self-governance (much more controversial proposition)
        • note: the tradition that Murphy is writing in is associated w/ natural law tradition – associated w/ Roman Catholic church – not coincidental that he’s Roman Catholic
        • interesting guy: writes novels describing politics (e.g. one in which guy becomes Pres., then Chief Justice… then Pope)
      • Sunstein is saying something different: const.ism requires some limits on self-governance
    • Question is: how do you justify limiting a people’s ability to govern itself? CS says: limiting what the people can do (#3) actually can empower the people (#2): as the lingo is: “pre-commitment strategies” (T: one of his hobbyhorses: “I think the term ‘pre-commitment’ is a linguistic error – all commitments are pre-commitments.” He wrote this, had no effect. Anyway, he prefers to call these commitment strategies.) How?
      • One of CS’s central argument: Constitutional limitations take some issues off the table.
        • (general idea seems to be: empowering b/c it prevents us from “wasting time”)
        • but how is this empowering? it’s not empowering for a democratic majority to have something taken off the table – if that’s what they want! BUT: it might be the case that the battle would always end up with x winning – then and now. So it’s better not even having the battle, not wasting time on that, if every vote is going to be 70-30 and take up a lot of political capital.
          • BUT: even here, if you keep silencing minorities, the 30% — or if you do it on enough issues, affecting different minorities – eventually a whole lot of people will be frustrated, feel that the game is rigged against them…
          • in other words: you’re certainly not empowering the 30%
          • These people might even prefer to “waste” time on debating and losing their issue again and again…
        • If you’re the leg. and Const. tells you that some issues are beyond leg. competence, then you won’t spend time on those issues. You’ll have resources freed up to spend on things that are within your competence.
        • T: note: CS uses slavery as example of an issue taken off the table. Well, it was taken off the table – until Civil War! And you cd argue we had a Civil War because slavery was taken off the table!
          • CS’s other example: abortion. Also seems to T not a good example of taking issues off the table.
        • Various ways of taking something “off the table,” and problematic consequences that may follow from the technique:
          • 1. Quite specific provision
            • a. Unanticipated change can be a consequence: later on, we realize we don’t want this off the table, we’re screwed
            • b. Leaching meaning: the specificity may be lost, or the scope may shrink, etc.
            • c. T: Constitutional workarounds – so even if you take a specific issue off the table, people might find a way around it
              • e.g., very recently: the emoluments clause of US Const.: the thing that Hillary Clinton’s appointment to US Sec of St violated (as well as 10-20 members of Congress before) (she was elected 2006; in 2008, the salary of Sec of St was increased; etc.). Everyone is happy w/ outcome, but you have to do a lot of fancy interpretive work to make this okay…
                • No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time
                • The Emoluments Clause of Article I, section 6 provides “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”
                • As I understand it, President Bush’s executive order from earlier this year “increased” the “Emoluments” (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time.
                • she would be being appointed to an office for which “the Emoluments whereof shall have been increased” during the time for which she was elected to serve as Senator.
                • The plain language of the Emoluments Clause would thus appear to bar her appointment … if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).
              • note: T thinks there are even ways to do Const.l workaround of 2-Senators-per-state problem: you could get proportionate representation in Senate using these techniques after 2-3 rounds
              • note: T also thinks you cd easily amend the “unamendable” 2-Senators-per-state rule in two stage: first amend the “unamendable” clause, then amend the actual procedure.
                • Actually, T thinks you cd do it in one stage, wd be seen as implicit repeal of “unamendable”
          • 2. General provision (more common in US)
            • a. Judicial interp. cd. put it back on the table – and judicial disputes might themselves be a form of the issue being on the table
        • T: In sum, not clear to him that CS account of taking things off the table works as a justification for constitutionalism
      • Another of CS’s central arguments: Some of the limits may only limit the people from giving away their power, from destroying democracy: these would be limits that protect the pre-conditions of democracy from abridgment by popular will
        • e.g. freedom of speech, right to vote (213)
        • me: but even this could be questioned – as Vermeule might: you’re still taking away the people’s freedom to choose a tyrant.  This isn’t really empowering the people who want the tyrant.
        • T: If, every year, it were up for grabs whether the election would be proportional or first-past-the-post representation, that would consume an enormous amount of time, and that would be a waste of time. Why is that a waste of time? The controversial proposition: each time, you’re behind a veil of ignorance, you don’t know what the outcome will be under either system, so there’s no important political choice here – just a waste. BUT: T: we’re really not behind a veil of ignorance! We know what conseq.s of various systems will probably be.
      • T: A connection between two previous points: suppose you are on the persistent loser’s side of 70/30 abortion debate. The Q for us is why those people keep at it. Why don’t they devote their energies to something on which they cd win?
        • a genuine puzzle for a Sunstein-like account
        • one reason they might keep raising issue is that they think if they raise the issue enough, they’ll eventually become winners: become an important component of one of the major pol. parties – they’ll give their 30% to that party on an issue we don’t care about like, say, health-care reform, if that party will go along us re: abortion
        • SO: you can persuade OR get yourself in a position to bargain by keeping the issue on the table.
      • me: CS dsn’t say this, but: the people’s preferences may be contradictory, impossible to satisfy in any case. If their choice were not limited, they might satisfy none of their preferences. By taking one off the table, you might empower the people to at least have one of their preferences satisfied.
      • NOTE: a practical objection to CS view: can you really “take issues off the table” so long as we have judicial review? Judges could always say that the Const. dsn’t take an issue off the table. (e.g. freedom of speech: maybe framers wanted to take this off the table – but people keep trying to regulate it, hoping that judges will say that regulation is okay)
    • [sidenote: how evaluate the success of a Const.? longevity? perhaps – tho we probably want to have this level off though: US Const’s 200 years longevity… Germany’s 60 years… both pretty good]
      • and how much of longevity is attributable to Const? the reading on “pol. culture” suggests that it might be just as/more important/nec. cond. for successful Const.
    • sidenote: T: how much can a lawyer’s way of thinking contribute to an insight about compar. const. law?
      • a genuine question. To some extent, T and Vicki Jackson disagree to some extent. T thinks that pol. science is perhaps more productive perspective than law, legal thinking.
  • SUNSTEIN: IN SUM:
    • CS thinks we can reconcile con.ism and dem. self-gov. by a commitment account in which founders empower themselves by taking some issues off the table and enacting some provisions that are in their long-term self-interest by taking things off the table when they’re short-sighted:
      • 1. free up political space for other political concerns (the “take off the table” issue above)
      • 2. implement substantive policies that are in long-term interest of people but might not be in short-term interests (e.g. prisoner’s dilemmas, etc.)
    • and our conversation has been skepticism of above:
      • 1. if it’s in your long-term interest not to do something, you have to have some story about why the framers are able to perceive the long-term interest, but not the people at the time they’re making the decision
        • [we’ll talk about this with Ackerman]
        • but CS’s ex. is dormant commerce clause: there wd be interstate trade wars, tariffs…
        • T: if the framers can figure that out, why can’t NJ citizens figure this out at the time they’re considering doing it? T: not clear why
      • 2. it’s not clear that you can do this as a factual matter, b/c of “quite specific” “general provision” note above
  • The ETHNOCENTRISM ISSUE: (T: unfortunate that the best we cd find aren’t particularly clear writers)
    • This concern has been most clearly articulated recently in what was called “the Asian values” debate:
      • for very specific political reasons, political leaders in Singapore and (?) Malaysia said: we’re getting criticized for our practices b/c we’re repressing our people in a matter inconsistent w/ constitutionalism – but that crit is ethnocentric: it draws on a notion of con.ism that is western in its essence, and we have “Asian values”
      • what are these “Asian values”? to the extent that there was specific content, it was: West is highly individualistic and W.ern con.ism rests on this; v. we in Asia are more community-oriented, and our con.ism implements this notion of communitarianism
      • as a footnote: this debate fairly rapidly petered out, for three reasons:
        • 1. the people asserting it (var. specific authoritarian leaders in Asia) were clearly doing so to deflect crit of their regime – these were not deeply principled arguments – clearly political, of the moment, dressed up in principled terms
        • 2. it rapidly became clear that w/in these nations there were people – fully Asian! – who had same conceptions as W.ern critics of the regimes
        • 3. (maybe indication of T’s ethnocentricity) Whenever specific examples were given of consequences of Asian values for Constitutional norms, it turned out that the arguments were arguments over proper interp. of universally accepted norms should be
          • e.g. hate speech: “given our communitarian orientation, we think that hate speech is particularly troubling, b/c it demostrates disrespect for others in the community – and given our social circ.s, hate speech is likely to be socially destabalizing – like communal riots, communities whipped up by hate speech – so we regulate hate speech more stringently”
            • the problem with this is that these are perfectly sensible components of an argument for regulation of hate speech in the West. The values here are the same – the only Q is interp.
      • [student note: also, all the so-called “Asian values” were actually Chinese, and more specifically, Confucian. Respect for age, etc. Not all of Asia! (But in Malaysia, they cdn’t say “Chinese” b/c of delicate political/ethnic situation there.)]
      • [T: Parallel: the debate may also have been underlied w/ unstateable arguments re: Singapore’s place in Asia.]
      • Anyway, the debate as a debate is over – the circ.s have passed, and the analytic point seems not supportable. BUT: it raises the Q whether “constitutionalism” is itself ethnocentric.
  • sidenote: T got interested in Singapore after brief visit there b/c it seemed to pose the poss. of what he called “authoritarian constitutionalism” – had some of the normative stuff, but is also a sort of authoritarian state. Quite puzzling. (Also, not clear that any place other than Singapore fits this category. But maybe Iran? They didn’t like this comparison…) SO: Can you have “authoritarian constitutionalism”?
    • You might start out w/ a purely authoritarian state – it has a written Const., but all that the Const. says is: authoritarian leader has absolute control.
      • e.g. the pre-1989 Communist Const. in China w/ provisions about Comm. Party being leading rep. of people were the written expression of authoritarianism – and it was significant that when Comm Party tried to reform, first thing they did was take these expressions out of Const.
    • Versus: “rule of law const.ism”: “We the gov’t can do anything we want – BUT: we have to say we’re going to do it in advance, and follow procedural rules”
      • e.g. some people see Singapore this way.
      • e.g.: someone detained w/o grounds: court ordered release on technical grounds. As a result, he is released, driven to home. Singapore congress amends legislation, he is rearrested on the same day!
      • Lon Fuller (HLS) (in Morality of Law) famously made arg. in 1950s: Minimal rule of law requirements were such that a full-scale authoritarian gov’t could not comply with the requirements of the rule of law.
        • T: not sure this is right
    • Argument re: Nazi Germany, later applied to Apartheid South Africa: the “dual state”:
      • a const.al state re: Aryans; an authoritarian state re: non-Aryans
      • Q about whether this is a stable system
  • Q for tom: whether this set of categories is now foreshortened or collapse by the existence of universally-agreed-upon IHRL

***

CATEGORIES re: CONSTITUTIONALISM

  • Frame: (me: spectrum from non-constitutional state to fully constitutional state)
    • Purely authoritarian gov’ts
      • ruler’s will unconstrained by anything
    • Rule of law gov’ts
      • has no substantive restrictions on what it can do, so long as it obeys variety of procedural restrictions
      • Lon Fuller’s Morality of Law: rule of law req.s that rules be:
        • public,
        • announced in advance,
        • six other criteria…
      • T. claimed that one can have a state that is close to authoritarian, yet complies with rule of law: story re: Singapore dissident yesterday
      • Yet Fuller would say in response: the fact that the rule (the technicality) applies retrospectively does place limits on what the authoritarian gov’t might want to do (b/c it allows dissidents to read the rulebook and find loopholes, a way of doing something that isn’t prohibited in advance, etc.)
      • T.’s view: Fuller’s view is overstated: formal constraints of rule of law aren’t enough to prevent a quite authoritarian gov’t
      • (Hong Kong may be a rule of law state moving in the direction of purely authoritarian)
    • Dual state
      • one class of people fully protected by substantive limits on gov’t power, get the full benefit of the law
      • another class that isn’t: Africans in Apartheid S. Afr., non-Aryans in Nazi Germany – subject to arbitrary rule
      • T: whether you can sustain the dual state in the long-term: not clear
      • (S. Afr. and Germany moved from dual state to Const. state)
    • Constitutional state
      • the fully const’l state: everybody protected by the kind of substantive limitations that are invented in the notion of Const. as limiting power
  • Empower (Sunstein)
  • Limit
    • Murphy says (217+):
      • the core topic of Comp. Con. analysis should be the Const.’l state – we should be focused on the way Const.s limit gov’t power: the subject matter of Comparative Const. study is limitation on gov’t power. That limitation can take two forms:
        • Substantive limitations (speech)
        • Structural limitations
      • Prominent Brit. const.ist: “Parliament can lawfully enact any rule that’s compatible w/ the physical laws of the universe.” So: no substantive limitations, as a matter of Brit. Const. theory – until some time late in 20th C. Nonetheless, everyone agrees that Britain is a constitutional state: which means that the limitations emerge from something in the structure of Brit. politics, or Brit. pol. culture, etc.
      • Note: leading competitor casebook to our book is called “Comparative Constitutionalism” – more compatible w/ Murphy’s approach
    • v. Murphy: Ethnocentricity critique: (McWhinney, 228+)
      • Murphy is ethnocentric to say that limitations on gov’t power are central to constitutionalism and comparative const. study.

 

MORE:

  • Sidenote: Michelman’s approach to Con. Law: do a comparison of US Con Law and S. Afr. Con Law – one semester just on that – very deep probe into the nations’ systems.
    • v. Tushnet’s approach, looking at breadth of systems, variety of possibilities
  • Sidenote: Big debate: Transplants of private law: do they work?
      • Law & econ. people will tend to say: yes – b/c if legal rule reduces transaction costs, it shd work the same way
      • Others are more skeptical
    • BUT: in general, there’s a sense that transplants of public law won’t work (goes back to Montesquieu L’Esprit des Lois: each nation’s law emerged organically from its history, etc. – idea develops in Germany also)
      • comparative private law scholars get around this by saying: transactions happen across borders
  • Note: for exam, look back over thesis of each essay
  • T’s position on ethnocentrism, again: not clear to him that const.ism is ethnocentrism in the way that McWhinney suggests it might be. Nor is it clear to him that it’s intellectually productive to limit our focus of concern to Const.ism defined as limits on the state (Murphy).
    • note: Li Quan-Yoo (sp?), still alive, running things in Singapore (tho no longer has an official position) – important: he was the leader of the Independence Party – the founding leader.
    • Recurring theme: the role of the founding leader in shaping gov’t institutions
    • Anyway: some of the things you might want to say about the Sing. institutions can’t be said w/o looking at its history, national life, etc. (what T. called “political science”)
    • BUT: Compar. Con. Law requires you to be able to say something beyond references to individual’s nations particularities

Okoth-Ogendo

  • Leading Kenyan scholar of Con Law – and political activist – in 2004, was chair of Kenyan Con. review commission
  • Gets in trouble when Con. tensions rise – now something like teacher of public health at small local college…
  • Article: me: Abuse of ethnocentric arguments by post-colonial African military regimes to present Const. as liability, then reform it (to accord with, e.g., “African way of life,” etc.; having var. features: imperial presidency, indefinite eligibility, etc. 250+), then ends up being sham Const., tool of their oppression…
    • 1. Why do these countries have a const. at all? when there’s no real limitation on gov’t power
      • the use of the Const. to differentiate the post-colonial nation from the colonial one
      • related: to show sovereignty/legitimacy to external world: signals that you are an indep. nation
      • having a const. is a good way to moving toward becoming a mover on the int’l scene
        • int’l law says: you’re an indep. state when enough people recog. you as one…
        • BUT: one way to attract recognition is to say: look! we’ve got a Const.!
        • [sidenote: but having a Const. dsn’t really mean anything: John Brown drafted a Const. for a Free United States – didn’t mean anything!]
    • 2. Then: after writing these Const.s, the people who were empowered by the Const. become authoritarian leaders. Why?
      • O-O: b/c these people who became authoritarian rulers decided that being authoritarian was good for them.
      • T: They might also have persuaded themselves that it was good for country as a whole.
        • it’s worth perhaps constrasting these corrupt Afr. kleptocrats, murderers, etc. w/ some leaders who become authoritarian but don’t really do it to become extravagantly wealthy – e.g. Li Quan-Yoo
    • 3. How do these rulers do this?
      • The Const. that’s created in order to signal independence provides the basis for the personal enrichment / legal rationale for authoritarianism / personal enrichment of authoritarian ruler
      • Const. as tool of oppression, as anti-constitutionalism
      • Sometimes also accompanied by argument that it’s necessary to have authoritarian hand for a while – reason to be skeptical about this claim though… b/c often ends up that “a while” = as long as the guy is alive, maybe even passed on by him to someone…
    • 4. KEY:
      • T. thinks that what O-O says is: the Const.s that were adopted in post-colonial Africa impeded the development of constitutionalism
      • But not totally clear: b/c O-O seems to be saying: these bad things happened b/c of provisions in Const, e.g., emergency powers provision – BUT: a lot of Const.s have these provisions, and don’t have these problems
      • SO: it’s unclear whether the bad things that happened are really a result of the Const., or wd’ve happened regardless of the Const. (student objection)
        • T. is reminded of first sentence of Fed. Papers: the people of this continent are in happy circumstance of making Const. by choice and design v. custom and inheritance.
        • O-O seems to say: bad design choices were made. But then when he describes the social circumstances to which these design choices purportedly responded, it’s hard to see any design choices that would’ve avoided the difficulty afterward.
        • E.g., a problem that comes up: inclusion of minority rights in Const. can lead to problems (or did he say “exclusion”?)
          • Most interesting innovation of past generation: staff the courts w/ people from other countries
        • BUT: we shd at least think about the possibilities that there were design choices that would’ve accomodated minority rights, etc. better than the ones that were made
        • GOOD EX.: Nigeria had the same ethnic tension-type problems as Zaire, which fell apart (majority ethnic group problem) – former eventually settled on req. that pol. parties be designed on cross-regional lines: no regional party allowed.
    • Recurring motif: T. associates w/ Franklin and (Baum?) (earlier reading): For a Const. to work, you need a political culture. Commitment to constitution among elite, various conditions in population, etc. – one factor: if your transition took place through military leaders, they might have greater tendency to be authoritarian.
      • one of the crazy things about S. Africa: a military resistance movement led by someone who has to be called a saint, didn’t do what authoritarian leaders do…

Santiago-Nino (T. pronounces “Niño”)

  • The development of authoritarian regimes in post-colonial Africa:
  • 1. the social milieu argument
    • given the conditions – e.g. role of military leaders in the country – it was very likely that author. wd. develop, emergence of con.ism was unlikely
  • 2. perhaps the first arg. is right, BUT there were design choices that cd’ve been made that wd’ve encouraged the development of con.ism or impeded the development of author.ism
    • T: O-O leans to this arg.
      • and if you’re an academic/activist, you almost have to lean toward this arg. If social milieu is determinative, there’s really little/nothing you can do!
      • wd. mean authors of Fed. Papers were engaged in self-del. when they said America had a choice
    • O-O opens up Q of extent to which design choices affect the development of con.ism
  • and Santiago-Nino makes arg. that specific design choices in Latin America (esp. presidentialism) impeded the development of con.ism there
    • Santiago-Nino: very prominent con.ist / activist in Argentina – died of heart attack relatively young
  • Note: Lat Amer. const.s were designed on basis of US Const. – BUT pres.ism in US hasn’t turned out the way it has in Lat Amer
  • Article = critique of Lat Amer presidentialism
  • Features of Lat Amer presidentialism that harm democracy:
    • T: Once the presidency has become the dominant instiution in the Con. system, then pol. ambitious people will devote energy to becoming president v. becoming Senator who has no real power – leading to further weakening of other institutions
    • Another factor: the president claims (to some extent accurately) to be the only person who speaks for the people of the country as a whole – that’s different from Prime Ministers (selected by governing coalition)
        • [sidenote: Isr. went through one election-cycle experiment of having PM elected through nation-wide election: disaster (1998?)
        • pol. sci.s wd say a predictable disaster]
    • Then: For design-related reasons, the Parl./legislature turns out to be paralyzed – unable to set coherent policy-course.
      • b/c (most scholars say) of election of leg. by proportional representation – leads to paralysis
      • AND that’s what distinguishes US from Lat Amer
    • Further strengthening the Pres., who can now say: Parl. is ineffective – only way to get things done is me taking charge
    • IN SUM: Presidentialism + proportional rep. in Congress = disaster, repeated rounds of authoritarianism
      • very ingenious, but… most recent studies suggest it’s not actually right: if you try to sort countries into those that descend into auth.ism periodically and those that don’t, a lot of things don’t matter:
        • a base level of prosperity is necessary to avoid auth. / sustain con.ism – but it’s surprisingly low
        • the design of pres.ism and elec. system has almost no effect!
      • the best, most recent studies suggest that what really determines susceptibility to author.ism in Lat Amer is whether you have a history of military coups: then the military feels empowered to intervene. If that’s the case, then the chance of authoritarianism is quite high.

***

topics this week:

PROCESSES OF CONST.’L CREATION

and

ACKERMAN ON CONST.’L MOMENTS

and

PRINCIPLE & COMPROMISE IN CON. FRAMING

(and

perhaps TRANSITIONAL JUSTICE issues)

  • Last week, the topic was distinction btw Const.s and con.ism: We ended w/ disc of Okoth-Ogendo and Santiago Nino – both dealing w/ prob. that particular Const.s seem incompatible w/ con.ism – latter has some normative content.
    • one of the questions left open – something to think about: whether the prob.s that those authors identify result from (to put it starkly) bad design choices made in creating a Const. for Lat. Amer. countries or Afr. countries… OR: the variety of cultural/political/historical/social/economic constraints that those nations experience at the time of the creation of the Const.s
    • the question posed by these materials is: was it force and circumstance (not much you cd’ve done about it) or bad design (bad choices that were made)?
  • The two things left over were things that come up in Murphy’s catalogue of things about Const.s: they came up briefly in our conversation last week, but more explicitly, they were:
    • 1. suppose you observe a Const. that in its normative dimensions seems fine in const.ist terms – it’s got a decent bill of rights, a gov’tal structure that makes possible a reasonable amount of enabling and constraint of the type we discussed last week – and then you observe a fairly large distance between what a Const. is supposed to be doing and what’s actually happening in society.
      • classical example: Soviet Const. of 1937 – has a perfectly good bill of rights – adopted in middle of Stalin’s rule – has essentially no relation to what’s going on in society
      • or: you find a free speech provision – one that allows restriction in var. enumerated circ.s – Euro Conv on HR takes that form. Reasonably long list. (Critics say: covers every excuse a gov’t might want to use.) In Euro system, that provision works fine. In Singapore, the govt wd use the restrictive provisions to restrict freedom of expression.
    • What do you call Cons.s in cases like thisMurphy, simplified, says there are two poss.s:
      • a. The Const. is a “sham” – created for some reason, but not designed to have any operative significance.
        • when you see a sham Const. you do want to wonder: what is the reason for creating it? not always easy to figure out. Propagandistic poss.s? But who is going to be fooled by, e.g., Sov. Const. of 1937, except those who didn’t need it to be fooled…
      • b. The Const. as “aspiration” – people w/in the system will say: of course we’re not doing this now, for a variety of reasons, but we hope this is what we’ll be able to do in the future – and we hope that writing this down will motivate political actors.
        • in Singapore, this is how Li Quan-Yu articulated what was going on
        • v. sham, a much more benign interpretation of distance btw document and reality on the ground
        • NOTE: can also serve to keep people in order if they believe it’s a promise, going to happen one day.
          • [distant sidenote: is S. Afr. Const. more social democratic or more neoliberal? (Note these as T’s terms for these 2 directions.)]
          • [also: keep in mind throughout these discussions – assessments of Const.s, even US’s – must keep an eye on divergent interp.s of Const. – interp’d one way, might be a sham; another way, might be real.]

CREATING CONSTITUTIONS

  • First, in the chapter, T goes thru a variety of processes for Const.’l creation
  • If you read most theorizing about the creation of Const.s, the prob. the theorist will try to confront is usually: A Const. is designed to bind the future, to tell lawmakers in the future what they can and can’t do; the theorists then wonder: well, how is it that the people today can impose constraints on the people tomorrow?
    • The US versions: the dead hand of 1789
  • The theorists’ solution is captured by the distinction on p. 275: the pouvoir constituent and the pouvoir constituéThe former is completely unlimited: at framing, the people can do whatever they want. One thing they do is set up institutions for governance. BUT the bodies that they create (the constituted power) are limited by their choices, can’t do whatever they want.
    • SO: two levels
    • (me: aren’t these two terms implied in the question, not helpful at all?)
    • T: Ack’s notion of Const’l moments tracks this distinction.
  • If you conceptualize things in this way, you have to ask yourself: how do the people go about doing their constituting?
    • The standard answer = the constituting people create a “constituent assembly” to write the Const.
      • the basic idea being, you move outside the framework of the then-existing constituted power – so that it’s no longer Congress, but an extra-legal body…
      • and as a purely technical matter, this is going to have to be some subgroup of the people: somebody’s going to have write the damn thing!
    • Then the constituent assembly submits the draft in a referendum to the people as a whole
    • And the people can revise
    • Result: new Constitution.
  • First problem: what are the rules for selecting the constituent assembly? Where did they come from? The rules have to be in some sense extra-legal – outside the bounds of the existing Const.
    • in Ack’s work (outside excerpts in book) he argues fairly forcefully that the Const’l Convention of 1787 had exactly this extra-legal characteristic: there was a movement in the mid-1770s, people in N. Amer. org’d into the Confederation of the U.S. – and there was widespread agreement that Confed. Const. didn’t work very well. Congress of the Confed. agreed, so it proposed the calling of a convention to consider amendments to the Confed. Const. In order to amend it, you had to have unanimous agreement – b/c it was a confederation, a treaty – and that’s what int’l law says about treaties.
    • But once the delegates arrived, decided it wasn’t worth amending – decided to write a new Const.
      • RI didn’t participate in Conv. at all
      • and by end of process, two states had left
      • and NY was seriously unrepresented
    • Then: asked: how will we make this take effect? (given that RI won’t go along, etc.)
      • Decided: Const. will go into effect when ¾ of the 13 states agree to it
    • Ackerman says: this is clearly extra-legal. Violated what they were asked to do. Violated Confed. Const.
    • [me: curious: was US Const. really a violation of AoC? It never explicitly renounced AoC. Could we imagine AoC still being “in effect” in theory? Like if several nation-states had a treaty, and a group of delegates was sent to revise the treaty, and then the delegates decided to merge into a union, have a Const., propose it to the various states, and anyone who signs on can join, those who don’t won’t be required to. Only if we erroneously view the AoC as a true Const., v. a treaty, does the Const. Conv. appear a violation of AoCs, v. simply outside of them?]
      • T: When the Convention concluded, the Continental Congress (i.e., AoC Congr.) basically sent a letter to state gov’ts enclosing a draft of Const. and commending it to state gov’ts – didn’t endorse it, but didn’t oppose it either.
    • T: KEY POINT: This process – the constituent assembly step – has to be extra-legal, outside the bounds of the existing Const. In theory, anyone could do it – a group of law prof.s cd get together, decide to draft a Const.
      • in these drafting processes, there are very bizarre moments, e.g., Czechoslovak. Const. was done in round-table process. Negot.ors said: here are broad contours of what we can agree on. Then they said to bunch of law prof.s: draft a Const. Then law prof.s did in 48 hours non-stop drafting.
      • Even in case of Israel, legislature is free to vote to appoint a constituent assembly and draft a new Const., but this wdn’t be a power that was given to them, wdn’t be a reflection of pouvoir constitué.
    • Note: in these negotiations, those who have power already get included – those with the guns (E. Euro. Comm. parties), those with the capital (S. Afr.), even if they have no moral authority whatsoever. (Note the quote Georgian girl in class read: everyone had to be given seat at the table, “piece of cake,” ended up being 180 or something, and they didn’t get anything drafted.)
      • tho the US didn’t have this problem: loyalists left, went to Canada or Great Britain, or Caribbean… they just weren’t around, so drafters didn’t have to deal with them
      • eliminated a source of design problem
      • these days we call this ethnic cleansing and it has a bad name – but no question that it does ease the path to designing a Const.
  • Q: Could the existing legislature draft a new Const. and present it to the people for ratification? If so, what might you worry about? Why might you prefer a constituent assembly as a drafting body?
    • Ackerman wants clean break, constit. assembly, so that people will have a less short-term-political, more long-term, perhaps less self-interested perspective, behind a kind of “veil of ignorance”
    • Another concern: the existing legislators will draft Const. provisions with an eye to their perpetuating themselves in power, whereas constit. assembly elected for sole purpose of drafting a Const. might not
      • note that referendum is usually an up-or-down vote (you vote for whole package or against it), which makes it poss. for self-interested legislature to get away with this, so long as they solve enough problems in addition
      • Note re: referendum: sometimes when there’s a lot that people can agree on but some smaller subset of issues that people can’t agree on, people try to do referendum w/ two votes:
        • turns out, this dsn’t work well: what happens is that first part gets agreed to, second part gets voted down – resulting in incomplete Const that dsn’t really solve the prob. – or second part narrowly passes, and then you get same conflict between narrow majority and minority that you wd’ve gotten with single-vote referendum
      • Alt.: Poland just replacing its existing Const piece by piece until it had a de facto new one
      • Note the Israeli mechanism: use the existing Parliament as the drafting body (see Jakobson piece)
        • they originally decided to write a Const. piece by piece
        • what happened was: Parl. elected – at some point, gov’t introduces new basic law, and accompanying that is a declaration that the Parl. is now sitting as a constituent assembly
        • BUT: b/c the electoral incentives work diff.ly on Const’l design and on e.g. doing budget, this is viewed as a bothersome procedure
    • Also, the people you’d elect to build bridges, etc., might be different than the ones you’d elect to draft a Const.
  • S. Afr.: a new model of Const. development: what happened there was two-stage process:
    • at stage one, essentially a round-table negotiation, solved some of the easy design questions, identified a series of basic principles that a final Const. had to adopt.
      • They put in place a new Parl., and that Parl. creates a new Const.
      • BUT this puts existing power at risk
    • SO: two stages:
      • 1. an interim Parl. will draft an interim Const.
      • 2. then final Parl. will draft a final Const., which will have to be certified by a new Const. Court.
        • in the event, the Const. Court did invalidate some of the proposed provisions of final Const.
        • that’s good, b/c then everyone cd say: they didn’t just rubber stamp
        • BUT: w/ one important exception, the things they invalidated were quite minor – e.g. a provision for having a state auditor didn’t give the auditor sufficient independence from political control, as required by principles in interim Const. – the one exception: provision for amending bill of rights, they said, was too easy. And this was corrected. BUT had its own problems. Amendment wd now req. 2/3 Parl. ANC got 65% in 1st Congr. Soon, tho, they got 67%+, and to today can amend at will, which creates further problems for Const. Court.
  • A transition to the next topic: when the new post-invasion Iraqi Const. was adopted, there was some Q about whether it shd be done as a one-stage or two-stage process. They opted for former – negotiations to develop new Const., drafted, ratified by referendum.
    • (some say two-stage process wd’ve been better: unresolved tensions cd’ve been negotiated out)
    • The new Iraqi Const raises another set of issues: “the imposed Const.
    • military occupiers
    • T: the Iraqi situation looks more imposed than internally developed (Feldman might disagree)
    • BUT there are two enormous successes of imposed Const.s: Germany and Japan after WWII
      • stories are a little different, tho not as diff. as sometimes asserted
      • Japan: MacArthur had staff write the Const. – no input/participation from Japanese national. There was one woman who was of Japanese origin and on drafting staff, who wrote in a gender-equality provision. (T: First such provision in any Const. in the world?)
        • the Japanese Parl. came to MacArthur’s office and said: we understand that you’ve written a Const. for us – let’s take a look at it, and we’ll see what we shd do.
        • MacArthur said: well, you can look at it, but this is what you’re going to adopt.
        • T: I don’t fully understand how this worked
        • They said: what you’ve given us is something written in informal Japanese, not the way we really write our legal documents. So we’ll translate it into the other way of writing. And they did. And the translation – no one believes it’s unfaithful – that apparently was sufficient to satisfy the Japanese Parl. and citizenry that this was sufficiently domestic in origin to be a legit. Japanese Const. T: Last part is a mystery to me. But this is what all the historical accounts say. The translation was a really significant step in getting the Japanese to accept the Const.
        • It’s also often said that US had to do the drafting b/c trad.s of con.ism in Japan were far too weak for there to be domestic source.
        • Almost certainly overstated: there were Japanese liberal constitutionalists. Not terribly influential w/in Japanese legal community, but also not marginalized.
      • Germany: Prior to Nazi take-over, had a liberal Const., and very sophisticated liberal thinkers. Many left during Nazi era, not all came back to participate in drafting process. So the Germany Basic Law of 1949 really is best understood as an imposed Const., but one that drew significantly on domestic German thinking.
    • How could an imposed Const. be successful?
      • 1. It might not be successful right away, people might not buy into it right away. But if it works reasonably well, they may come to accept it as their own.
        • BUT: the Germ and Jap Const.s were accepted much more rapidly
        • Clearly, in Germ there was buy-in from the beginning – repudiation of Nazi
        • In Japan, a little more puzzling why there was buy-in from the beginning
          • perhaps partly b/c MacArthur did not insist on removal of emporer
          • allayed concerns by elites
  • Note: we usually think of Const.-making, the whole process above, as happening in fairly short period of time
    • BUT: Poland: complete replacement of Const., but over extended period
      • reason for gradual process was: not poss. to get agreement early on – but as time passed, people were persuaded

ACKERMAN

  • We give you this excerpt from Ack focused on C. and E. Euro. What he says is Const.’l adoption, to be successful, must occur in constitutional momentsWriting shortly after 1989, he says: I think that C. and E. Euro. may have lost a Const’l moment.
    • He’s clearly wrong in saying that as a general matter, the transformations in C. and E. Euro. lost the Const’l moment –
    • But he is right in saying that in the immediate transition period, no large-scale Const’l transformation occurred –
    • he’s wrong in saying that that failure meant they wdn’t be const.ized further down the line
    • Some places did and some places didn’t – and there’s no relation between success and failure and having seized or not seized the Const. moment
    • E.g.: Czech Repub and Hungary seem to have done fine
    • E.g.: Slovakia hasn’t done so well
    • But doesn’t have much to do w/ seizing of Const.’l moment
  • BUT: his conceptualization is an important one: the difference between constituting power and constituted power is important b/c we’re concerned w/ getting principled solutions that will stick in the long-run. And in order to do that, you have to be in a certain cast of mind. In ordinary politics, you’re looking out for short-term gain – US politics as short-term interest-group bargaining – many people not paying attention – and that’s a good thing. But sometimes, there are these Const’l moments when it is both desirable for lots of people to get politically energized and, once they are, they think about political decision-making differently: they think about the long-run. So you get better-quality decisions made in Const’l moments: i.e., likely to do a good job over the long-run. T: Maps onto constituting power and constituted power: ordinary politics is latter, const’l moment is former.
  • Q for tom: Elster: crises provide the occasion for const’l choice – that’s what shifts people from ordinary politics into const’l moments – BUT: times of crisis are not very good times for making good choices.

***

  • When creating an entirely new Const., you want the designers to be thinking in the long term
    • You want them to be behind a “veil of ignorance” so that they will make decisions that are good for the nation in the long-run and not be entirely focused on what is good for them in the short-term
    • Sidenote: there is a diff. btw designing an entirely new Const. (Ackerman and Elster’s subject) and modifying in relatively small ways an existing Const. (discrete amendments) – you want the latter to have a long-term kind of attention, but the thought is that it’s different when you’re focused on a particular problem.
      • e.g., there’s now a reasonably seriously proposal to amend the US Const’s provisions for describing the means by which Senators who resign/retire/die in office are replaced: the considerations going into whether that kind of amendment is well-designed are diff. from the ones going into whether an entirely new Const. is well-designed
    • T’s inclination is to think that the discrete amendment (e.g. the Senatorial replacement amendment) can be done by ordinary politicians for purely “good government” reasons.
  • Discrete amendments:
    • Why are discrete amendments done?
      • Good government efforts
    • Why do ord. politicians devote any time/effort to good gov’t reform?
      • Well, they rarely do. It’s very rare for g. g. reforms to occur simply b/c they’re good reforms.
      • When they do occur, there’s usually a lot of other stuff going on – econ crisis, etc., takes up a lot of time – and then a norm-entrepeneur can kind of slip this through, b/c no one really cares about it. But this is why you can only get one or two of these ideas.
    • good e.g.: the Presidential disability Amendment (25th?) – designed by experts, no large-scale consideration of it. 2nd Pres Bush twice signed doc.s turning over authority to Cheney when under general anaesthesia.
      • sidenote: the 27th Amendment is an entirely different story.
        • When Madison proposed Bill of Rights, he proposed 12 Amendments – first was about seats in Congress (wd’ve been disaster: today, 1500-12000 seats in Congr today?), second was the 27th.
        • These first two amendments weren’t ratified by a sufficient number of states.
        • They just sat around for 200 years, until ~1980, a law student said: This wd be a good idea to get adopted. And it’s still pending before legislatures.
        • Then by 1995 enough ratifications had accumulated, and Sec of State certified this, so became part of Constitution.
  • Large-scale transformations:
    • Why do people put aside their daily concerns and start thinking big?
    • Ackerman: They do so only when there are conditions of crisis.
      • Otherwise, it’s not worth devoting any energy to a large-scale transformation.
    • Crisis conditions put people in the frame of mind to think about long-term redesign.
    • Note: Ackerman also explicitly says the New Deal is a Constitutional Moment of the sort he cares about.
      • indeed, as a matter of intellectual history, the entire motivation for his theory is to constitutionalize the New Deal – to say, after the New Deal, we in the US have a diff Const from the one we had before it – so that he would be in a position to say that there was something “unconstitutional” about the Reagan revolution, which was a repudiation of the New Deal.
      • (he’s got a very fancy scheme to show how you can distinguish between the New Deal Revolution and the Reagan revolution – T: doesn’t work at all…)
    • These Const. moments are circumstances when the people of the nation are in an important sense mobilized by political leaders (me: versus the leaders being moved to act by mobilized public) to confront an existing Con regime and successfully defeat it – e.g. in Czech.ia – Vaclav Havel, a pol. leader w/ no official status who served the role that presidents do in Ackerman’s scheme.
    • Ackerman: we’ve had 3 Const. moments: Revolution/Framing, Civil War, New Deal
      • T: I think there’s a real case to be made that we’ve had 4 – Reagan Rev. as fourth
      • (if you want to expand further: maybe Jacksonian America, maybe progressive era, maybe we’ll one day say Obama…)
    • Jacobson: not the most lucid writer. T: I take his arg. to be: in addition to a mobilized people, you have to have as the outcome of the constitutional moment (for there to be a successful one) the mobilized people agreeing on a national self-definition.
      • in US, we’ve kept “the apple” (our idealized self-definition) constant for over 200 years, while the frame (the various Constitutions, through various con. moments, incl. imperfect first one) has changed
      • by contrast, in Israel, they’ve never settled on a national self-definition that somehow makes sense of the dual commitments to Israel as a Jewish state and as a democratic state
    • [sidenote: at the end of Ackerman’s vol. 2: It’s as if we’re a train moving into the future over a series of hills and mountain ranges – and the courts are in the caboose of the train looking backward – and their job is to explain how the Const. of 1789, 1868, New Deal Const. somehow tell the story of national continuity. Ack says he’s going to do this in Vol. 3, which hasn’t appeared yet.
      • T: very skeptical that he’ll fulfill this promise.]
    • Note: FDR had as a possibility on the table the idea of amending Const. to get around obstructivist court – FDR explicitly rejected this.
      • T: not sure, but I think the ground was that the scope of the New Deal revolution that FDR envisioned went beyond what wd be addressed in the textualized version
  • Post 9/11 Constitutionalism
    • He would create a framework statute since Constitutional Amendment would prove too difficult and would not be necessary.  The goal would be to minimize the likelihood of a second strike while also taking care to end the emergency when it is no longer needed.  In order to reach those goals, he offers extraordinary power to the executive, but only subject to a “supermajoritarian escalator,” which requires, as its name implies, a larger and larger majority of Congress to continue the state of emergency.
    • In the emergency short term, Ackerman would allow for preventative detention, but would also include reparations later, if those detained were innocent, and provide some protections from arbitrary treatment including a bureaucratic identification, 45-day detention limits (with possible extensions), interrogation guidelines (no torture), emergency due process rights and access to an attorney, and the ability to challenge any terrorist designation.  The courts would be charged with overseeing such treatment.
    • He provides for minority (party) oversight wherever possible, includes language to protect expression, and requires affirmative steps to continue the emergency.  He also suggests that these emergency powers be granted only in exceptional circumstances; only when, he says, the attack is “on the scale of those which occurred on September 11, 2001” (p.93).  Judges would assure the emergency is significant enough to invoke the emergency constitution and would be sure the supermajoritarian escalator is honored; that the President give up the emergency powers when Congress deems it time to end them.
  • ELSTER
    • BUT: Elster says: crisis conditions are not really conducive to good decision-making:
      • First, Combination of panic and urgency.
      • Another part of the concern comes out in discussion toward end of chapter: compromise and principle. Conditions of crisis are ones in which people actually disagree a lot about what the relevant principles should be – or agree on such a high level of abstraction that writing down their agreement won’t address the issues causing the crisis.
        • Osejenski (sp?) is particularly upste about failure to resolve disagreements in the Polish context.
      • Also: In a crisis situation, you’ve got immediate problems that you need to solve, and you’re not behind a veil of ignorance.
    • What to do?
      • Elster makes very interesting observation: the Const. moment/constituent assembly idea is that the people mobilize, are going to act in a principled kind of way.
      • Elster says: the circ.s when you’re actually doing Con. writing, there are two modes of discourse: arguing and bargaining.
        • Former when you’re discussing principle. Latter when you’re talking about things that you just need to compromise about.
      • He then says: you’ll get a different mix of arguing and bargaining depending on whether you’re deliberating in secret or in public.
        • The idea is that if your deliberations are conducted in secret, you can get much more bargaining than if deliberations are conducted in public. In public, you have to pretend to or actually act on principle.
        • In private, you actually can cut a deal. And then you can go public with the deal and offer a principled justification for it – make something up – dsn’t have to be what you said behind closed doors.
          • e.g. The Federalist Papers – presented by us today as very astute discussion of principles of Const. – are just propaganda designed to sell to public a set of deals that were made behind closed doors. Particularly claim, it is said, re: perspective of Madison, who lost a lot of stuff that he thought was really important in Convention, then writes in Fed. Papers as though Const. were perfectly designed (even tho he thought this in private).
  • Final points:
    • When you think about compromise v. principle or bargaining v. arguing, T./Jackson asked as one of their final exam Qs: could you ever have a Const. of principle?
      • The answer to that is almost certainly no. There will have to be compromises made in a complicated society.
      • So, to the extent that Osetinski (re: Poland) says there was too much compromise, not enough principle, he seems wrong.
      • On the other hand, some of the compromises you reach might undermine some of the principles that you hold.
        • e.g. 3/5 Compromise – essential to get agreement on the Const.: if you wanted to have a Const, this was a deal that you had to make: Southerners wd’ve walked away if they didn’t get a compromise on the slavery issue – even tho slavery is inconsistent w/ principles of Decl. of Indep. – which even Southerners acknowledged at the time. (Tho by Civil War period some denied this.)
        • or: transitional justice questions. e.g. you have a military junta that has behaved brutally for ten years, you’re about to get rid of them, and they say: we still have enough guns to cause a lot of trouble – and if you want us to go, you have to promise us that you won’t punish us for what we have done.
          • T: open Q whether there’s any solution to this problem.
          • if you read the transitional justice material, it turns out (overstating the issue), the amnesty/immunity kinds of deals work for a while – 5 years, 10 years after the junta has been thrown out, there’s agitation for punishment, but punishment actually dsn’t happen – and then, at some point, the deal unravels (democracy has been established long enough, the principle of HR becomes embedded in the society also, the tension of not punishing violators becomes unsustainable – sometimes domestically, sometimes b/c of international institutions who come in, etc.), so 20 years later you get efforts to punish – e.g. just today in NYT, first day of a trial re: killing fields.
          • so: interesting Q: if you’re a military junta and know this history, what do you do?
    • Also: any way to get around the problems re: crisis?
      • NY Const. has interesting provision: says that every 20 years, there must be a referendum on calling a Const. convention – so if the Const. seems gradually to be not working, you’re guaranteed opportunity to rethink the Const.
        • The last time NYerks voted favorably for such a convention was ~1969 – and T thinks they convened a convention, which proposed resolutions, which were then put on ballot and defeated.
      • Jefferson thought the Const. shd sunset after some number of years.
      • The problem is: crises, by definition, don’t occur on a timetable.
  • Three things:
    • 1. the consent and legitimacy point
      • The concern raised is that Murphy’s formulation looks ethnocentric, an Enlightenment formulation.
      • Murphy claims, and T thinks a lot of people have the intuition, that the legitimacy of a Const. (the authority it has over us) depends on consent to the operation of the Const.
      • Be careful about unpacking this: the first point is – putting aside some minor details – when a Const. is adopted through some consensual mode, like the referendum, then its claim to authority over its subjects makes sense for those subjects who participated in the adoption process. (There are ways of dealing w/ those who disagreed with it, even.) SO: Consent will legitimate for the founding generation.
      • The problem is: Why does Const. adopted generations ago have any claim on us today? This is the concern motivating this discussion.
      • When T posed this Q to students in Singapore, they said that for contemporary Singaporeans, the Const. had legitimacy – could make claims on them b/c it worked really well, was generating a lot of material well-being.
        • So one possibility is that a Const. makes claims to authority that we should honor if it’s working reasonably well, whatever that means.
      • SO: Start out with consent as a source of legitimacy 
        • 1. Relatively easy for founding generation: explicit consent. But after then, what do you do?
        • 2. T: Perhaps another basis for consent is that the system works reasonably well. (Singapore)
        • 3. Murphy: The notion of “consent” requires that what is being consented to shows respect for human dignity, moral autonomy. (me: doesn’t work logically – Kantian nonsense.) (So the Singaporeans aren’t really talking about consent in Murphy’s terms. They might say, did say, w/ cynical overtone: we have notion of groupautonomy.) (Murphy’s ideas tied to Enlightenment-type ideas.)
          • me: looking back at Murphy: he’s placing a limit on context in which consent can legitimate a Const.: if a people consents to a Const. that doesn’t respect human dignity, the Const. still isn’t legitimate – only “consent + respect for human dignity” works – they have to be moving in tandem.
          • me: Singapore really calls into question this idea: they can vote for the opposition party – it’s just that the opposition party loses, gets 20-30% all the time. (The leadership justifies everything through attention to group autonomy: there are a variety of distinct groups, and we want to be attentive to their terms.) And the Internet isn’t so restricted. Print media have to have gov’t on the board. Also, areas supporting opposition get less gov’t support. And when Chinese candidate posed threat, they used libel law to bankrupt him, bankrupt people are ineligible for office, he had to go into exile. Leading opposition politician was BJB – sued, bankrupt, waited out ineligibility, ran again, almost bankrupt, etc.
    • 2. Holmes/Sunstein’s argument re: ease of amendments (b/c this is relevant to the issue of designing courts)
    • 3. what people think about Jacobsohn’s argument

Mon, we’ll turn to issues of Constitutional entrenchment – return to #2, 3 above

***

  • Holmes and Sunstein: what Const.s shd say about the amendment process
    • note that H & S talk about a lot of other things as well
    • a fair amount of what they say on the other issues is either wrong or overstated, less interesting (and a cert. amount of internal tension)
    • but what they say about the amendment process… good
  • T: The most interesting part of their arg.s: consider in C & E Euro a nation that has had a significant and reasonably long period of governance by a dictatorship or strongly authoritarian regime, which has now experienced a transition to democracy. What is the political character of the people of that country, and what’s the relationship btw that char and institutional design, esp. re: amendment?
    • Could have relatively easy or relatively difficult amendment process
    • What the Const. does (as S said in earlier reading) is take some issues off the table – to settle some aspects of the nation’s governance
    • If we then imagine “Const.” as small carve-out from realm of “Politics”:
    • Their political char is that they’re not experienced in self-gov’t, but they need to be: so that you have to set up your system so that people will engage in ordinary politics in a way that they were barred from doing under the authoritarian regime. This means the permanent domain of the Const. settlement should be relatively small.
    • SO: You should have a relatively easy amendment process.
    • Recap: A difficult-to-amend Constitution will perpetuate the attitudes toward politics that were encouraged or instilled during the authoritarian period – the attitude that there wasn’t much you could do about politically significant matters
      • under auth. regime, it was b/c rulers wd do it for you/to you
      • w/ difficult-to-amend Const, it’s b/c the Const has taken it out of your hands
    • THEN they retract a whole bunch of that and say: you shouldn’t make basic property rights etc. etc. easily amendable
  • T: So what is our response to this obvious tension?
    • One objection: they aren’t sufficiently comparativist (you can see this in a lot of his stuff on non-US subjects) – for Const. provisions to be meaningful, he says, they have to be judicially enforced. BUT: T: that’s clearly not true of aspirational provisions. (That’s the whole point of their being aspirational.)
    • T thinks the sensible part of the argument is the first part; the second part is weaker – unless we add “core IHL guarantees with a margin of appreciation” – explanation of these terms being:
  • T: Sidenote: There might be an important intersection here btw domestic Con Law(what we’re concerned with) and Int’l HR law. Re: latter, you might take the position that IHL provides a baseline of guarantees that must be recognized and that that baseline is reasonably small.
    • Note: “the margin of appreciation” captures this idea: you’ve got to have the fundamental institutions of electoral democracy. But you can also have what’s called “institutions of militant democracy,” meaning (in this context) it’s okay to ban from the ballot parties whose programs, if adopted, would be fundamentally democratic. You don’t have to do this. But if you want to, you can. We’ll give you a “margin of appreciation” depending on your local circumstances. So (in different language, you might say) in Israel, political parties have been banned from the ballot on the ground that their programs are inconsistent w/ Israel’s dual commitment to being Jewish and democratic state. (So anti-Zionist have been banned; and anti-Arab parties have been banned.) (v. in US it wd be inconceivable to ban a party on similar grounds – and the reason is, the circumstances are different – we give a low margin of appreciation)
  • T: It may be more important to guarantee political stability early on, so that people will know the benefits of peace. A compromise that was unstable at the beginning might become stable over time – at which point, you can place it back in contention. At that point, tweaking really will be tweaking, won’t call the whole thing into question.
  • So: the model would be: early on, you must have a fairly large “constitutionalized” area, fixed – and later on, once you’ve got constitutional citizens, it’s okay to shrink that area, allow more contestation.
  • Note: student: a poss arg in favor of H / S approach: judges may not be trusted, so the less control you give them early on, the better
  • Sidenote: what are the mechanisms of Con change?
    • Con. amendment
    • express alteration of the text pursuant to some relatively formalized procedure
    • Ackerman’s New Deal as a “con moment” (a con transformation that is not memorialized in the Con text)
    • judicial interpretation (or reinterpretation) of the text
    • Con workarounds (e.g. the Hillary Clinton problem – you use one part of the text to overcome another part of it, and no one is bothered)
  • Sidenote: over the past generation (since 1980, say), there have been 2 great constitutional innovations:
    • 1. “the new commonwealth form”
    • 2. not widely used, but incredibly interesting and smart innovation: to have a domestic constitutional court w/ non-domestic judges on it (Bosnia-Herzegovina)

3 sections to the chapter –

  • Constitutionalism w/o a Con – GB:
    • that’s the classical British system – tho, over the last two decades, there have been substantial changes in the Brit constitutional system, to the point where the classical model may not fit GB anymore
    • the clasiscal model was: Parliamentary Supremacy (= in the end, Parl. has the legal power to do anything the present-day majority wants to do)
    • BUT: T: it’s worth noting here that there are ways of injecting constituitonalist concerns into a system of Parliamentary supremacy:
      • you can say, for example, that the court will not interpret an arguably ambiguous statute to authorize substantively questionable action;
      • or you can say: if an executive authority engages in a substantively questionable action, that is lawful only if it’s done pursuant to express legislation.
    • SO: even in a system of Parl.y supremacy, there are ways of getting Con.ism into the system
    • BUT: if you get it into the system by these stat. interp. modes, or the “ultra vires” (executive authority) approach, Parl. can then squeeze it out by making the statute clear or expressly authorizing the Exec. official to do these questionable activities
    • Illustrations:
      • the statutory interpration approach: the canon of stat interp that says: yo ushd construe statutes to avoid con qs
      • the ultra vires approach (what Brit “con law” was until relatively recent) (a Brit “con law” text until recently wd’ve been entirely about ultra vires): T’s favorite example of this approach comes from Netherlands – Dutch Con has a full-scale B of Rts, and also has a provision saying: none of the provisions of this Const. can be enforced in any Dutch court – express denial of judicial review (ftnt: says treaties can be enforced by courts – Euro HR treaty thus means they can already do a lot). Then case: somebody suspected of transporting drugs, he’s locked up on suspicion that he’s ingested a balloon and placed under 24-hours-a-day visual surveillance, with expectation that at some point he’ll excrete the balloon, at which pt they’ll have the evidence. The Dutch Supr Ct (has odd name, not Supr Ct) holds that a 24-hr-a-day vis surveillance of people inpolice custody isn’t authorized by Dutch law, so this observation was unlawful. (He did excrete the stuff, and they said: you can’t use this in criminal trial.) BUT they say if Parl authorizes this, that would be okay. The only problem was that there was no statute authorizing the action here.
    • Note: Dworkin’s criticisms of liberty in GB more or less accurate – but the notion that liberty was gravely ill before 1990s is not right – it was a constitutionalist country w/ some substantive problems.
    • How do you get to be constitutionalist in a world of parliamentary supremacy?
      • You have substantive rights that are to some degree entrenched, but not by legally enforced rules – rather, by constitutional conventions, which are taken-for-granted ways of behaving that are enforced not through law but through politics and social pressure.
      • Substantive conventions:
        • 1. A politician will accuse another’s bill of being anti-constitutional – and that’s how the debate will go – and often enough the bill will be defeated as anti-British, not the kind of thing we do here.
      • There are also structural conventions:
        • 2. cabinet responsibility: if a gov’t designates an issue as a “confidence” issue and then loses a vote, it will resign
          • it used to be the case that if govt presents a bill and lost on second reading, they’d resign – but they don’t do that any more
        • 3. ministerial responsibility: the minister in charge of a dept. is responsible for everything happening in the dept.
          • e.g. in Singapore the police had arrested a leading member of a terrorist organization, and the police under charge of Minister of Pub Sec locked the guy up – but not very well, b/c he walked out – so the minister resigned – even though he had nothing whatsoever to do w/ the particulars of the mistake.
          • (but this too has changed in GB recently)
    • Problem: it’s really hard to have conventions that deal w/ especially rare situations
      • e.g. in Canada you cd say that the Queen’s rep., the Governor Gen., does not intervene in politics.
        • But then in Australia in 1970s, or last year in Canda, something happens that hasn’t happened before: In Austr it was failure of Senate to agree to a budget for the nation. (The convention was that the Senate doesn’t have a role – it just rubber-stamps budget.) The Gov Gen intervened, dismissed the PM, appointed PM from opponent party. Is that a violation of the convention? Well, it hadn’t happened before! So who knows what the precise def of the convention is?
        • In Canada last year, PM was faced w/ situation where were Parl to reconvene, there wd’ve been a vote of confidence that wd’ve thrown the PM out of office. And to avoid that, the PM went to the Gov Gen and said: I want you to pro-rogue (?) Parl. for x months, so PM cd regiger gov’t to avoid vote. Gov Gen did it, it worked – did this violate the convention? Again, just isn’t clear.
    • Another problem: the “taken for granted” can change – as it has in GB
      • Bogdanor talks about cabinet responsibility (and they edited out what he says about ministerial responsibility – it’s just no longer true that minister is responsible for everything happening in their dept. – with respect to other things, the convention is now that there’s an investigation, and if it dsn’t asign responsibity to minister, minister is home free)
      • And: it’s probably no longer true that GB has tradition of Parl. supremacy
        • accession of GB to EU, incl. rule that EU law is directly enforceable w/in GB’s domestic ct.s – meaning: Parl. passes a law, the law is challenged as inconsistent w/ EU rules, EU Ct of Justice says it is, the EU decision is then enforceable in British courts.
    • Theorists worry: cd Parl repeal accession to EU? or enact a reservation to the treaty? and if it did, wd that be effective?
      • Judicial enforcement of conventions: domestic courts in several EU jurisdictions have taken the position that they are authorized to hold domestically unconstituitonal EU rules that are “fundamentally” inconsistent w/ the domestic Const. They say they have authority to do that. In GB, if Brit cts took that position, it wd be a judicial ruling enforcing the convention of Parl. Supremacy.
      • One basic principle of Parl. Supr. is that Parl. at time 1 can’t make a decision binding Parl. at time 2. So: say Parl. at time 1 goes along w/ EU treaty, goes along w/ courts’ decisions. Then it passes a decision that is in conflict w/ EU decision. What happens?
        • What the Brit cts actually do is struggle to interp the time-2 statute to be not-inconsistent w/ EU law.
      • Student: there’s really no issue here. There’s a lot of academic writing about this. (B/c lacking a Const., they have nothing to write about.) But actually the EU treaty defines precisely what to do here, it’s perfectly clear.
    • One final point on the judicial enforcement of conventions: usually, it is said that conventions are not judicially enforceable, and one reason is that, as conventions, they’re not textualized – so it’s hard to figure out how a ct cd enforce a non-textualized convention
      • an e.g. from Canada: the secession of Quebec: gov’t can seek advisory opinions from Canadian Supr Ct. After last round of votes on secession, where it was defeated on extremely narrow margin, the gov’t sought an opinion on Qs incl.: was it constitutional under the Canadian Const. for a province to secede unilaterally? The Canadian Supr Ct answered that Q saying no (relying on the text of the relevant enactments.) As a textual matter, the analysis is pretty straightforward and pretty compelling. They then went on to say (tho gov’t didn’t request this!): there is a convention in Canada that if a province votes “decisively” to secede, nat’l gov’t is then under obligation to negotaite in “good faith” w/ province over the terms of the secession. (T: this wd be a very difficult negotation! The nat’l govt has invested a lot in Quebec to keep it in Canada…)
        • Q: Where does this convention come from? Well, they made it up. Comes out of Canada as a free dem society w/ provinces, etc.
        • What’s interesting for our purposes is “decisive vote.” Suppose another vote prevails by 52-48%. Somebody says: nat’l gov’t is not under obligation to engage in good faith negotiations. What does the ct do? It’s very puzzling, since they made up the decisive majority rule.
        • What happened in Canada, in the end, is that the nat’l govt after this secession vote introduced the “Clarity Act” to give clarity to this process – giving a lot of detail re: what counts as “decisive vote,” etc.
        • Fortunately, Quebec independence is now very much not a priority.
    • T: in some circ.s, allowing for judicial enforcement of the B of Rts means a displacement of a reasonable judgment by Parl of what “freedom of expression” means by a judgement of the courts – hard to me to see why they shd be able to do that – in Qs of the correct interp of abstract B of Rts provision, where there’s room for reasonable disagreement – hard for T to see why the ct’s interp. shd prevail over that of the legislature.
    • T: Given commitment to Parliamentary Suprmacy, why bother to entrench a B of Rts? The answer is going to be: b/c you think that doing so will have some actual effects on legislation that will be adopted. Some of those effects are perfectly consistent w/ commitment to Parl Suprem (such as: it will make people think more about con.’l effects), others are not (unreversable judicial itnerp.s of B of Rts)
      • that’s why these weaker-form things are interesting: they’re efforts to reconcile Parl Supremacy w/ some role for the courts
      • just a ftnt: “ultimate interpretive authority in the courts” = until displaced by a Const’l amendment
  • Entrenchment … (missed) – Canada
  • Entrenchment w/o a Con. – Australia

***

VARIATIONS IN THE DEGREE OF ENTRENCHMENT OF CON. PROVISIONS

  • Note: a relation between this and Con. amendment rules
  • Different ways in which courts can serve as enforcers of Con. provisions
    • e.g.: if you have very strong judicial supremacy, everyone agrees that its interp. of the Con prevails, once it has spoken – members of leg. believe that they wd act improperly if they crit’d decision, etc.
      • though there are of course qualifications to this idea
    • BUT: the Const. Amend. rule may be that 50%+1 of Parl. can amend the Const. – in that situation, the fact that the court has interp’d the Const. has no particular significance – if a majority, even a slim majority, disagrees, it dsn’t have to confront the court – it can just amend the Const.
  • So, at some level, there are two dimensions to the significance of courts re: entrenchment:
    • one axis: Amendment rules, running from very easy to very difficult
    • other axis: the strength of judicial review, running from weak to strong
    • (example above wd be very strong jud rev but easy amendment rule – with result that former becomes not that significant)
  • T. confesses to having made relatively little progress re: what you could say systematically about this graph: i.e., what to say about a system in which there’s very difficult amendment procedure, very weak judicial review
    • possible paper topic
    • [me: useful topic to think about when preparing for/doing exam]
  • Weak to Strong Judicial Review:
    • US jud rev: very strong
      • both US and non-US students often have an image of US jud rev as the appropriate model
    • Terminological point: the article that did the most to identify this continuum: the Gardbaum article excerpted in book – which describes stuff toward weaker end of continuum as the “new commonwealth model” of jud rev.
    • T: Gardbaum is clearly right in saying that we see the development of these forms in commonwealth nations. But is there any relation between the British commonwealth and these models? Any intrinsic connection? T. thinks it’s hard to see. The connection is, if anything, historical: moving from Parl. supremacy trad. to some form of judicial review. (So questionable to call it the “new commonwealth model.”)
    • Types along this continuum:
      • weakest: New Zealand Bill of Rights Act:
        • (has substantive components: no double jeopardy, etc.)
        • 1. Ministerial obligation: says: when the govt’ minister introduces a bill, he must make a statement that the proposal is compatible w/ this statutory bill of rights – but if minister says: no, it’s not compatible, but we think it’s a good thing, and we’re going to enact it anyway – in that case, the enactment stands! even though everyone agrees it violates bill of rights
        • 2. Interpretive duty: says: you shd interp. bill so as not to violate bill of rights. Strength of this duty is disputed. Three variants: suppose the minister says the provision does violate the b of rts protection against e.g. double jeopardy, but we think public safety requires it, and then bill passes: what to do?
          • a. court says: we’re not going to do anything unless there’s an express repeal (?)
          • b. using trad modes of stat interp, we’re left in state of interpretive ambiguity; in this state, we must favor the interp. that avoids a violation of the right
          • c. most interesting option, great deal of controversy: using trad. methods of interp. (leg. hist, purpose, canons of stat. interp. etc.), you come up with an interp that on balance results in a rights violation – but it’s close. The question about which there’s great controversy is: once you’ve reached this conclusion, does the interp. duty come into play at all or make a difference?
            • image that T finds useful: think of scales in a balance – using trad. methods, the “rights violation” interp. loses out to the “no rights violation” interp. Does the court stop there? Or can we use the interp. duty to put a thumb on the scales, tip the scales?
            • so: in c., versus b., the interp. duty is an independent weight, versus just a way of choosing between equally valid options.
            • the peculiarity of c.: court is saying: from all we can tell, Parl. has violated your rights, it’s allowed to do so, but we’re going to override that anyway, because of our interp. duty to avoid rights violations.
        • In an ordinary case, the ct will interp the statute and what they shd say at most is: this is a valid statute with the following effects, you lose – they should not say: this is a statute that permissibly violates your rights under the B of Rts act. B/c in latter case, all they’re saying conceptually is that Parl has repealed the B of Rts with application to your case.
          • e.g.: After a criminal bribes a judge to get innocent verdict in drug case, Parl. passes a law saying: if you’re convicted of bribing of judge, you’re sentenced for original crime. Criminal convicted. Goes to NZ high ct, says: my double jeopardy rights violated.
            • Under NZ system, they’re not supposed to declare that the new statute is inconsistent w/ B of Rts Act – not supposed to declare a new statute incompatible w/ a B of Rts.
            • b/c conceptually the new statute just wipes the B of Rts Act here off the books
      • stronger jud. rev.: UK Human Rights Act (1998)
        • Also creates an interpretive duty to interp. acts as not violations of Euro HR Convention
        • Court has three options: (the three options carry over from NZ above)
          • 1. Ministerial Obligation
          • 2. Interpretive Duty
          • 3. Declare incompatibility
        • Legal effects of Declaration of Incompatibility:
          • 1. declaration of incompatibility has no immediate legal effects – which creates weird incentives:
            • so govt ends up wanting the statute declared incompatible, rights claimant dsn’t
            • rather: rights claimant wants ct to say: this is an ambiguous statute, and it shd be interp’d (under interp. duty) so that it dsn’t violate Euro HR Convention
          • 2. unique part of UK system: once court declares incompatibility, the minister in charge of the activity is legally authorized (but not obligated) to rewrite the statute to make it compatible. What’s special about this is that the minister can do that on his or her own, dsn’t have to wait for Parl to enact the statutory modification.
            • there are limitations on this, tho: Minister must say it’s urgent, and Minister has a duty to introduce legislation to get Parl. to write into law the statutory modifications that the Minister has him or herself written
            • but for some period the relevant law/statute is one that is written by Minister
          • 3. there’s an expectation (convention) that government will abide by the Declaration of Incompatibility
        • Note: all along the HRA was project of Labor, which has been gov’t since it was enacted – and now there are grumblings that it hasn’t turned out like they hoped – and if Conserv.s win next election, might very well come off bks or be radically revised
      • stronger jud. rev.: Section 33 (the “notwithstanding clause”) in Canada
        • what’s different about Canadian system: court’s (“declaration of incompatibility”) (“unconstitutionality”) is legally binding – claimant walks out of courtroom
        • BUT: override: the incompatibility can be overcome by a simple majority vote for a five year period (five years is relevant b/c there has to be an election of Parl. in any five year period, so if people are upset by use of override, it can become an electoral issue) (Canadian Supreme Court has also said these can be renewed)
          • tho: not clear that this would work retroactively – e.g., criminal let out on double jeopardy violation, Parl. passes bill, can it prosecute the guy again?
      • strongest: US jud rev: off the continuum from weak to strong, e.g. Sect. 5 of the 14th Amendment: CITY OF BOERNE says Congr can’t use its Sect. 5 authority to override a judicial interp. of Const. – all it can do is operate in some complicated ways around the edges
        • (tho earlier Katzenbach v. Morgan, which did suggest an independent interpretive authority for Congress)
          • possible problems you might have with KATZENBACH: the one-way ratchet problem: [odd to say that Congr. can expand but not contract – we can’t count on adjudication sorting out the difficulties, b/c sometimes … missed… if Congr is source of interp. authority, it can … (missed)]
          • e.g. of ratchet problem: counterfactual: suppose that Supr Ct says (as in SHERBERT) that when a state law imposes a signif burden on the free exercise of relig, that burden can be justified only by a compelling state interest – and then Congress examines experience under this rule, and concludes that a better interp. of 1st Amend wd be that free exercise is never violated by “neutral laws of general applicability” (so Congress adopts SMITH rule as an interp. of 1st Amend) – and then that’s challenged: what happens?
  • T: The wisdom of the weaker forms of judicial review:
    • What does the ministerial obligation do? (T: an extremely interesting mechanism – any way to adapt it to US? Prof. Vermeule has proposed creating a “Congr. Office of Const. Issues” and changing rules of House and Senate to flag Const. issues and get improved deliberation. T: an example from stimulus package, which contains provision saying governors have to certify their acceptance of stimulus funds – provision 1607a – and 1607b says: if governor dsn’t certify, acceptance by legislature will count – which raises a Const. Q: not difficult, maybe, but: can Congr tell a state that it can organize itself in one way rather than another? e.g., if legislature accepts $ and governor vetoes, can Congr. ignore the veto? and the pt is: it would be nice if Congr. had considered this question)
      • brings focused attention to Constitutional matters, in addition to debating the policy of the statute – the minister has to say: I’ve had my lawyer look at this, and even tho we got letters from HR NGOs, my lawyer says it’s okay
      • there’s also been an emergence of a pattern of using HR legal argumentation (e.g. argument recently re: 28 day pre-charge detention of terrorist suspects, govt considered extending to 40 days – opponents commissioned legal opinion from HR barrister in UK)
        • T: v. Al-Marri in US, 7 yrs and counting… weird that 20some days are being debated so intensely
    • Institutional design question: where do you locate the rights-vetting process?
      • here: Where does minister get advice from?
        • 1. you could have a rights-vetting unit within the ministry
        • 2. you could locate it outside the ministry, e.g. in the ministry of justice, or in NZ in AG’s office
      • What are the consequences of this choice?
        • 1. will be biased in favor of finding compatibility, b/c boss of chief counsel is the minister, who wants this program
        • 2. if you locate it outside the ministry, you reduce that bias, but another thing happens which turns out to be extremely interesting: the PM gets a new way of controlling the govt’s agenda 
          • e.g. locate it in DoJ or AG’s office, and what happens is: the PM says to AG: “My housing minister wants this program, I don’t, but I’m not going to tell her that [the housing minister for whatever reason has indep. sources of pol. power] – so if you tell her it’s incompatible, I won’t have to”
        • 2. Another thing that happens with these offices: they have an interest in finding constitutional objections. If they keep finding no incompatibility, week after week, they’ll wonder: what’s the point of what we’re doing? Their job is to find objections.
    • A final note on ministerial obligation: there’s almost always a statement of compatibility. (They don’t want to say: Yeah, we plan to violate Euro HR Conv.) T knows of only one situation in which minister introduced statement and said he had been advised by staff that bill he’s introducing was incompatible w/ Euro HR Conv. as interp’d by Euro Ct of Justice – and he said: we’re prepared to litigate that in Euro Ct of Justice. (A campaign finance case.) [Swiss similar situation: and they said: if we lose in Euro Ct, we’ll withdraw it from the books.]
  • Final note: advantages/disadvantages of legislative override of judicial review:
    • In Canada, the override has been very rarely used – the ordinary # given is 2 (tho one study says 15) out of 27 years – either way, pretty small.
      • so it seems that there is political pressure against rejecting the ct interpretation
      • then the Q is: is that a good thing or a bad thing?
        • in US, BOERNE says: it’s a bad thing (you don’t want political resistance to ct interp.s)
    • Note: Sect. 33 says “notwithstanding the Charter” – which suggests that you’re repudiating something in the Charter
      • what makes this interesting in our context is that the override isn’t used to override the Charter but to override a judicial interp. of the Charter
      • what you want the provision to say is: when we invoke Sect. 33, what we are doing is disagreeing not with the Charter but w/ the Ct’s misinterp. of the Charter – thus, a conflict not btw Parl and Charter but btw Parl and Ct.s
    • if a leg. is able to disagree w/ ct.s but only does it occasionally, that might actually enhance the legitimacy of jud decisions by suggesting public agrees w/ all the other decisions
    • good stu pt: also, given that cts are alive to political conseq.s of decisions, allowing a leg. override might encourage them to make more principled, unpopular decisions, trusting in leg. override
      • T: Canadian Supr Ct judges have said: one advantage of leg. override is that it emboldens us – b/c we know we can follow principle, and then Parl. can follow what is popular
      • that story made a certain amount of sense for a decade and a half, but not any more, now that Sect. 33 use has withered away
    • the article we read about leg. override creating dialogue between institutions, and that’s a good thing

LAST CLASS

  • Re: Declarations of Incompatibility – after revieiwng doc.s: gov’t has never gotten a declaration and then affirmatively said: we’re not going to change the legislation despite this

TODAY

  • British and Canadian experience raised Q: What benefits are there to a “weak form” review system?
    • and in New Zealand, which has weakest form of weak form review
  • The problem: 2 poles in the discussion:
    • One (people coming from US-type experince) assert that weak form review is too feeble – dsn’t accomplish anything, b/c a govt. can simply disregard or routinely override what the ct says is impermissible – so it dsn’t accomplish anything
    • Other (T.’s suggestion in his excerpt, and that Brit experience may support) says: in practice, there’s really no difference btw weak form and strong form review, b/c former turns into latter – the political culture makes it impossible for a govt. to invoke the override (for example) – e.g., the routine agreement w/ the court’s Declarations of Incompatibility in GB means in effect that the ct.s are excercising strong form US-style review
      • anecdote from Canadian experience: political observers in Canada regarded as a desparation move: the Liberal cand for PM said that if returned to power, they’d “perfect” the Const by removing Sec. 33 – by removing the override power. One reason he said this: in Alberta, the premier of the province had said: the ct has declared inconsistent w/ the Charter a particular statute, so I plan to introduce override legislation – there was a huge explosion about how improper this was, and he immediately retreated. One of the deep concerns in Alberta had been about use of override re: var. gay rights issues. This guy was associated with Harper’s party. Harper was Liberal’s opponent. Liberals said: we can take this off the table by getting rid of Sec. 33. Harper said: Sec. 33 is valubable, and I don’t plan to use it re: gay marriage. And then Harper was narrowly elected.
      • The significant part of this: in Canada, the only serious discussion of use of override is on gay rights – and conservatives have disclaimed ever using it on that issue.
  • Another extremely influential perspective (Hogg and Bushell in reading; Hogg is the Larry Tribe of Canada; court has even cited this article as an explanation for and justification for finding things inconsistent w/ Charter): weak form review encourages dialogue between legislature and judiciary. Better than US-style strong form review b/c court’s decision becomes law, no dialogue.
    • T: the core image you have to have here: they haven’t used the override, but what they have done is: come back and use the “general justification” clause:
      • the rule: limitations are permissible if they’re demonstrably justified in a free and democratic society;
      • leg. passes bill
      • court says: you haven’t provided an adequate justification;
      • authors say: sometimes, the leg. is for all practical purposes reenacted w/ more justification,
      • and ct. says: now you’re demonstrated that it’s justified
    • Or: leg. inadvertently goes too far – court says: you’ve gone too far – Parl. says: you’re right! we didn’t want to do that – so we’ll tinker with it, fix it – Hogg and Bushell say: that’s an example of productive dialogue: legislators don’t always think about Con. issues, ct can inspire them to do so.
  • Response to Hogg & Bushell from Manfriedy & Kelly (former like judicial activisim; latter don’t – as in US, this is the main split in Con Law scholars) – they say: look at the examples, you see no instances of truly productive dialogue. What you see is court getting its way, just as it wd in the US.
  • Sidenote: weak/strong review dimension interacts with the ease of amendment dimension
    • Student: if you have an important issue of Con Law, there will be a dialogue in the society about that issue regardless of the form of judicial review you have
    • T: consider tho gay rights: big dialogue in society about it – two options:
      • Parl enacts a statue allowing gay marriage;
      • or courts intervene, saying absence of gay marriage violates equality provisions of Charter
        • and imagine that Parl. does nothing
    • the question is: what are we to make of the fact that there was no legislative response to the court’s move? It cd be, as Scalia wd say in US, that the ct is imposing a solution in favor of one side in the culture wars, and it’s effectively a strong form system, and opponents are just resigned to this. OR: it cd be that the ct is just ahead of where the society is re: equality. W/o intervention, say, the Parl. wd’ve passed a statute in 5 years anyway.
      • like Bickel saying: the ct’s function is to predict the future (T. says he’s misquoting, but this is how he remembers it)
  • Perhaps examples of dialogue in US?
    • in 1950s, Court ruled in favor of subversives on “Red Monday” – Congressional outrage – soon after, several apparently similar cases came up and ct ruled the other way – caved?
    • Nixon ran in 1968 on appointing tough on crime justices – and then he did, and they whittled away Warren Ct decisions
    • versus: joint opinion in CASEY – “retreating under fire wd undermine legitimacy of the Court or of the Const.”
      • Q: does notion of dialogue weaken the notion of the Const or of the courts?
      • T: note: this is one of the weaker part of the opinion
      • note that the Canadian phrase is “notwithstanding” the Charter – so does override undermine the moral authority of the Charter?
  • The question is: Would we have been better off with a more formalized dialogue, versus these indirect forms? What would effects have been? Wd this have undermined the moral authority of the Const? Of the courts as interpreter of Const.? Or should we not worry about this?
    • THINK THIS THROUGH – great subject of thought for this course
  • (T. skipped discussing BOERNE for reasons of time, tho he had planned to do so)

AUSTRALIA

  • What’s interesting about what happened in Australia is that the ACTV case opened up a mode of analysis in Australia that has now basically been closed down. It was an episode in Australian Const. Law which probably has ended: creating entrenchment out of thin air. Australia has a written Const., but it dsn’t have (for all practical purposes) a substantive bill of rights. There is for reasons that no one understands a non-establishment clause in Const., and that’s the only one.
  • ACTV case: Congr. passes a statute regarding political campaigns that will plainly have the effect of entrenching the existing major parties. (Minor parties just won’t be able to get access to TV time under new rules.) And this occurs in a world where there is some fluidity about the creation of new parties – Green parties, nativist party – so people come to court and say: how can this be consistent w/ ideas of political fairness?
  • Australian ct says: there’s something wrong with this, how can we get a handle on it?
    • 1. They cd infer Bill of Rts-type protections – i.e., say: if you have a Const., you’ve got to have certain kinds of indiv. liberties. Constitutionalism requires some kind of indiv. liberties.
    • 2. OR: and this is what majority says: they tried to textualize that idea, say: Australian Const. defines Australia as a republic. If you’re going to have elections in a republic, the elections have to have fundamentally fair features. E.g. a right of political expression – and that’s violated by this campaign law.
      • T: interesting move – you can imagine this going quite far
      • efforts to extend it to cover libel of political figures – Australian high ct. went along with this a little, then pulled back
      • efforts to extend it to distrbiution of pol leaflets – Ct refused to find a Const. rt. here.
      • So: the rt of pol expression in Australia is quite limited
  • T: as said, the episode is pretty much closed – except for one point: this episode occurred in Australia when the High Ct was staffed by a mixture of judges appointed by liberals and conservatives (tho “Liberals” are the conserv. party in Australia – ignore) – then there was a period of 10 years of conservative govt. under John Howard. And JH made (notorious speech) saying that in light of what the High Ct had been doing, he was going to make sure that the judges appointed to it wd be “large C conservatives” (politically sympathetic to him) – and he did, and 10 years was enough to change the composition of the court. So the episode closed.
    • BUT: Howard lost 2-3 years ago, and there’s now a liberal PM, who is expected to appoint liberal judges – so this episode may open up again.
  • Note: one reason they end the ch w/ Austr material is that it’s related to earlier discussions of Const.s and con.ism – Aust. experience suggests another disconnect btw these two:
    • we saw in case of China cases where there were Const.s but no con.ism – “sham Constitutions”
    • here, you see a case of no Const. provisions dealing with the issue, but con.ism creating some impulse to find rights anyway – if your document dsn’t do it, the ct.s may create it anyway

STRUCTURES OF JUDICIAL REVIEW

  • A number of topics in this chapter, we won’t get thru ch. this week. Here are the 4 T has ID’d for today and tom:
    • 1. the appointment processes
    • 2. centralized v. decentralized review
    • 3. concrete v. abstract review
    • 4. “political explanations” for judicial review
  • 1-3 are hard to disentangle.
  • 1. APPOINTMENT PROCESSES: When designing a Const. ct., you have to figure out how to staff it. There are two dimensions in particular:
    • a. how long the judges are going to serve – what the terms of office will be
      • figuring out what terms of office there’ll be involves striking the balance btw judicial indep. and some degree of accountability to the public over some extended period (latter clause to indicate: not the same kind of accountability that a legislator has – so, everyone agrees: at the very least, the terms for Const. ct. judges have to be very long, relative to elected member of Parl. – b/c you want them to be independent)
        • ftnt: this interacts with the amendment process as well
        • if it were easy to amend Const., it wdn’t matter if judges cd stay on really long
        • the more difficult the amend. process is, the more consequential the length of term is
        • T: so US system is not a good one – life tenure is too long – and now people know that this gives incentive to appointing authority to appoint very young judges – with result that they become completely out of touch by the end. They are appointed under conditions that inevitably, substantially change under conditions that no longer exist at the end of their terms.
          • T sometimes uses following example: US Supr Ct more or less regularly, 1-3 years, hears case re: elementary/secondary public education
          • Stevens, who is 89 years old, knows what elementary/public educ. was when he was in school, in the 1920-30s, whatever – (and even the younger ones send their kids to private school, so they don’t know either! but that’s diff. issue)
            • against what T just said, Stevens wrote an opinion a while ago about a high speed auto chase in rural Alabama – saying basically when I was a teenager, I drove on roads like this (you only know interstate highways!) and it wasn’t as dangerous as you think
            • in another opinion, notes growing up under Prohibition
        • the worldwide judgment focuses on 12-15 year terms
          • another consideration: what will they do after they’ve finished their terms?
          • Germ. prohibits them from practicing law – you don’t want somebody to trade on his/her exper. as Const. Ct. judge to make money afterwards – in particular, there’s a “last-period problem” (game theory term): in last 3 years, judge may shape opinions to make him/herself more attractive to clients
          • So: they can teach and (he thinks) engage in Int’l Arbitration
          • T: so suppose you have 15-year terms and mandatory retirement age of 70 and restrictions on post-service employment: you’re going to be appointing people who are ~55 years old – not 43. You’ll get a cert degree of maturity and experience.
        • 15 years is probably now the modal length of terms globally
        • one extreme is 7 or 9 years, we’re the other extreme
    • b. The other issue: who gets to appoint?
      • one option: judiciary has very substantial role in the process
        • in India, the Const says: the Chief Justice of the Supr Ct recommends to the Pres who shd be appointed to the Supr Ct
        • as a result of a decision by the Indian Supr Ct (!), the Pres must accept the recommendation unless there are very strong reasons to reject it
        • T: so you end up w/ basically a self-perpetuating judicial heirarchy
      • other option: judicial nominating commissions
        • in some countries, this commission is dominated by the judiciary
          • Israel’s commission until last summer had 3 current members of high ct., 2 members of Parl, and 2 representatives of the bar – so the justices were not a majority – BUT: the practice had developed that the three justices wd get together and settle on who’d they’d vote for – and then it was inevitable that they’d find another vote. So in effect, the judges picked their own successors
          • That was changed last summer to add 2 more non-judges to the commission – and there’s now a statutory prohibition on pre-voting consultation
          • (tho people are skeptical about the efficacy of this –
          • when you have a small ruling elite, this sort of thing happens: the Israeli Supr Ct had become a contentious actor in Israeli politics, and the Min of Justice was a former prof. of contract, and took as his project reining in the activist supr ct after they rejected a conservative judicial nominee, “Ruthie” – and also an academic who was Friedman’s mistress)
      • at the other extreme: pure executive appointment –
        • in GB until recently – under pressure of EU, they’re moving toward nominating commission
        • in Canada and Austalia, nominations made by PM, no formal limitaitons on what PM can do – in Canada, req. that 3 be from Quebec (and probably conventions about distribution about representation from other provinces – one from Atlantic provinces, one from Plains provinces) – the idea is not to get Ontario (population dominant) dominating Supr Ct
          • there are also social norms (weaker than conventions) about who you can appoint: in Canada, you can appoint very high-level lawyers or members of provincial high cts.
          • same in Australia
          • and that provides a significant constraint on executive’s discretion
          • tho: b/c these are only norms, a PM cd breach them if willing to take a cert amount of political flack
      • and then: another option: mixed, w/ executive and legislative role
        • US model
        • around the world, people observe US process and aren’t terribly happy with it
        • general moves globally to move away from executive nomination
          • as in Canada: we want to eliminate the sole role of the executive in naming Supr Ct judges – but of course, we don’t want to be like US!
          • very hard to find an intermediate position
          • in Canada, result has been: PM chooses nominee, then public hearing at which nominee submits to very gentle quesitoning. One suspects that next move will be to subject 3 candidates to smilarly gentle questioning.
          • note: student: actually, during Con crisis in Dec., PM just rammed through Justice Cromwell (from Atlantic provinces)
      • T: the question is: to what extent is some politicization of the process desirable?
        • when Const. ct.s do Con. law, the activity that they’re engaged in is a blend of legal analysis of the standard sort – analyzing cases, textual language, etc. – and relatively high politics (dealing w/ more or less fundamental things about how the political system should be organized). So: it is desirable to get on the Const. ct. people who are simultaneously law-oriented and sensible about high politics. The reason that judicial self-perpetuation is a bad idea is that judges, in their capacity as judges, are just going to be law-oriented. And the fact that somebody is quite a good judge in interpreting statutes and the like is not always a guarantee that the person will be a good Const. Ct. judge, b/c the talents that he or she uses in being an ordinary judge are fine and are needed, but they’re not enough. And judges perpetuating themselves won’t give you that.
        • On the other hand, pure executive selection makes you nervous about politicization: executive picking someone simply w/ an eye to that person’s position on political issues.
        • So: some considerations:
          • the fact that you want a combo of legal and political skills on the ct dsn’t nec.ly mean that every judge on the ct must have that combo: you cd have combo of pure lawyers and pure politicians.
          • also: in a post-legal-realist world, a really good common lawjudge will be policy-sensitive: think Benjamin Cardozo, think your education in common law reasoning. The best judges look at the cases and precedents, discern underlying policies, etc. Maybe this isn’t different than what you want in a judge doing Con Law.
          • also: in civil law systems, being an ordinary ct judge is a career choice that you make essentially on graduation from law school. You’re a judicial bureaucrat, basically. It’s reasonable to conclude that such judges are not well-equipped for Const. Ct. service.
        • Q: What is distinct. btw legal and political skills? T’s best sense:
          • the law-oriented person will focus on decisions made in past: text, decisions – law as retrospective
          • whereas policy is prospective – you want someone who can both do the law stuff well and look forward, make decent predictions about how things will work in the future
            • similarly: Ackerman’s metaphor of judges sitting on caboose of train, looking backward while they move forward
      • The next Q: What selection-process will give you the desired combo of legal and political?
        • Well, in Compar Con Law, there are no universals. Any of the mechanisms can get you this kind of combo – perhaps based on social norms, etc.
        • But are there design choices that will tend to do better, tend to do worse?
          • Two main options:
            • 1. Selection commissions
            • 2. Parl. participation in the selection process
          • The problem w/ 1 is lawyer-domination, as we see at state-level selection commissions in US.
          • So: #2 seems like a pretty good design. So why don’t people like it?
          • Maybe it’s broken down over the past generation, one reason possibly being: the experience of a very long period of divided gov.t – w/ Sen and Pres in different parties. True from Reagan to today except first 2 yrs of Clinton and last 6 yrs of Bush. Maybe the system dsn’t work very well under divided gov.t.
          • Another possibility: the breakdown really is structural
            • consider Germany: the leading parties struck a deal. They said: we’ll divide the Const. Ct between us: there will be Chr. Dem. seats and Soc. Dem. seats. It won’t matter who’s the Chancellor, b/c we’ll require a supermajority for appointment – and we’ll set it to a point where no matter who is the majority/governing party, they’ll need votes from the opposition party to get a nominee onto the court.
            • ftnt: but: there is a problem w/ 3rd parties – esp. Greens. First Green appointment a few years ago. Was possible to work around, but was a problem.
          • What wd be conseq.s of adopting supermaj. req. in US?
          • BUT: Maybe we already have a supermaj. req.: the poss. of filibustering Supr. Ct. nominees = an effective req. of 60/100 votes.
            • Conseq.s? People tend to think the effect wd be to narrow the pool of potential nominees to people toward the center.
            • But there was a big political controversy in the last few years about whether it was appropriate to filibuster Supr Ct nominees (the whole Gang of 14 thing)
            • T thinks the resolution was as follows: it might bepermissible to filibuster Ct of Appeals nominees, but wd not be permissible to filibuster Supr Ct nominees.
            • Interesting: Justice Alito was confirmed w/ 42 votes in opposition. Dem.s had enough votes to filibuster, but chose not to do so.
            • T.: we might see a test of this w/ an Obama nomination. The problem is: the Dem.s are so close to 60. Al Franken eventually will show up. And Bunning saying he might resign – wd give Dem.s 60, filibuster wd no longer be an issue.
          • Sidenote: the idea of fluidity in US Supr Ct (i.e., that Pres.s appoint and then the judge ends up shifting politically) a myth – Pres.s largely get what they want (e.g. Eisenhower: wanted NE Cath Dem votes, Brennan was; Warren was political). In general, you get what you want, and when you’re screening for ideology, you get that.

***

 

  • T’s basic arg, yest:
    • appointment processes for Con Ct shd be structured in light of the combination of legal thinking and high policy thinking that Con. Ct. judges shd be doing –
      • so: appointments entirely from the judiciary might not be a good idea, b/c judges might be too law-oriented, and not enough high-policy oriented
        • but: an important qualification to this: sophisticated judges understand that ordinary law thinking involves policy judgment – so some ordinary law judges wd be fine as Con law judges
    • and T’s attempt to clarify the diff btw policy and legal thinking was: policy more prospective, legal more retrospective
  • Judicial review
    • We approached diff forms of jud rev through weak/strong form distinction
    • BUT: more trad. forms of viewing differences wd be:
      • centralized/decentralized jud rev
      • abstract/concrete jud rev
    • Intro to ch. 6 lays these distinctions out
  • DECENTRALIZED judicial review of legislative acts:
    • The US system of jud rev: two key characteristics:
      • 1. every ct in the country is entitled to rule on Const. Qs
        • so: if you are in any ct – police, municipal ct, ord trial ct, ct appeals – you’re entitled to raise Const. Qs and have them adjudicated by whoever happens to be the adjudicator
          • T’s favorite example: Thomspon v. xx-Louisville: Prosecution in the police ct of Louisville of Shuffling Sam Thompson, prosecuted for disorderly conduct in the bus station of Louisville – evidence showed that he was in bus station shuffling his feet around (prob moderately mentally disabled, but not bothering anybody) – his lawyer, public defender, says there’s no evidence of dis cond, and unconst. to prosec somebody when you don’t have any evidence against them – police ct judge rejects this arg, fines $10. Under KY law, fines < $25 are not appealable to any other ct. So Thomspon’s lawyer appeals directly to US Supr Ct – and files a motion to stay the $10 judgment, which Hugo Black grants (he’s outraged). US Supr Ct unanimously reverses Thompson’s conviction.
      • 2. (associated w/ 1.) jud rev not conducted by a specialized ct or set of cts
        • in other countries, there are specialized courts: labor, especially; admin; etc.
        • US on other hand has generalist courts
          • and in particular, US Supr Ct is a non-specialized ct: jurisdiction over stat interp, fed common law, and as a technical matter, even state common law (tho since 1937 hasn’t done this), etc.
  • CENTRALIZED judicial review of legislative acts:
    • invented by Austrian theorist Kelsen in 20th C (1910s, 1920s) – partly in reaction to US Supr Ct in Lochner Era. K had variety of justifications for centralized review:
      • T: the one w/ enduring significance = centralized ct wd allow you to get adjudicators w/ right mix of law orientation and high politics orientation
        • the prob w/ decentralized/unspecialized review from Kelsen’s POV was that judges wd ignore the high politics context of Con Law
    • If you have centralized review, you have ONE Con Ct – and you have to figure out how you’ll coordinate that ct with the ordinary ct.s. A couple of methods:
      • 1. you will allow people to challenge statutes in the abstract before they’re enacted, as inconsistent with the Const.
        • this solves the prob of coordination b/c no one is effected by the law yet so nothing shows up in any other courts – Con rev of statutes dsn’t show up in any other ct
        • various methods:
          • anybody can bring a case to Con Ct
          • or some fraction of legislature can bring a case to Con Ct
      • 2. you can have concrete review: a proceeding going on, then Thompson says: there’s a Con issue. Two main ways of doing this:
        • a. once con. objection made, judge stops proceeding and refers case to con. ct.
          • T: administratively problematic – interrupts proceedings, makes them last a long time – cd allow frivolous objections
        • b. x (missed?)
    • Today, #1 is the preferred approach (T: “abstract norm approach,” as in France); #2 used to be earlier in 20th C
      • BUT: last summer, the Fr Const was amended to include a reference procedure – so that Con claims can now be made in ordinary cts and referred to the Con Ct
    • Which do we prefer? Centralized or decentralized?
      • Decentralized: greater access to Con claims? and more part of daily routine, thus making Con more a part of culture? and makes more people thinking about Con Qs?
        • also: key: if you have common law system, with judges making policy decisions throughout their educations and careers from day one, why do you need a specialized Const. Ct.? All judges are already politicized, etc.
        • maybe there’s only a case for centralized review in civil law systems – which was Kelsen’s focus anyway
        • BUT: people have increasingly recognized that civil law judges are doing common-law-like interpretation as well – talk to sophisticated civil law judges: they know they’re not doing anything diff than common law judges – that they’re making policy judgments and reading them into the code (though the non-sophisticated bureaucrat ones might not realize this)
        • Which argues against the need for a centralized system even in civil law countries
        • And this kind of evolution might lie behind the French introduction of a reference system (a step toward decentralization)
        • [terminological point: note: it’s conceptually possible to have a system of Con Ct.s, like labor ct.s (thus in some sense “decentralized”), though no one has done this. In practice, everyone with a Con Ct has had only a single Con Ct., maybe with a few panels. What we mean by “centralized” is having all con Qs decided in one place – anyway, no need to decide whether we’d call this hypothetical form “centralized” or not.]
      • Centralized review: more efficient re: resources?
        • me: wd allow you to depoliticize the rest of the judiciary – have a career, professional judiciary – which it dsn’t make sense to have so long as all ct.s are dealing w/ Con Qs
          • Kelsen saw it the other way around: given a highly specialized system of ordinary courts dominated by specialized judges, you’ll want to create a specialized Const. Ct. so that the people on it will have the needed special skills for politicized Const. interp.
          • I’m making the reverse point: by creating a centralized Con. Ct., you might free up the rest of the judiciary to be depoliticized, professional, career, purely technical (no longer having judges running for office all over the place in US)
        • Sidenote: Dutch Const (centralized, Kelsen model) has bill of rts but says none of its provisions can be enforced in ordinary ct: so if they violate yr rights, you can’t say in ct: my Const rts have been violated – but you can say: the actions weren’t authorized by law. Ultra vires claim.
          • in the Kelsenian vision, that’s all that anyone cd say in ordinary cts.
          • and then ord ct wd interpret statute to find out whether it was authorized or not
          • and if they said it was, you cd appeal to the Const ct and say: the statute must be unconst.
        • a lot of new E Euro Con systems used decentralized version, and it wasn’t entirely successful:
          • but Germ. Const. Ct. was enormously successful – probably more successful than US Supr Ct – and it was centralized, but with a reference procedure, which allows for widespread sense of ownership of Const. rt.s (b/c everyone can raise them anywhere) (in some centralized regimes, people may not really know what their rights are b/c they come up so often?)
      • A recurring problem: The Battle of the Cts: (battle between highest ordinary ct and Con Ct): What happens if you’re in ordinary ct, and it interp.s statute one way, and says the act against you was allowed by the statute, and you appeal that the statute was then unconst. –
        • and then the Const. Ct. construes the statute in a different way – and says: the statute is Const. only if it’s construed in the way we do it. What happens then?
        • Everyone agrees: the Const. Ct. has authority to interp. the Const. – has no authority to construe the statutes.
        • So: high ordinary ct says: When Con. Ct. construed the statute, they were acting outside their authority
        • in every case where this has happened (and this has happened everwhere), though, the Con Ct. ends up winning
      • Other considerations:
        • small v. large country: in very small country like Estonia, less problems having centralized system – everyone lives in Rega, so who cares if the only Con Ct is there?
          • on the other hand: w/ development of the web, communication very easy over very large country
          • T: an interesting facet of many of these websites: very often translate significant decisions into English
        • federal nature of US system: points to the important role of path dependancy:
          • often centralized/decentralized decision will be very path-dependant
          • since US started w/ states, this makes unifying the system more complicated
          • in Brazil (federal), each state has its own ct system, and a parallel system of fed cts
          • in Australia (federal), all courts are nationally appointed, but organized on a provincial basis
  • ABSTRACT REVIEW:
    • Kelsen: sought “abstract norm control”: captured best in French procedure until last summer: the Fr leg. wd adopt a law, and then, if Con Qs were raised by an appropriate fraction of the leg, the case wd go to Con Counsel before the statute became effective, and the Con Counsel wd say: looking at this statute, and the Const., we’ll determine whether it’s consistent.
      • famous lang. from Owen Roberts in US v. Butler: our only task is to lay the statute against the Const. and determine whether the former squares with the latter
        • that’s what the CC in France does – b/c that’s all they have: the law isn’t effective yet
        • hence pure abstract review
      • note: in France, Con Counsel was originally designed to restrain Parliament re: newly powerful Pres. – but about a decade after formation, expanded access to CC to 30% (?) of one or another house of Parl. – meaning minority defeated in Parl. can now bring a challenge to the statute in the CC.
        • note: this dsn’t mean everything can get to the CC – if there’s leg that’s const.ly questionable, but supported by both parties, you won’t get enough people to trigger access to CC
          • and this happened recently re: leg. restricting right of Muslim women to wear headscarves in public schools (prob in some sense unconst.) – but Parl adopted it by 80-20%, latter not enough to get law into CC
    • other mechanisms: the reference procedure
    • or: pure advisory opinions – as in some states in US
    • or: abstract norm control brought by essentially anybody
      • e.g. in Hungary, no “standing” req. for all practical purposes – first case brought to Hungarian Supr Ct was a petition by an interested law prof. claiming that the death penalty was unconst. under new Hungar. Const.
        • footnote: they held it unconst – but the reason they did this is b/c death penalty wd’ve prevented Hungary from becoming member of Counsel of Europe (optional protocol #6 – not really optional any more) – politically, it was easier for Hungary to abolish death pen through judiciary than through legislation, so judges did it for politicians
  • CONCRETE REVIEW:
    • as in US, “case and controversy” req.s: individual litigant actually injured, etc. etc. (see book)
  • What can be said in favor of abstract v. concrete approach?
    • pro-concrete:
      • US law of standing: cuts out a lot of dross, thus improves efficiency
        • me: gives a convenient way out of cranks’ claims – like Hillary Clinton not being valid Sec of St b/c raised salary in Senate, or Obama isn’t president b/c did oath wrong, or people trying to get wars begun w/o congressional approval declared illegal
          • BUT: think Mass v. EPA: maybe standing isn’t as strict as it appears
      • people bringing cases w/o a personal stake might not argue as vigorously as others, which might lead to outcomes slanted against their cause
      • T: the case for US-style concrete review rests on arguments about incentives:
        • the setting helps inform the judges about what is truly at stake
          • the heart-rending complaint – Fortas: “this case pits a bankrupt and x widow against the greedy US” basically
    • BUT: anti-concrete:
      • cd be a trade-off between existence of actual injury and legal competence – think jailhouse lawyers
        • though: there are ways of addressing this: thru the appointment of counsel – public defenders, etc. – or Gideon v. Wainright, which comes as handwritten petition – Supr Ct appointed a lawyer for him in Supr Ct
      • AND: incentives don’t guarantee performance
    • pro-abstract:
      • you can get a faster decision – don’t have to put someone through a trial w/ their life at stake, etc.
    • T: The bottom line:
      • 1. most Const. systems have settled on a combination of the two:
        • concrete review as desirable, for the reasons it’s desirable in US (helps inform judges about what is truly at stake, gives incentives to litigants to argue hard),
        • but not the exclusive method for getting access to Const. ct.
      • 2. in the US, we say we have a system of concrete review, BUT in practice, it’s really hard to come up with a Const. challenge to a statute that can’t be brought by someone at really early point
        • Mass v. EPA is the best recent example: MA saying “we own a bunch of shorefront property, sea-level has gone up a bit already, we’ve lost some of our sea-front property – an inch or two along the whole shore” – the court says: that’s enough to give you standing to challenge the allegedly unlawful action of the EPA
          • many cases like this that push the limits of standing are brought by states or NGOs, largely motivated by ideologically interest (though they sometimes have to say: one of our members wanders into this forest occasionally – the case this morning)
        • or T’s favorite: regulating access by children to sexually explicit material on Internet – Congress passed 3-4 statutes trying to do this – none of those statutes ever went into effect, b/c each time, on the effective date of the statute, an Internet provider went into ct and said: if this statute is applied to me, it wd be unconst. (viol. of 1st Amend.), and each time provider got a temporary injunction, later converted into preliminary injunction, and eventually won.
  • next: some material overlapping ch. 6 & ch. 7: what T calls “political explanations” for the establishment of judicial review – how does it come about? (one big decision like Marbury or many little decisions?) it stops legislatures from doing what they want to do: why do they put up with it?
  • and a section of proportionality doctrine

***

ESTABLISHING THE LEGITIMACY OF JUDICIAL REVIEW

(then: using proportionality cases as a case-study)

  • Legitimacy: how do courts go about establishing the legitimacy of judicial review? Note the political context w/in which jud. rev. is either established or exercised(separate questions) –
    • how the legitimacy of jud. rev. gets established isn’t really a formal question – it’s a political question
      • i.e., it’s easy enough to find provisions in a Const. saying: courts having power to overturn leg. that conflicts w/ Const. (in fact, over the course of 20th C, the inclusion of such provisions has increased quite dramatically – now, it’s basically standard)
    • the Q is: given legal/formal authority to do this, under what circumstances do cts actually exercise that authority?
      • classic example: Japan has Const. authorizing jud. rev. – since 1948/9 – and in the course of that 60 years, the Japanese Supreme Court has overturned 8 Parliamentary statutes – it just dsn’t exercise the power that it has
  • The establishment of judicial review:
  • Creation: Pretty straightforward – has a variety of names, but here’s the basic descrip.: You have a pol. party that has been dominant in the nation for quite a long time – i.e., it’s been getting its way politically – but its power gets eroded, and it foresees the possibility of being thrown out of office. Its leaders say: we’re going to lose the next election; how can we continue to exercise political power in this system? Answer: we can give our friends on the Supr. Ct. power to overturn legislation (we appointed them). One name for this: insurances against electoral defeat: (dsn’t actually ensure against the defeat but against loss of political influence in wake of defeat). Or: hegemonic preservation. Two versions of this story:
        • 1. The old powers say to Supr. Ct.: use the old/existing Const. to strike down things done by the incoming power
        • 2. More interesting: The old powers insert into the Const. new powers – and/or insert into the Const. their program – and then these tools can be used to invalidate the actions of opponents.
      • Note: this isn’t a bad descrip. of how jud rev got established in US – in wake of Federalists’ defeat by Repub.s in 1800 (thrown out of Presidency and both houses of Congr., but beforehand nominated Marshall to be chief justice of Supr. Ct., where he cd continue to implement federalist agenda in face of Jefferson – and was more or less effective in doing that for a while).
      • Another example: the creation of reasonably vigorous judicial review in Israel as the long-powerful Labor Party foresaw its departure
      • And the Japanese example fits in in negative kind of way: it was one-party rule (by Liberal Democrats) from 1949-present, w/ about 8 months out of office in 1990s – and they don’t have powerful judicial review b/c the political elites don’t need.
  • Interesting borderline between creation and ongoing exercisecreation of judicial review in authoritarian societies: the story is: e.g. Egypt has a one-party authoritarian system. For historical reasons, that party was at one point committed to socialist nationalization of property. Turns out that socialist program doesn’t work very well as a method of promoting economic development, and Egypt wants to attract outside investment, and outside investors say: but you’re an authoritarian country w/ a socialist Const. – if we invest in your country, our investments are going to be at risk, b/c your Const says you can expropriate it – and in any case, b/c you’re authoritarian, you can expropriate at any time. So they don’t invest. So authoritarians figure out what they need to do is create an independent court w/ the authority to invalidate expropriations. (Of course, given authoritarianism, there’s still going to be a risk that court could just be ignored. But presumably this decreases the risk somehow.)
      • Funny side-effect: this independent court declared that it was independent re: elections too! and started to push against authoritarian systems.
      • Anyway, investment-oriented judicial review is fairly common in authoritarian countries that are trying to attract external investors. (But not all: a resource-extraction authoritarian country – oil, minerals – doesn’t really need to do this – can fund its own development.)
    • KEY: Summary point of above: You get independent courts b/c it’s in the pol interests of pol elites to have independent courts.
      • But the Q becomes: under what circ.s is it in the ongoing interests of pol elites to have indep courts?
      • It’s not always going to be in their interests.
      • e.g., if old-power party keeps hold on some influence through judges – eventually judges are going to die.
      • so: you might see cycles: transition -> spike in judicial review -> judges dying out = low-level judicial review -> new transition -> new spike, etc.
    • Also note: even in one-party dominance, there are circumstances where the one dominant political party might find it useful to have judicial review:
      • judicial review as an administrative mechanism. You’re in charge, you’ve got a lot of things that you want to do. A chunk of them you can do thru legislation, but leg.ure’s time is limited – it might be useful to fob off, send some of your programmatic business to the courts to accomplish.
      • this is the story generally told now about the Warren ct in US (worldwide exemplar of vigorous judicial review): it did two things:
        • 1. it helped clean up the statute-books – there’s a bunch of stuff enacted before the New Deal/Great Society really reaches its height, and that cdn’t be enacted now (in 1960s), but can’t be repealed – maybe just b/c of limitations of time (Congr. doing a lot of stuff in 1960s, dsn’t have time to go through statute-books and clean them up) – so courts can serve this role
        • 2. (perhaps a peculiarity of US federal system) Court can invalidate outlier statutes – there’s a national consensus about something, but there are a a few states or a region that is pursuing policies inconsistent w/ the national consensus – b/c there’s a national consensus, Congr cd enact statutes, but the political leaders say: let’s use the courts to do this. E.g.: Griswold v. CT: invalidates a statute existing only in 2 states, for quite peculiar local reasons. Or: Lawrence v. TX: anti-sodomy legislation only on the books in a few states.
      • something related to administrative mechanism exists in authoritarian countries: e.g. in China, no significant review of legislation on a national level – there’s a Nat. People’s Congress that’s supposed to look at laws but it basically doesn’t do anything – but there is on the lower levels a (missed) – the central Communist Party in Beijing – then the gov’t (spread out over very large country) – govt’s actions are supposed to adhere to rule of law – but you have these local party officials who corrupt the local govt (call up local mayor and say: tear down these houses for my benefit; mayor dsn’t know what to do). CCP wants to stop this. Uses (missed).
    • Also note: Divided gov’t scenario is when you get truly independent courts: no one party is sure when they’ll be out of power. (Divided gov’t cd be synchronic (one party controls part of govt, another party another) or diachronic (power back and forth))
      • sidenote: re: coalition gov’ts with shifting parties, as in Israel, Italy:
        • Israel: no core, shifting all the time
        • slightly different than Italy: one hundred gov’ts since end of WWII – at least until last decade, tho, Christian Dem.s were always in the gov’t. Fixed core.
    • Note: There cd be circumstances in which President/political leader wants courts to take over responsibility for something – given that parties are coalitions, suppose there is some issue the resolution of which wd divide the party – you don’t want to force that into the legislative chamber. If the other party is also subject to splitting on this kind of issue, then political leaders in both parties might find it attractive to say: we can’t dodge this issue, some constituency cares about it, so let’s let the court do it. And then – a variety of attractive elements follow:
      • e.g.: abortion in US: both parties were divided. At the time, both parties worried about what wd happen. (Economic liberal Catholic Democrats anti-abortion; fiscal conservative suburban NE Republicans pro-abortion).
      • Allows everyone to shift responsibility and hold their coalition together: sorry, it’s the Const! We’d like to help you out, but the Const. says you can’t.
      • We know, however, that over the long-run that’s not a sustainable strategy.
    • BUT: Key: Once you have truly independent courts, they might not serve your political interests at all! You may set up a truly independent court for political reasons, and then – b/c they’re truly independent – you may find them doing something you didn’t want.
    • Most of the above: political science, not law
  • Q: How do Const. Ct.s go about creating legitimacy of their jud. rev.?
    • Materials arranged around two models:
      • 1. through foundational cases
        • the story in US that everyone tells is Marbury, or in Germany, the Southwest case, or in France, the decision on associations
        • the court asserts its authority to invalidate legislation, and the political system accepts that assertion – and the assertion occurs in a politically prominent case. (T: adds the latter qualification b/c in US there are a fair # of cases, 1790s-1820 in which US Supr Ct asserts it authority to invalidate statutes, but no one really notices. We only notice w/ Marbury.)
          • the question there is: how does the foundational case actually succeed in establishing judicial review? look at e.g. Marbury and Southwest:
          • Marbury: Marshall wants to slap Jefferson down but dsn’t have pol power to do so – so he says Jefferson acted unlawfully, but we can’t do anything b/c when Congr gave us the authority to do this, it violated Const. So: an assertion of power coupled w/ a finessing of the politically sensitive part of the problem.
          • Southwest (587): A variant on that. It’s politically significant – about the org. of the states of Germ. The ct first says: we have the authority to invalidate legisltion. Second, says: we have 2 statutes in front of us. One (it seems to T) relatively minor, the other rather significant. Former: temporary patch. Latter: permanent soltuion. They say that the temporary patch is unconst., but uphold the perm. const. T: my vision of this is that the temporary patch is like the provision of the Judiciary Act invalidated in Marbury – not a really big deal politically.
        • final note: the material on France: if you look at the Associations law case (599), the thing that strikes a US reader pretty dramatically is that reading the decision, you wd have no idea that this was a significant decision – you’d have to be deeply embedded in the French legal culture to know that this was a “revolution made in four words” (Stone quoting Fr. scholar).
          • just emphasizing the local nature of Con law
        • student: an example to keep in mind: Pakistani Supr Ct justice stood up to Musharraf (re: detentions, etc.), was sacked, instability continues today – me: a failed effort to establish legitimacy; this is what it looks like when a court doesn’t have legitimacy, is ignored – always the outlying scenario when we think of judges’ decisions from political perspective (Lochner and court-packing): what if the gov’t just didn’t go along?
          • T: a prob. w/ the foundational cases method: the judges have to get away with it.
          • this is why the “striking down minor, upholding major” strategy seems appealing –
          • but on the other hand, it’s not clear that you’ve accomplished anything
        • sidenote: Jackson is much more attracted to the foundational cases model than T.
        • Q: foundational court or case or judge?
          • Student: in India, courts sit on panels, so the foundational thing would be a case. (In fact, there was a foundational case, and 13 judges sat on the panel, haven’t sit together again since then.)
          • Also: an issue in Israel: if the foundational thing is a judge, a risk that the foundation won’t survive him entirely – Aharon Barak, Chief Justice of Isr. Supr. Ct. for decade – worked hard to get the ct established, e.g., was very aggressive in getting significant opinions translated and posted on the ct’s website, and he was the one who made the choice about what was significant. He generated a lot of opposition in Israel, b/c one of the central divsions in Israeli politics is btw observant Jews and secular Jews, and Barak and his ct became associated w/ latter. The opposition to Barak and what he did hasn’t yet accomplished anything significant – but new Chief Justice, a protégé of Barak’s – a “nice enough person and good enough lawyer but she’s no Aharon Barak,” people say.
            • Max Weber had this idea of the bureaucratization of charisma: the problem for a charismatic leader is to embed the charisma in some enduring structure that will persist after he or she is gone.
        • also: sidenote: these foundational cases’ foundationality get established incrementally anyway – case in point: Marbury – if you Shepardize Marbury, 30 cases citing it in 19th C – all for mandamus, not for the invalidation of the providition in Jud. Act of 1789.
          • BUT: counterexample: there was the revolution made in four words in France. Everyone knew this was a big deal at the time it happened.
      • 2. the incremental establishment of legitimacy
        • occurs when, in a series of relatively minor cases, the courts strike down legislation – so that people get used to the idea that courts can do this. And then 10-15 years along the way, you have 20 statutes invalidated, now along comes a really significant problem, and court strikes down statute – and people say: what are you doing! and court says: we’ve done this twenty times, nobody objected then.
        • T. thinks this is the story of judicial review in Canada – the Canadian Supr Ct is quite strong. But not easy to identify any particular case that is foundational in the sense above. (No case either at the time or today was or is experienced as foundational in the way that Marburyis in US.)
        • The Pakistan example may show the pernicious influence of John Marshall: everyone wants to be him, but sometimes it dsn’t work out
          • or: the story (we aren’t reading) of the first Russian Const. Ct.: Zorkin, self-consciously thought of himself as Marshall – made compromise decisions, etc. – it was a disaster – Yeltsin shut the court down for 2 years, suspended its operation. When came back, was a much-chastened court. And today, doesn’t matter – Russia an authoritarian country.
        • On the other hand: Aharon Barak more or less pulled off deliberately being John Marshall in Israel. As did Brian Dixon in Canada.
  • Ongoing exercise: (tomorrow? or was this already included above? in any case, it’s a distinct category)
  • Tomorrow: proportionality analysis

***

ESTABLISHING THE LEGITIMACY OF JUDICIAL REVIEW

Israel

  • Israel material: what we’ve been talking about re: other countries has been the internal legitimacy of judicial review – i.e., as seen w/in the nation itself. But Israel alsohas an issue on the world stage: judicial review plays a role in legitimating the contested issue of the occupied territorities.
  • Jacobson argues that Israel hasn’t resolved the tension that he argued in earlier reading was reason for them not having Const. moment (i.e., the tension btw Jewish state and democratic state) – and that the problem posed by judicial decision-making, “judicial activism” in Israel is that Const. interp. is predicated on that tension – the court will be coming down on one or the other side of these disputes.
  • How does this problem manifest itself? In a number of areas.
    • 1. First: recurrent controversies about “what it means to be Jewish.” If Jewish = democratic and Jewish state, then you have to have some understanding of who is a Jew.
      • note: these and parallel Qs come up through litigation as well, forcing courts to take a position
      • Also: issues like: whether the govt. will create way to solemnize marriage outside of religious ceremonies.
        • esp. big issue now, b/c the natural grouping of parties in new Israeli govt. is:
          • Netanyahu’s secularist conservative Likud party;
          • Liberman’s completely secularist Our Israel party, one of whose agenda items is creation of secular marriage regime in Israel [footnote: what secularists in Israel do is go to Cyprus, come back and their marriage is recognized];
          • longstanding orthodox party, vehemently opposed to creation of secular marriage alt.
    • 2. Party qualification issues: qualifications for being on the ballot. Israel is committed to “militant democracy”: democracy must be vigilant re: its own preservation, thus anti-democratic parties can be kept off the ballot.
      • the term arose in the early 1940s and was more or less widely applied, and still is reasonably widely applied, re: Nazi-like parties, and in some places, local Communist parties
      • in Israel, def. of an “anti-democratic party” is that it rejects the proposition that Israel is a “Jewish and democratic state.”
      • and the courts end up having to decide these questions: What is a party program that is inconsistent with Israel being a Jewish and democratic state?
        • ends up being tricky b/c of demographic questions: in the absence of relatively large-scale immigration of Jews to Israel from outside Israel (and no one thinks this will happen), then within roughly the next generation, the population of Israeli Arab citizens will be larger than the pop. of Israeli Jewish citizens – which means a party supporting the Jewish and democratic nature of Israel could (me) become a paradox
        • some try to draw distinction btw Arab parties that don’t deny Jewishness and those that say “we’re a democracy and will do whatever we want” – sometimes latter are prohibited
      • same thing happens re: those parties that want to expell Israeli Arabs (are in favor of Israel’s Jewish nature but not its democratic nature) – they get disqualified as well
      • in last election, the Electoral Commission followed pattern of denying one party of each type – both reversed by Supr Ct, T thinks
      • sidenote: re: nature of Israeli Supr Ct:
        • 1. when the ct sits as a Supr Ct, it sits as an appeals ct (so there has to be some action in a lower ct); when it sits as a High Ct of Justice, it sits as a trial court
        • 2. when it sits of Supr Ct, T thinks all 7 justices are on panel; otherwise, not
        • but this dsn’t matter for this part of discussion
    • 3. The status of Israeli Arabs: the main issue here is draft not being mandatory, or disqualification from service in the Israeli defense forces (no one in class seems to be clear on this – difference btw Palestinian Arabs and Bedouins?). And a number of other forms of discrimination:
      • Land reform
      • Marriage to Israeli citizens: can they come there and reside with spouse?
        • Israeli Supr Ct upheld statute saying that if you’re Israeli Arab who is married to resident of occupied territories, your spouse is not entitled to come to Israel to reside with you
        • straightforwardly discriminatory; upheld
      • (sidenote: also some issues re: Yeshivish Jews not having mandatory service – but presented as occupational exemption [re: Yeshiva], not religious; in the same way that pregnancy can be presented as not gender discrimination)
  • (4?) Weak version: The activities taken by Israel re: the occupied territories are not obviously compatible with international law
    • (Strong version: they are plainly incompatible – but T dsn’t want to take a stand on that)
    • Given those questions, the issue is: how do you reconcile what the occupying forces do with domestic constitutional law?
  • Sidenote: throughout all these issues, remember that no Constitution has ever been enacted – hard to figure out the law associated with the Basic Laws, etc.
  • The development of the legitimacy of the Israeli Supr Ct:
    • One of the odd things about the Israeli story is that when you read accounts of the development of Israeli Const Law, you will see recurrently statements that 1, 2 or 3 cases are the foundations of judicial review in Israel (didn’t hear a single thing):
      • Burgman,
      • Inlon (Elon?) Burae,
      • Bat Mizrahi
    • And the curious thing is that each is seen as the foundational case: not an incremental process
    • All the scholars agree that there was one foundational case, they just disagree about which
  • What you observe in these cases is an effort by the Israel Supr Ct to secure a legitimation of the occupation by showing the world – or Isr peace activists – by showing somebody that the occupation is regulated if not by intl law then by domestic con law – it is subject to the rule of law, [me: like Dershowitz in A Case for Israel saying: Israel is the only country in this situation that has obeyed rule of law…] not an unregulated military occupation in which the military forces can do whatever they want. The thought is that by showing this – when the cts on occasion step in and tell the military forces: here are some things you can’t do – the cts show to the world:
    • first, that Israel is a law-abiding state
    • and, second, they validate all those actions taken by the occupying forces that the cts do not disapprove of.
  • So critics cd say: the nominal victories for oppressed groups actually contribute to the perpetuation of their oppression. Or you could even say the court is doing all of this intentionally, to legitimate the occupation. [And Barak has given indication of being at least aware of this theory, though he may express this awareness in order to protect himself from domestic critics.] (Though you cd imagine them doing this also even if they didn’t want to legitimate the occupation – if they were in good faith simply trying to define the law.)
    • the same cd be said re: some segregation cases in US: by striking down only formal, legal segregation, and not de facto segregation, court didn’t solve the problem but put affirmative action under a cloud
    • Charles Black’s analysis of the US
  • Note: the ICJ did decide that erecting wall/barrier did violate international law dealing with the powers of occupying forces – it did so in an advisory opinion in which the Israeli govt. refused to participate. So: as a matter of int’l law, that advisory opinion carries relatively little weight. If contested, wd’ve carried greater weight. [ICJ also said a lot of other things about occupation were illegal.] [And Israel didn’t contest precisely in order to deprive it of weight.]
  • Note: student: Barak says in his book that in 25 years of adjudicating on occupied territories, he never visited them
    • also: student: later parts of some opinions are like guide to military to how to avoid judicial review in future
    • student: Israeli speaks in terms of obligations under int’l law, but its interp. of IL, IHRL, IHL, is basically only its own – no other signatories agree with interp. of Geneva Conv.s? like a shadow system of IL they’re developing
      • T wd see this as a separate domestic system of law v. IL
    • [me: why doesn’t Israeli Supr Ct just declare all settlements illegal? What would happen?]
  • Student’s arg.: it wd not serve the sovereign interests of Israel to make the occupation outside the law – this is what Barak said to his internal critics: if we weren’t striking down these marginal things, Israel wd get even more int’l condemnation
  • T anecdote on Barak: during First Intifada, IDF did seige of Arafat’s HQ in Ramallah. Only one road goes in. Then someone challenges something in court. There is ongoing conflict, soldiers firing back and forth on both side of road. Truck approaching w/ red crescent, claiming to be medical resupply. Colonel in courtroom gets call, asks judges: it’s 400 yards away, can they stop it? Judges say: yes, briefly, to ensure it carries med supplies. Colonel says this, it happens.
    • T: if courts can do this, they can do anything.

PROPORTIONALITY

Canadian materials, then raise Q: is proportionality review inherently legislative in char.? (And then next Monday on Baby argument (?) about proportionality being worldwide rule of law)

  • Proportionality = doctrine saying that leg. action is constitutional if it is proportionate (in some appropriate sense) and unconst if it isn’t
    • In Canada, proportionality req. comes out of “demonstrably justifiable in dem society” clause
    • OAKS (maybe most cited Const. decision around the world) says:
      • 1. The goal of the restrictions has to be sufficiently important – can’t be trivial – must relate to concerns that are pressing and substantial
        • T: as a practical matter, this first req. is almost always satisfied
        • legislatures rarely (but not never) get mobilized to enact statutes that address trivial/insubstantial/not-pressing problems
        • this standard serves as screen against legislative action that is just silly, e.g., proposals made over past few years in US to prohibit teenagers from wearing low/baggy pants, mostly on aesthetic grounds – if truly is just aesthetic, that might not count as a sufficiently important goal?
          • me: might this req. secretly be trying to get at motive: to expose pretextual justifications (b/c presumably you could find ajustification for any action, even if your actual goal was something else and impermissible – this forces you to at least come up with a serious goal as your pretext, which could conceivably not be possible in some cases)
      • 2. The means chosen to pursue these goals
        • a. must be carefully designed, not arbitrary: rationally connected to the objective
        • b. the means chosen has to minimally impair the right violated
          • rem: the structure of Canadian analysis is: 1) has a right been violated? 2) is the right violation demonstrably justified?
          • the way “minimal impairment” analysis works is:
            • you’ve chosen means A, which impairs right x
            • but you cd’ve chosen means B, which would impair right x less
            • in that case, you haven’t passed minimal impairment test
          • sidenote: proponents of proportionality approaches say an advantage of the approach is that they’re superior to more rule-like, categorical approaches in US law: it’s not clear to T that this is true. B/c US law has a test that is similar to this test – has diff names, depending on context. T will say “the least/less restrictive means” test.
          • this has come up re: Congr’s efforts to block children’s access to pornographic materials on the Internet
            • last attempt was: it’s illegal unless you req credit card and age verification
            • court said: there’s a less restrictive means: filtering software
          • T: in the US, what we’ve learned from least restrictive means analysis is that you can pull of what T has just said only if you have a narrow vision of what the purposes of the legislation are. e.g.: If you say that purpose of legislation is to restrict access of kids to sexually explicit material w/o imposing significant burdens on their parents, then the blocking software is not a less-restrictive means.
            • and with a little ingenuity, you can make this kind of claim about every “minimal impairment” argument
            • “yes, there’s a substantive purpose; but there’s also an administrative convenience purpose; and anything other than what we’ve done will accomplish former, but will be less convenient; so it wdn’t be equivalent”
        • c. proportionality = achievement of purpose / extent of impairment, must be >= some imagined number.
        • [something about Edwards’ Books and rationality test?]
      • conclu: T: first 3 components (1, 2a, 2b) wouldn’t license a whole lot of judicial involvement – they’re very weak standards. The true proportionality requirement is whether it authorizes a significant amount of substitution of judicial judgment for legislative judgment. We use the Bake Suric case (?) to pose that question.
  • Is proportionality the universal rule of law? HAMDI as comparison.

***

  • Proportionality continued:
    • 1. is it basically a legislative technique, or are courts doing something diff than leg/exec when they do it?
    • 2. is it the universal rule of law? (Beattie’s thesis; we’ll use HAMDI as US example of “proportionality review”)
  • We’ve been looking at large-scale structures of Con Law; after Spr Brk, we’ll be looking at doctrinal/substantive areas
  • Recap:
    • we intro’d the proport. idea w/ the Canadian version of it in OAKES: two large categories, the second having 3 subcomponents – we talked about minimal impairment, then proportionality btw the purpose and effects on the right
      • T: minimal impairment is a threshold requirement – the degree to which this restriction impairs the right compared to the impairment that wd be caused by some regulation – and if other reg can accomplish sames goals w/ less impairment of the right, then the reg in Q doesn’t minimally impairthe right
    • the third subcomponent: the true proportionality requirement: look at the degree to which the regulation affects the right and the degree to which it promotes the legislative purpose. You end up saying, where the prop. req. has bite: this regulation does affectuate an important public purpose to a significant degree, and does so more effectively than alt regulations, but it impairs the right disproportionately, meaning there’s a better regulation that will impair the right less and accomplish the leg. goal not as well, but the ratio of legislative effectiveness to impairment would be better. Yes – think of as ratio:
      • Reg. A: (Impairment = large) / (Effect = Good)
      • Reg. B: (Impairment = small) / (Effect = not as good)
      • True proportionality req. might require govt. to do Reg. B, even though it’s not as effective in achieving the legitimate goal as Reg. A.
      • So: there is an admitted sacrifice of the govt’s ability to do what it wants – in exchange for the greater protection of a Const. right.
      • Also note: you’ll find a relatively small # of cases that invalidate a regulation on pure proportionality grounds, i.e. on this ratio idea.
        • you’ll find cases saying: the reg. isn’t rationally related to the objective, or dsn’t minimally impair –
        • but usually, by the time they get to true prop. analysis, it passes
        • tho there are some invalidations on pure prop. grounds
  • BEIT SOURIK VILLAGE (?): Case about the separation wall. (T: by using this phrase, not taking a stance on any political issue – every poss. descriptor has some valence.)
    • Two questions:
      • 1. is the wall as such legal?
      • 2. is the location of the wall legal?
    • Re: both Qs, court defers to security needs stated by military (so it can’t say barrier is irrational)
      • re: 1, the ct says it can’t displace the judgement of military officials on security issues
        • (the challengers have alt. military experts, saying wall is unnecessary)
    • Then the ct turns to proportionality analysis (673+)
    • When it gets to true proportionality req., what the ct says there (680) – re: 2 – it deals with cases like: a wall passing through a village, severely disrupting econ. activity
      • challengers say: if you moved the wall around the village, the econ. activity would be much less disrupted, and the sacrifice to nat’l sec. wd not be dramatically lessened. So: the military’s chosen route for wall is disproportionate in a strict sense (Barak’s words): alt route wd have smaller impact w/ a proportionately acceptable reduction in military security.
        • T: it’s that last part that’s analytically problematic
        • all up to this point, Barak has been saying: we can’t second-guess the military in its judgment about the necessity of its barrier or military security
        • but then when it gets to proportionality in narrow sense, that’s exactly what ct is doing
        • Military says: there will be some reduction in nat’l sec if we relocate the wall
        • and the ct seems to say: yeah, there will be – but the proportionality test requires that we displace the military’s judgment on this question
        • (me: there seems an obvious way of reading what T’s describing here that isn’t problematic: court is saying; we defer to military on nat’l sec, but not on judgment of impairment or on comparison between value of nat’l sec and impairment)
      • T: clarifying: the ct’s position at first is: we can’t tell the military that they’re overestimating the value of the wall for nat’l sec
      • Barak is like Scalia at end of Boumediene opinion: some Israelis will die as a result of this decision – nat’l sec will be reduced. (me: or less dramatically, the risk of Israelis dying will be increased). But v. Scalia, Barak’s saying: this is okay.
      • The bedrock of occupation law is: you can’t treat the occupied any less than you’d treat your own.
    • Scalia has raised Qs about proportionality: is there a single metric by which you can compare nat’l sec threat and impairment of living cond.s of residents of village? T: If you’re a utilitarian (or prob all consequentialist approaches), yes there is. But if you have a rights-based analysis, it becomes much more complicated. (The rights of Israelis and residents of occupied territories seem to conflict.)
      • Scalia’s sense: no, this is just going to be a policy-like choice – about which right you value more, which goal you value more
    • T: Perhaps Barak is actually making an irrationality argument here: military hasn’t made even a decent argument that shifting the barrier to the edge of the village wd have a significant effect on national security at all.
    • sidenote: re: the idea that court can’t make determinations re: nat’l sec. in military issues: T: when you’re dealing with real non-justiciability issues, you often end up getting the feeling: no one’s rights are really at stake here. It’s purely a policy matter.
      • in Marbury, Marshall divides the world into a rights world and a political questions world
    • T: also, another example of Shamir legitimation argument: changes the question from “fence or no fence” to “where to put the fence.”
      • incl. the idea that building fence to protect settlements that are per se violations of Int’l Law is a “legitimate aim”
    • stu: Makes sense for judges to get involved here, be making these policy decisions, weighing these things, for political process reasons: Palestinians don’t have voting rights, so political branches will have distorted decisions.
      • BUT: always keep in mind the political limits on all of the court’s decisions – rem Barak’s role in Israeli judicial hist. etc., he’s a controversial figure – Barak is severely constrained re: what he can say. E.g. who knows what wd happen if he said wall as a whole is illegit.
    • note: true proportionality prong will always function as a limit on cts’ deference to others’ decisions
  • BEATTIE: prop. is a universal rule of law, that if you look at cases from around the world, incl. US, you see the ct doing what is essentially a proportionality analysis.
    • In most Const. ct.s, you’ll see them using the lang. of proportionality, and adopting an analytic structure pretty much similar to OAKES analytic structure. There’ll be local variations, but the 2-step process w/ 2nd divided into 3 components is smthg that cts do fairly frequently.
    • In the US, you don’t see that: the lang of proportionality is rare.
      • BOERNE was one example where lang. of proport. was used – and since then Justice Breyer has occasionally mentioned proportionality.
      • and then in last few years, proposed a test and actaully called it “proportionality review”
    • BUT: Beattie says: if you look at a case like HAMDI, the ct/O’Conn is doing something that in other jurisd.s wd’ve been called “prop. analy.” In the US, we call it “interest-balancing”: look at the interest the gov’t is seeking to promote, and you compare that – evaluate the legislation in terms of its promotion of that interest relative to the infringement of the Const. rt. (No – T: Not quite how we do it – we say: promotion of govt’l interest v. infringement of indiv.interest.) And we say: “govt int must be subsantial”; there must be “narrow tailoring.”
    • Beattie says: two diff.s btw Canadian approach and US approach:
      • 1. in terms of bottom-line labeling, in Canada you say: is there a rts. violation – yes? – thenjustification by proportionality
        • v. in the US, we don’t say that there’s a violation that’s justified
        • we say that if the balance comes out in favor of the govt, then there is no rigths violation at all
          • so: balancing analysis followed by declaration of whether there’s a violation
      • 2. there’s a difference in the transparency of the analysis as between the Canadian approach – the “worldwide approach” as he says – and the US approach: the former is highly structured (has these steps), and b/c of its structure, people can understand what’s going on.
        • The contrast to the US approach is that a US judge (maybe O’Conn in HAMDI as illustration – e.g. p. 687-90) simply enumerates a bunch of considerations and at the end of that enumeration, says: given all of that, here’s what has to happen.
        • Compare those pages in O’Conn’s opinion to the pages in Barak’s opinion where he does the proportionality analysis. T: I think a fair claim: Barak’s approach is more transparent. (me: or is it the other way around? b/c really all Barak’s doing is holding up a bunch of stuff and then following his gut – the structure dsn’t really determine anything, just window-dressing) [later on: T. just made this point: you might say: Canadian structure conceals the policy analysis that they’re doing]
          • T: Scalia, an opponent of interest-balancing, wd say: Canadian model is more transparent – we shd have a more rule-based structure for doing things.
          • In HAMDI, Scalia says: you can charge Hamdi with treason (and then there’d be the criminal procedural protections provided by bill of rights, plus special protections for treason prosecutions), or Congress could suspend writ of habeas corpus (and in so doing could specify whatever procedures it wanted – wd be free to set up Enemy Combatant Status Review Tribunals or whatever) – that’s it.
            • T: he thinks Congr can suspend habeas re: an individual person, but not sure.
  • note: for tom: two components of juridification that Stone focuses on:
    • 1. the relationship btw forms of judicial review and juridification
    • 2. what’s wrong with juridification?
      • (the idea that there’s too much judicial review happening – pinning down what’s wrong w/ juridific in a world where you recognize that there should be judicial review turns out to be difficult)
  • Material on judicial activism: Russian and Indian material (?):
    • Russian story: an interesting story of a failure of judicial activism: b/c of the date of the materials, you can’t get the full flavor, but: in early post-’89 period, there was a democratizing regime facing significant residue of the prior Soviet regime – and the question for the Russian polity was: how were they going to handle the legacy of the old regime on the process of movement toward democracy?
      • Two modes of addressing that legacy:
        • Legalistic:
        • Political:
      • What happened with the Russian Const. Ct. was: its leader, Zorkin, tried to mediate this transition both in the legalistic mode and in the political mode –
        • Legalistic: so you read the story, there are cases that come to the Const. ct. involving the Const.ality of the Comm. party, and Zorgin makes Const.’l rulings – basically trying to split the difference, as it happens, b/c he thinks that’s a diplomatic solution to the problem – so there are the cases,
        • Political: and then a quite extraoridnary set of public negotiations btw Zorgin and Yeltsin and x where Zorgin is really acting as a mediator to get two sides to work out difficulties.
      • Former okay; Latter a complete failure, to the point that Yeltsin closes Const. Ct. for a few years. Then comes back, seems like it’s becoming a real Const. Ct. Then along comes Putin and it falls apart – becomes a creature of Putin, as is everything else. (So the end of the story is about the reestablishment of an authoritarian regime. T’s opinion. Some wd say that’s a little overstated.)
      • What T wants to stress in the Russian story is that you might want to distinguish between “judicial activism” and “the activism of judges.” Zorgin in his negotiating capacity was to some extent drawing on his authority as Chief Justice of Const. ct., and his ability to credibly threaten the opposing parties w/ an unwanted decision – but mostly he was trying to be a mediator, not a judge.
        • T: wdn’t want to draw strong lessons from the Russian experience – but one thing you might think about: it might show that judges being activists may not be a good idea, even if courts being activist cd be good idea. (Zorgin moving out of role as judge being the core problem.)
    • Indian story: more about judicial activism, and in some ways more interesting: when you read this material, from US POV, quite extraord. set of actions by Ind. Supr. Ct.: “the world’s most active judiciary” – a whole bunch of stuff about the structure of the ct
      • T: the thing that for him stands out is (711-712) the epistolary jurisdiction – adjudicated cases that are brought/initiatied on the basis of letters to the justices of the Supr Ct. There’s one celebrated adjudicated case in which a justice of the Supr Ct read a newspaper story (re: homelessness in Delhi) [stu: actually, quite a few cases like this] – and feels some tension btw world described in newspaper story and what Const. says (e.g. right to life). And then a case begins.
      • Also: needs updating: excerpt from Cassells (pron.: Castles) – Ind. Supr Ct existing in almost metaphysical separation from Indian society – the situation on the ground not much improved by their interventions. T: the picture that comes out of this excerpt is in some ways too bleak. There are at least 2 quite celebrated cases in which the activism had real-world effects (why they did turns out to be complicated, but):
        • e.g., the Ind Supr Ct said that gas-powered Delhi bus system generated so much pollution that it was impairment of right to life (?) of people in Delhi – and ordered that bus system to convert to nat-gas-powered buses. Over 5-10 yr period, it happened. Non-trivial investment. (Maybe govt wasn’t opposed to it, but…)
        • also e.g., in one right-to-food cases, Ct said food distribution sys was so terrible, it violated Const, had to be reformed – and the sys was reformed.
        • on the other hand: sometimes order things that don’t come about
        • in sum: some of their orders are complied with, some aren’t. And materials in book dsn’t emphasize former enough.

***

Connection between forms of judicial review and the phenomenon of increased judicial activism and juridification (if those two things are different)

The materials present a fairly common and intuitive story about the connection between judicial structures and increasing amounts of judicial review.

  • The nature of the story:
    • if you have a court that’s generous in allowing access, either through
      • relaxed standing rules (allowing anyone who’s interested to mobilize the court)
      • or advisory opinion practice
      • or willing to do abstract review,
    • then you’ll have increased judicial activism.
  • How to test this?
    • prediction is that if e.g. standing rules are relaxed, you’ll observe more invalidation
    • seems intuitive: if more people can challenge something, odds of getting a challenge are increased
  • BUT: forces pushing in other direction:
    • first:
      • there’s a difference between increasing the number of cases in which ct.s consider the const.ality of statutes and judicial activism
        • where “jud. activism” means: the # of cases in which the court, after considering the Const.’l Q, strikes a statute down
      • increased number of possibilities to strike things down doesn’t necessarilymean they’ll strike more statutes down
        • the assumption seems to be that judges have a baseline rate – say, they’ll probably strike down 10% of statutes, regardless of how many they receive
      • but what makes us think there is a constant baseline?
        • the idea that built into being a judge is a desire to strike statutes down
        • why wd that be so?
      • me: dsn’t seem unreasonable – precisely b/c:
      • T: in the US law of free expression, one of the best explanations for a ban on prior restraints (e.g. prior submission to censoring board) is that the job of the censor is to censor.
      • T: I don’t think you can say something similar about Const.’l court judges
      • student objecting: but what court wd want to be a rubber stamp?
      • T: so maybe there is an analogy to a censorship board!
      • (agreeing w/ my sense above)
  • Another force pushing in the same direction:
    • in many jurisdictions, constitutional courts are assigned other jobs, including certification of elections and approval of political parties
      • those are jobs that are transparently political and not dramatically legal
      • the fact that they (missed)
  • Another question about the relation btw easy access etc. and the rise of judicial activism – suggested by aspects of the Indian story – pol. scientist (Epp?) wrote book (Rights Revolution?) comparing judicial activism in several countries
    • Epp concludes: prereq. for successful Rights Rev. (in this context, an increase in the number of invalidations) is preexistence of a support structure for it
      • support structure: incl. a core of lawyers who are available to support both litigation in the Const’l court and to follow through on the litigation in lower courts, to get them actually implemented – so that even if you have an activist court like the Indian Supr Ct, you might not have a significant Rights Revolution, an increase in the actual effectiveness of judicial review w/o this sort of support structure
      • Epp looks at number of countries, argues that e.g. in Canada, in 1960, the statutory bill of rights was enacted, in 1982 the Const.’l charter bill of rt.s came into effect – after 1982, you see increase in judicial activism compared to what happened under statutory bill of rights; Epps: the enactment of Const’l b of r isn’t what caused increase in jud. activism – the difference was created by growth of support structure that was then in place by 1982 to take advantage of the new Charter Bill of Rts
        • v. in India, very weak support structure, very few NGOs to create support for this kind of litigation
      • T: a powerful analysis that again has some intuitive appeal
      • T: one qualification: the possibility that the existence of a court willing to strike statutes down will itself encourage the formation of rights-oriented NGOs –
        • a court will take the first step, then someone in civil society will say: “if we organize, we can go back to court and get something done” – so that activist court serves as catalyst for creation of NGOs – or in any case, there’s an interaction
        • second step: consider: what wd it take for a system to move from restricted access to easy access? probably wd come about as the result of political mobilization, which might itself include the development of a support structure
      • In sum: Political mobilization -> Structures -> Judicial activism
        • so: the causal story you’d want to tell would begin with judicial activism
    • Note: re: the term “judicial activism”:
      • 1. yes, it is generally used pejoratively.
      • 2. but: we do need some sort of language to talk about the phenomena that are described in this chapter
        • that may be one reason that Stone invents this word “juridification” – to have a term that is just descriptive
        • so maybe we shd switch from the term “judicial activism” to the term “juridification”
      • 3. two observed phenomena to distinguish: in any jurisdiction,
          • an increasing # of statutes invalidated,
          • and an increase in the rate at which they’re invalidated
        • The “juridification” phenom is a combo of these two: increased numbers and increased rate
      • Also: If there are more statutes on the books that are really, truly unconstitutional, then you’re going to find more invalidations
        • why might this happen?
        • The post-conflict situation, or the new Const. situation:
          • prior to the adoption of new Const or end of conflict, there’s a bunch of stuff on the statute books, and the change makes those old statutes objectively unconstitutional
          • so you’ll observe an increase in the number of invalidations (and maybe even the rate?)
    • me: distinguish all these terms
      • my first sense is: “judicial activism” is used by e.g. Sunstein’s study to mean “a lot of invalidation of statutes,” such that Scalia is very judicial activist and Breyer isn’t – this seems to be how T. is using the term today
      • but conservatives use “judicial activism” to mean: Warren-court-type invention of unenumerated rights (like the “penumbras and emanations” move in Griswold) – not just the rejection of original intent, but the rejection of interpretation of the text altogether? citing as sources of the decision sources outside the text?
      • versus my first sense of “juridification” could also be distinct from any question of invalidation: juridification could theoretically just mean increasing involvement by the courts – maybe they start reviewing everything in a hundred different ways, but never strike down anything
    • T. wd also like to label “judicial activism” when e.g. Pres. Bush claimed extensive executive authority w/ little or no Const’l justification – if ct.s had upheld that – if ct.s upheld a presidential action that was plainly prohibited by the statute, that should be called “judicial activism”
    • T: sidenote: the general story that’s told about India is that the judge’s capitulation to Indira Ghandi during the emergency led to a discrediting of the ct to which the judges responded (after the emergency) by becoming more activist in the sense of supervising the govt. by striking legislation down
  • AND: there’s an ongoing question regarding the existence of a political reaction(backlash) to increased judicial activism (so a fourth stage to the series of ->s above) – perhaps as in Israel, religious parties growing in strength in wake of Barak court?
  • Another sidenote: courts can act strategically by taking on cases where everyone sees a problem (Indian laborer case?) and using these to expand access to the courts
    • sidenote: Indian court took the initiative and changed things on its own so that it is now responsible for its own replacement
  • sidenote: when India became a nation, there were domains called princely states or something, and the maharaja of x owned a lot of land and had a lot of power, and in order to bring these regions into the nation, the deal was: princes give up land and formal trappings of power, and get substantially subsidies – then, 20-30 years later, govt wants to cut off subsidies. They embed this in a Const’l amendment. Princes come in and say: what you’ve done is inconsistent w/ the basic structure doctrine, the basic structure of the govt. The ct says: yes, we’ll listen to this basic structure argument (thereby validating their ability to say that const’l amendments cd be unconst’l), but you lose.
  • another example: affirmative action: a series of cases in which one of the states of India had an extremely aggressive AA program (quite a lot of people think it’s a bad idea) – held unconst by Indian Supr Ct – then reenacted, embedded in Const’l amendment – opponents challenge amendment as incompatible w/ basic structure (equality) – and they win.
  • the starting pt on Indian Supr Ct is often: they’re very activist but not very powerful
    • Epp says: b/c it dsn’t have sufficient support structure
    • another reading: this is strategic on Supr Ct’s part: throw enough stuff at the wall, some will stick

JURIDIFICATION (just descriptive term, w/o pejoritive overtones)

  • What is it? and What problems might be associated with it?
  • T: Important Q b/c in Stone’s exposition and in a lot of the literature, it’s not clear how juridification differs from judicial review. What T specifically means here is that there’s nothing wrong w/ striking statutes down if they’re objectively/really unconstitutional – that’s just judicial review. All of these systems are committed to judicial review.
    • So: one interp. of “juridif.” would be: striking down statutes that aren’t objectively unconst
    • Stone dsn’t say that – partly b/c he’s a pol. scientist, and he dsn’t want to say whether these things are unconst.
    • you cd also take a quasi-jurisprudential position that there’s no such thing as “objectively unconst.”
      • but that wd call into Q judicial review as a whole (me: would it?)
  • Juridicizing legislative politics: Legislatures will draft statutes in the shadow of the court – may be less willing to push the limits: they’ll come up with different resolutions than what they wd’ve come up with otherwise.
    • so: T: KEY: the idea of juridification turns out not to be about the behavior of the Const’l courts – it’s about the behavior of legislatures and executives properly exercising judicial review
    • Situation A: One risk of this: if legislature predicts wrong about what court would do, statute may never be drafted and ct.s will never get a chance to address const’l question – anyway: the option may not be the best option in terms of effectiveness.
    • Situation B: Another risk: even if they aren’t wrong about the likelihood of how the court will respond, they may simply be risk-averse, not enact the best statute.
    • KEY: Situation C: Legislature has its own theory of Const., thinks it’s right, but recognizes that ct disagrees and will strike it down.
      • This is another cost of juridification: reduces this kind of departmentalism (each department doing Const. analysis of its own): cts, not other bodies, are put in charge of determining meaning of Const.
      • Two varieties here: leg. thinks statute is Const. but knows ct will strike it down; or leg. thinks statute is unConst. but knows ct will uphold it.
        • T says: in latter case, Congress has obligation not to pass bill
          • e.g. Burton Wheeler saying: I think court-packing is good policy but wd be unConst, so I’m not voting for it
        • but dsn’t really happen all that often b/c there are so many ways for legislature to reduce their cognitive dissonance
    • Situation D: Another risk: moral hazard: Congress may not really want an outcome, but wants to score political points by enacting statute, knowing that it will be struck down.
  • Rem: the issue being explored here is Stone’s idea of juridif. as legislating in the shadow of the Const.l court, and he says that happens all around the world
  • The increase in the # or rate at which ct strikes things down might -> uncertainty at the legislative level, so that the risk-averse legislator might not vote for legislation that she wd’ve supported had the level of uncertainty been lower
    • sidenote: survey of members of Congr.: do you care about Const.ality? They say: I don’t know, but I listen to what lawyers on my staff say – and if memo says this is probably unConst., I’ll pay attention to it.
  • (me: throughout all of this, we seem to continually lose touch with cucial distinction: between a legislator’s or an individual’s theory of the Const, and their theory of what the court will say – could be completely different: if you agree w/ Thomas and see New Deal as unconst, and you ask your staff who also believes that for opinion, it may end up w/ entirely diff. outcome than asking for an opinion that incorporates Supr Ct decisions of last 100 years, stare decisis, etc.)
  • Note:
    • OLC has practice of evaluating const.ality of proposed legislation, when it has a chance to do it, and they work with a continuum like:
      • (clearly const’l)
      • Cont’l Qs
      • Cont’l risks
      • Unconstitutional
    • And one theory of juridification would be: the more important the policy, the further along the spectrum a member of Congress would be willing to go (toward unconstitutionality).
    • And this continuum is phrased as predictions about what the court wd do.
    • And note in Canada: the staff is even more risk-averse than members of Congress. Congr might say: 2/3 chance this’ll be struck down, we’re willing to do it. Staff might say: if there’s a 50% chance it’ll get struck down, they’ll say it’s unconst., and they’ll push to have the statute not enacted.
  • Q: unclear to me: Do courts have a line-item veto? If they say one provision of McCain-Feingold is unconst., does all but that provision continue in effect?
    • If so, then const.ality cd be extremely important in legislative bargaining. Leg.ors might strike a delicate balance, a very difficult deal, A gets x in exchange for B getting y, and then court strikes down x but leaves y in place.
  • A final point: re: problems of juridification: the courts use legalistic language which might be unsuitable for even legal analysis by Parliament. We lawyers have developed a specialized kind of lingo. We talk of levels of scrutiny, various tests, etc. But you can do legal analysis without them. And it might mean that juridification = use of court-developed legal analysis in a setting where more lay-type language would be appropriate.
    • Most dramatic example of this is about tiers of scrutiny: if leg. assistant said: this form of discrim. is subject to “rat. basis rev.,” therefore it’s Const’l – that’s just a mistake: it’s importing into legislative context the approach that courts are supposed to use once these things are enacted. The analysis should beseverity of impact, etc. – not rational-basis review.
    • Me: first point of semester I don’t understand.

***

30 Mar. 2009

  • Motive behind including consitutional principles in 1937 document of some kind in Ireland (missed first 25 minutes of class):
    • to allow opposition in Parliament to criticize majority’s policy not only as a bad idea but as a betrayal of constitutional principles
  • directive principles of public policy”: what is the purpose? (if not judicially enforceable)
    • 1. can be used to interp. statutes
      • could be used to interp. housing statute to give more housing to some group
    • 2. can be used as a defense against claims that gov’t’s action was unauthorized/unconst.
      • S. African case: landowner challenges expropriation plus compensation as a “taking” of private property w/o adequate compensation
        • the gov’t says in response: we’re justified in this action b/c we’re implementing/pursuing one of these directive principles
    • 3. can be used by courts to flesh out judicially enforceable rights – me: to fill interpretive gaps
      • occurred in both Ireland and India
      • Section A of Const has judicially enforceable rights; Section B of Const has directive principles of public policy
      • Courts in Ireland and even more in India have said: here we have a Section A right – judicially enforceable – and some piece of legislation violates this right. We have to figure out content of this right, so we’ll rely on some of directive principles of public policy
      • NOTE: this can get pretty radical, end up looking like the directive principles themselves are being enforced
  • “Directive principles of public policy” could also be a good idea as a good way of avoiding having a sham/aspirational constitution while still capturing aspirations w/in the constitution
    • Though: one of the concerns about including merely aspirational concerns in the Const. is that their inclusion might undermine commitment to other provisions (by singling them out as directive principles)
    • also: connected to exchange between Tribe and Glendon where latter said: the Euro or Germ solution to the abortion issue is good b/c it names the problem as one involving innocent life but also has very few (she dsn’t quite say this, but…) material conseq.s on the ground; and Tribe responds: in the US setting, saying that something is right means that it ought to have material conseq.s on the ground – in US Const. culture, we cdn’t have merely aspirational rights in the Const.
      • T: that may be right – one of the things happening over remainder of the course is that notion of national distinctiveness will start to play a larger role again
      • and this may be one place where that will happen
  • T: Final point on aspirational value of these things:
    • one of the way T will frame this issue is: Should Const’l designers include social welfare rights in Const?
      • That Q is in fact not open to Const’l designers today
      • As a matter of practical design reality, nearly every Const. since 1945 has certain welfare rights in it
    • The reasons for this are all in some way related to the existence of historically or currently powerful socialist movements in countries doing Const’l design –
      • e.g. in C. and E. Euro after 1989, people had had at least nominal rights to housing, etc., and they weren’t going to give that up
        • see material on Hungary in today’s reading
      • or e.g. in post-1945 Euro outside Soviet bloc, socialist movements were politically powerful and had to be accomodated
      • and it’s not just socialist movements – in Euro, there are also Christian Democratic Parties (Catholic parties, influenced by social teachings of Catholic church, Pope Leo’s De Rerum Novarum 1892 committing church to social programs as a response to the problem of socialist appeals to working class – “we must assure them that church is also committed to their well-being” – and that’s restated 40 years later by Pius in encyclical called “40 years on” (Quadrigessimo Anno) – and then again in 1988-89, John Paul also reiterates the social teachings)
  • So assume that we’re going to have some kinds of social welfare rights in Const: to what extent shd they be enforceable?
    • As directive principles, they’re not enforceable, at least directly, at least nominally
    • First Q: so let’s begin by thinking about what it would mean to say that a right to health/medical care was fully enforceable?
      • World’s leading case on this: the Soobramoney (South African) case (p. 1697): a person w/ chronic kidney disease says the Const. says he has a right to medical care – and this means I have a right to dialysis. The minister of health says “We have limited resources and we have a priority list of who gets the dialysis services first, second, third, etc., and you’re too far down the list – actually, you don’t qualify at all – you’ve had chronic renal failure for too long” – the guy says: “if I don’t get it, I’m going to die” – which is true – and S. African Const. Ct. says: “Sorry, the Const.l right to med. care dsn’t give you an entitlement to a dialysis service that you need in order to keep you alive.”
      • T: if right to med. care is fully enforceable, what the litigant seems to be saying is: I am entitled to health-care expenditures necessary to keep me alive – even tho resources in the med budget are limited. I get to court first, I get the right to the dialysis machine. (But that means somebody else dsn’t get access! Which means that person’s right to health care is being violated.) Resolution then wd be: increase expenditure to kidney dialysis… with result, if logic is followed further, that court gets control over budget of state.
    • What T wants to say is that xxx and (KC?) treat the social rights as judicially enforceable but not FULLY judicially enforceable (not a right for any individual who satisfies the terms of the entitlement – “I’m going to die if I don’t get this treatment, so I must get the treatment”)
  • T: The problem that we’ve identified with a fully enforceable right is its impact on the state budget process
    • no matter how you play it out, you’re going to have this problem
      • there are either going to be reallocations w/in the medical care budget, or to the med. care budget – it’s just inevitably going to happen
    • but there’s a second consequence as well (noted in passing above): if you have a fully enforceable individual right, then who gets to court first gets the benefit
      • and as we saw earlier in connection with the support structure, who gets to court is not a neutral phenomenon – so if you have an individual right to medical care, then the people with better resources will get to court to claim the entitlement
      • and in Brazil, this happened: the gov’t controls the distribution of prescription drugs, so you can’t buy them no matter how rich you are, must go to gov’t pharmacy (oversimplifying) – so there’s this drug that’s very useful, a standard cholestorol-lowering drug, not terribly expensive, but if everybody had it, it wd be expensive – gov’t has limited amount of it – people go to pharmacy and say, “I want the drug,” pharmacy says no, so they go to court and sue. And the courts one after another grant relief.
        • T says “one after another” b/c Brazil is civil law system in which as a formal matter there’s no such thing as precedent
        • as a result, there are a very large # of trial-level orders directing gov’t to give this drug to many people, mostly middle class
        • effect: Ministry of Health obeys court, changes its policies re: distribution of this drug
        • (T dsn’t know what they had to give up to get this result… Minister of Health had been in jail for contempt of court)
      • What’s hard to know is the overall effect of this change on health care in Brazil – a hard question. It may be that everyone is getting this drug, but not another drug – until they start suing about this drug.
    • T: Brazil illustrates: It is possible to have a fully enforceable individual right to healthcare.
      • Exactly what the conseq.s are, nobody is quite sure
  • Asahi and Dandridge cases: an alt. view re: fully enforceable social welfare rights, an alt. to Subermuni.
    • Dandrige: US state limited public assistance to cert families, said: every person needs $500, so 2-person family gets $1000 – but we’re placing a cap on this, so if you have 7 person family, you get $2500, not $3500. Say $2500 is the cap. Litigants say: we’re not getting the money that state itself says we need.
      • (Asahi is similar pension case in Japan)
    • Both cases say: these rights are fully enforceable, but they aren’t violated in these circ.s, b/c we give a lot of deference to legislative decision about how to allocate money in public assisatnce programs – so as long as state has made rational decisions about allocation of money w/in public assisatnce budget, then there’s no violation of the individual right – you have a right to rationally defensible policies re: healthcare.
    • Maybe that’s the way doctrinally to undrestand what the ct says in Subermuni: the ct says that the priority scheme the gov’t has is rationally defensible, therefore your individual right is defined as an entitlement to be subject to rationally defensible criteria.
    • Sidenote: courts that apply this standard almost always uphold the regulations
      • tho: in other case today, court comes close to saying: gov’t policy here isn’t rationally defensible
      • T: probably not right
  • GROOTBOOM and Direct Action Campaign (TAC?): leading cases re: what the court does about the enforceability of these rights (health care in latter). The litigants in both of these cases took the position that the S. African constitution gave them a right to what they called a minimum core of health care and housing. This idea has played a role in the (jurisprudence) of the UN Human Rights Committee (which has jurisdiction over the Int’l Covenant on Eocnomic and Soc Rts). The Committee developed the notion that there was a minimum core, and the litigants in these two cases said: we think you shd adopt the jurisprudnce of the H R Comm into the jurispr of S Afr Const Law. S Afr Ct responds: no, we’re not going to do that. It has a number of reasons, one being that the idea of a minimum core is too complex for courts to administer. A second is that the human rigths comm dsn’t have much expeirience in dealing with this idea – they’ve articulated it, but haven’t really worked it out, applied it. Also: the HR Comm dsn’t have governing responsibility. All that it ds is issue reports that are designed to place moral pressure on gov’ts to copmly with the int’l covenant. Versus we, the S Afr Ct, do have governing responsibility – our decisions have legal consequences. It’s easy for someone who’s merely putting pressure on govts to come up with substantive standards like “minimum core” b/c they don’t have any responsibiltiy for enforceing it. But if we said this, we’d have to enforce it! And that’s not something that we’re comfortable doing. So the court rejects the minimum core idea, but it does treat these rights as judicially enforceable. What is the enforcement?
    • TAC: The gov’t has retrovirals that dramatically reduce rate of HIV transmission from mother to child. If mother takes 1-2 doses of drug, rate of transmission dramatically drops. Govt says: we’ll make this drug available at a few research venues, but not every hospital. Then case proceeds on two tracks:
      • on real-world track, what’s going on is that the then-President of S. Afr. was known as HIV denier – didn’t believe that AIDS was caused by “HIV virus” (T: redundant – shd be the HI virus), thinks the drugs are colonial effort by drug companies to get more money from Africans. Mbeki’s Minister of Health was even more explicit.
      • on other track, the govt’s offering reasoned explanations for what it’s doing
    • Court recognizes what’s really going on – Mbeki as HIV denier – so gives no credit to govt’s articulated reasons.
      • Ct says: the drug must be administered in such a way that people understand what it’s doing
      • Also: govt’ says: this is a research issue: what we know is that HIV is an extremely adaptive virus – it mutates in response to challenges so as to escape from effective drugs – and gov’t says: we worry that if we distribute this, people won’t follow regime strictly, virus will mutate, become drug-resistant. (As happened w/ tuberculosis.)
      • Gov’t says: we’re worried about that happening w/ HIV. And in fact they were right to worry – there are now studied: women taking this drug… there are mutations of HIV resulting from this…
      • T: So gov’t’s position is not crazy.
      • But ct in TAC says: we don’t credit the gov’t’s position – easy enough to set up these distribution networks everywhere in the country.
      • By the time litigation is concluded, there’s been enough pressure that gov’t is willing to distribute the drug widely.
  • IN SUM:
    • We started out w/ SOOBRAMONEY: fully enf.’l (in a certain way) indiv rt has budgetary conseq.s that cts are worried about
    • Then ASAHI and DANDRIDGE: if you make the rt fully enfo’b but only re: gov’t policies w/ no rational justification – then you escape a fair number of SUBERMUNI’s problems
    • TAC can be read as a case saying that the gov’t policy is not rationally defensible.
      • tho as T said: if you have a weak sense of rationality, the decision is just wrong
      • but maybe you cd say (borrowing from US cases): TAC involves “rational basis review with bite”
        • ct.s have to have some modest degree of confidence that the gov’t’s defense fits the real world
      • T’s view is that the gov’t’s position in TAC actually did get across the threshold of some degree of plausibility. Most people think it dsn’t.
    • Finally: there’s the GROOTBOOM case, which is different: similar in one respect, different in another.
      • T. will only have time to do similarity, tom. we’ll go to differences:
      • The similarity is that in GROOTBOOM, you have people who (as ct says) are in desparate straits – they’ve been evicted from the housing they had – they illegally occupied excess land owned by white landowners – they say they have right to housing
      • govt’ says: we have a plan to provide housing to needy, and we’re implementing it – we just haven’t gotten enough done for these people
      • what court says (similar to TAC minimal rationality or min-rat-with-bite test): in general, having housing program wd be fine to satisfy const’l right to housing – but your housing program dsn’t have a component specifically directed at people in desparate straits – so you have to come up with a plan that does this.
    • T said two things about GROOTBOOM:
      • 1. it’s in some ways a proceduralized version of the substantive right to housing. It dsn’t say yu’ve got a right to a house, ror even a right to a house in five years. It says that the rt to housing means that the govt has to have a housing plan dealing w/ people in desperate straits. T wd characterize this as a procedural approach: you don’t get a house, you get a plan.
      • 2. T thinks this is very similar to a rational basis test. If you have a program for building housing for poor, it’s not rational to fail to have component specifically directed at those in desperate straits.
  • Tom: What Sunstein calls the administrative aspect of GROOTBOOM
    • then the Kross excerpt
    • then the Hungarian material
    • then at last part of class, state action material
      • really hard, he thinks it very important, he never knows whether he shd teach it or not

***

31 Mar. 2009

SOCIAL and ECONOMIC RIGHTS

  • Distinction: judicially fully enforceable rights
    • an indiv. claimant wd be able to obtain the benefit, the material resource that was denied –
      • e.g. Subermuni – claim for dialysis machine; and we discussed the difficulties of full judicial enforcement and the effects on budget; brought up the Brazilian experience – mid-level prescrip. drugs – in order to indicate that full judicial enforcement exists at least somewhere in the world, here in Brazil;
      • also discussed the Asahi and Dandrige & Williams cases: court says there is a right here, the Const does protect the right claimed here, but we’ll eval the Q [“has the right been denied?”] by using a standard that’s extremely deferential to the legislature – so: there’s in a sense full judic. enforcement of a right, tho a weakly defined one;
      • then we looked at TAC [Treatment Action Campaign] and there, there’s some ambiguity about what the court is actually doing –
        • it ends up req.ing the gov’t to provide the ARV everywhere in the country – but why does it do so?
        • T gave realist/political account of why they did so –
        • the legal account seems to T to be the application of an unreasonableness standard – the govt’s grounds for failing to provide the drug everywhere in the country don’t satisfy the standard of having a reasonable basis for everything we’re doing –
        • and then T raised Q: were the govt’s asserted reasons indeed unreasonable?
          • and T noted 1. the gov’ts position that the drug had to be administered under some degre of med supervision in order for it to be effective
          • and 2. the govt’s concern about long-term conseq.s of administering the drug, given adaptability of HIV virus –
          • both 1 & 2 seem to T to get above a threshold of minimum raitonality of the sort applied in Asahi or Dandrige & Williams –
          • so T suggested that what was going on was the application of some enhanced degree of rational basis scrutiny –
            • in US version might be called “rational basis with bite”
        • note that the degree of supervision that even the govt’s insisted was necessary was relatively low (you just need to take the drug 1-2 times, no particular follow-up) – so saying that administration must be under med supervision, while not irrational, is not particularly strong reason –
          • T thinks the lack of knowl. of conseq.s is a more serious objection
    • versus not fully enforceable right
  • T: the enforcement of soc/econ rts in courts will inevitably have a kind of legislative character – courts will have a role in allocating budgets of the sort that we typically assoc w/ legislatures – (assuming the cost of the soc/econ rt is more than negligible) – tho this isn’t necessarily a criticism.
  • Also: it is part of the discourse in this area that executive govts in particular raise separation of powers concerns about judicial enforcement – most notable examples are from Irish courts, where they’re framed the issue as a separation of powers issue – which, it seems to T, is analytically unhelpful (b/c of previous note: to say there’s a sep of powers problem is to resolve the question without addressing it – to say there’s a sep of powers w/ judic enforcement is just to say: no, we don’t have a system w/ judicially-enforceable soc/econ rts).
  • GROOTBOOM case: not a remedy of directly providing the material resource (v. TAC – or v. Subermuni, where the remedy wd’ve been: you get a dialysis machine) – the remedy here wd’ve been to made housing available – instead, it ends up being: the govt. must include in their housing plan an element addressing the needs of those in desparate straits.
    • so: the remedy is a planning remedy rather than a provision-of-resource remedy
    • T: a # of Qs can be raised about this, e.g.:
      • how do you monitor the govt’s compliance w/ the remedial order?
        • you cd say – and this is GROOT says, if T has it right – the govt has obligation to come up w/ a plan that includes a provision for those in desparate circ.s, and if they fail to do so, or if they come up with a plan that the GROOT litigants think is inadequate, those litigants can come back to the court to challenge the plan as inadequate – so the burden of monitoring wd be placed on the challengers.
          • one pt to note here: the connection btw this approach and the support structure we discussed before spring break: if you say litigants are monitors, then you have to be pretty sure they’ll have the resources to come back to court
          • the alternative would be a burden-shifting approach, where the ct wd say: the govt has obligation to come up w/ this plan, and they’re required to report to us in 6 months. And at that point (then it becomes tricky), the litigants will have opportunity to challenge the component as inadequate… again raising support structure kind of problem
    • one thing worth observing: there’s a fairly widespread view that the support-structures in S Africa are pretty good. People say: it has a vigorous civil society. TAC is generally regarded as S Afr’s most effective civil society org. (Tho, sidenote: there’s some conflict over whether you include business org.s as “civ soc” org.s – if you do, then some of them are more effective than TAC.) (The litigation in Prufume was supported by another quite well-established and vigorous public interest law group)
      • So: in S. Afr you have these support structures
      • In other nations where you might interested in enforcing soc/econ rts, the support structures are significantly weaker, or less dense/thick.
      • and this means: if yr interested in enforcing soc/econ rts, you probably don’t want a remedial scheme that requires an effective support structure
      • to put it affirmatively: In a nation that dsn’t have an effective support structure, if you want to enforce soc/econ rts, you prob shd incline twd favoring “material resource” type remedies rather than “planning” type remedies of the sort done in GROOT.
    • Final note: there’s a RECENT CASE in S Afr that T regards as conceptually in the same area as Prufume
      • facts: a number of housing units in a city that are substantially out of compliance w/ minimal health and safety rules – they’re falling down, getting polluted water, etc. But there are people living in them (b/c housing is not good in S Afr) – the govt institutes a proceeding to evict the occupants of these bldgs from them so that the bldgs can be demolished – and the claim is: these are unsafe, people shdn’t be living there. The residents say: but we have no place left to go. So what yr doing is throwing us out into the streets – into the condition that the Prufume litigants faced.
      • The ct says: the govt’s got a valid interest in getting people out of these unhealthy circ.s – but given that they have no place else to go, they have an obligation to discuss with the residents other ways of addressing the unsafe and unhealthy conditions in the building – e.g. focusing on the polluted water – the litigants have told us that there are other bldgs w/ polluted water where the govt trucked in water. What the govt shd do is discuss w/ the residents of these bldgs whether that option cd work here. They’ve done it elsewhere, why not here? Maybe they have reasons, but they at least have to talk to the people about what they’re doing.
        • again: the remedy dsn’t say: improve the quality of the buildings
        • the remedy is: discuss w/ the residents alternatives to evicting them
          • (T: seems like just a duty to discuss – perhaps not even a duty to accept an alternative that the ct might think reasonable)
          • as in Prufume, the ct seems very willing to assume good faith on the part of the govt – will assume that the conversation is conducted in good faith, and that if the residents came up w/ some reasonable alt, govt wd take it seriously
  • Note: Brown II was what T is calling a “planning remedy”: gave schoolboards time to develop plans, etc.
  • The remedial decision was made in 1955 – and for all practical purposes, nothing happens in Deep South for 10 years – schoolboards do come up w/ plans, but the three favored plans are 1. freedom of choice plan (any kid can enroll in any school in the district) (that dsn’t work b/c of intimidation/terrorism re: black families that want to send kids to white schools) 2. pupil-assignment plans (schoolboard says: we’re going to assign students to schools on the basis of the following criteria: academic accomplishment, ability to get along w/ others, etc.) (but these don’t work b/c lo and behold, schoolboard says: applying these criteria, all the white kids go to one school, all black to another school) 3. two variations on integrating one-year-at-time plans (integrating kindergarten, then 1st grade, etc.; or 12th grade, then 11th) (but these plans take a long time, and the first kids in the program are always under an enormous amount of social pressure)
    • after 10 years, Congress passes a statute providing fed financial support for primary/secondary education (for first time) and says: if you receive this money, you can’t discriminate
      • and relevant court says: if you’re not desegregating, then you’re discriminating
    • and in 1968, Supr Ct says: the time for deliberate speed is over – you now have to eliminate racially-identifiable schools as quickly as possible – then era of busing starts, etc.
    • T: note: when Brown was reargued on the remedy (in 1968?), someone said: it’s a “personal and present” right to be treated equally w/ everyone else – there’s no particular difficulty in enforcing this – just have to stop taking race into account – may take 6 mo.s to figure out school boundary lines. The ct rejects that argument for (T) basically political reasons, and adopts the “all deliberate speed” remedy.
    • Once we have these planning remedies on the table, we can now see them in a different kind of light.
      • Imagine Prufume-like situation: court says plan is needed; one is developed; court says: there are still problems; govt goes back and addresses problems; ct says yes or no to the plan
      • this is probably ct’s image of how the “deliberate speed” remedy wd work (tho it didn’t work that way)
      • The natural term to attach to this process is: dialogue – between the cts and the housing ministry, e.g., about how to satisfy const’l obligation to e.g. right to housing.
      • We’ve seen the idea of dialogue before in connection with classical first-generation civil and political rights
      • the idea now is: given the availability of dialogic forms of review for both kinds of rights (1st gneeration classic civil and pol rts; and 2nd generation social and econ rts), maybe we don’t have to distinguish between these two kinds of rights.
  • One of the things that makes Prufume in particular so interesting is that it fits together in the way T just described with not trad US-style strong-form review but w/ weak-form review assoc’d w/ Canadian notwithstanding clause or Brit HR aAct and allows us to see how modern Const.s (with their recognition of social and econ rts) might not be all that different from classical Const.s that dealt only w/ civ and pol rts.
    • if all you had is strong-form review, then you’ll worry about enforcing soc/econ rts
    • if you have weak-form review available, you won’t – but you may have to worry about the enforcement of civ and pol rts
      • allowing override of e.g. right to free expression may be problematic, we said
      • T tried to argue that this might not be problematic in some situations, but a lot of people still find it problematic
  • SO: IN SUM:
    • orthagonal:
      • distinction btw strong (US Marshall ct) and weak form (HR Act) review
      • and we’ve got classical civil/pol rts and newer soc/econ rts
    • If we apply strong form to everything -> Subermuni problems re: soc/econ rts
    • If we apply weak form to everything -> nervousness about civ/pol rts
    • Natural third option:
      • strong-form review applied to civ/pol rts
      • and weak-form soc/econ rts
    • What wd be problems of this approach?
      • some of these problems come up in Cross article: if you use diff forms of review, you may damage the sense of rts generally (similar to what Holmes and Sunst said in earlier reading: it’s a bad idea to include merely aspirational rts in Const b/c that will damage newly emerging democracy’s sense that the other rts are really valuble and enforceable) – Cross says: suppose you have some degree of enforcement of soc/econ rts – you might still damage civ/pol rts, b/c people will see the former and figure that maybe civ/pol rts should also be subject only to weak form enforcement (even tho as a formal matter the system’s committed to treating the two kinds of rts differently).
      • T: a possibility that has to be considered
        • T: I don’t think we have enough experience w/ weak-form enf.ment of soc/econ rts to know whether Cross’s concern is smthg to worry about in real world
        • BUT – T needs to think more about this – but he’s not sure that any system has clearly committed itself to this bifurcated structure
  • sidenote: tho we don’t have soc/econ rts in US, we find this foreign, nevertheless, US constitiutalists end up arriving at conclu that it’s a bad idea – we come up w/ principled reasons for not doing it. The comparative pt is: it’s done elsewhere in the world – they know about these objections in principle, and sometimes – as in Irish case mentioned – will sometimes rely on these objections. SO: The account that we have for whether soc and econ rts are enforced or not has to be culturally/socially specific to the nations that we’re dealing with.
    • anyway: worth Qing: maybe the relevant Qs re: soc/econ rts aren’t these Qs of principle that US Const’l commentators tend to dwell on – but rather Qs of national differences: why does one system have these and another dsn’t?
  • Final note before turning to state action stuff: The Hungarian material at end of chapter (1709).
    • What happened in Hungary was: post-transition, the gov’t was in bad shape – in order to promote economic recovery & growth, the govt sought and obtained loans from int’l financial institutions – but these institutions imposed conditions. Govt passes statutes suddenly, drastically revising benefit schemes.
    • The statutes are challenged before Const. Ct., and ct says they’re inconsistent w/ the “principles of legality,” which in this context mean: the idea that the rule of law must be sufficiently stable so that people’s reasonable expectations about their life prospects into the future are honored.
      • easiest version of this: the child benefit provision – there are women who got pregnant and had children on the assumption that they’d be able to support children using child-benefit payments. Take away that money all of a sudden and you are defeating those reasonable expectations, and that’s inconsistent w/ the principle of legality.
    • the ct says: we’re not saying that you can’t revise your welfare scheme/your benefit scheme – we are saying that when you cut them, you’ve got to phase in the cuts so that people can adjust their behavior to what they will know is coming.
      • so: you can tell the woman that her child benefits will gradually be reduced – and knowing that, she can adjust kind of clothing she buys for infant, etc. – and that’s okay. You just can’t do it all at once
    • T: Interesting example of general invocation of (principle of legality) in the context of social/econ program.
    • Then: debate btw
      • Shioh (very prominent Hung. const.ist – this article known as the article that defeated xxx missed; anyway, says: govt just has to do this to get the money, to develop, etc.)
      • and Shetley (says: int’l financial institutions accepted the decision of the Hung Const Ct – they gave the money to Hung even tho govt cdn’t comply w/ conditions they’d imposed – T’s guess is that technicaly conditions were revised)
      • so: Shio was wrong about how IMF wd respond – and he was wrong about effects on Hungary – which is now one of leading 2 post-communist success stories – the econ. problems Shio predicted just didn’t occur
    • also connects up w/ something we read earlier, tho didn’t discuss in class: Shetley recognizes that the IMF accepted what the Hung Const Ct did for two reasons (which she dsn’t sharply distinguish):
      • 1. it invoked a principle of legality to which the IMF was itself committed
        • the IMF (actually, the World Bank) has these rule of law programs – they really want their loan recipients to follow the principles of legality – such as that reasonable law-based expectations should not be defeated – they think this is good for econ growth in general that nations observe rule of law principles
        • so when Hung Const Ct said what it sd, World Bank has to at least pause and think about what it’s doing
      • 2. int’l financial institutions want to support good-faith decisions by Const ct.s
        • (slightly different than 1 b/c, had Const’l ct relied on free-speech idea, v. principle of legality, IMF still wd’ve wanted to support it – supporting the Ct as a component of a rule of law system)
    • so: an interesting interaction here btw domestic con law and external forces
      • we saw this Q in context of Japanese and German constituions
      • this is another interesting variant on that kind of interaction
  • then followed brief discussion of Australian “matehood” tradition (as in “put a shrimp on the barbie, mate”) – social equality (no tipping, sit in front seat of taxi, etc.) – footnote: republican movement (movement to make Austral. formal republic) failed b/c included phrase “matehood,” extremely bothered feminists
  • STATE ACTION:
    • T: you set the rules of property and contract, and you let them run – that’s what capitalism is, and the more comfortable you are w/ that, the more uncomfortable you’ll be w/ interfering w/ outcomes – and in a place like Singapore, there’s a tension btw community responsibility ideal and unbridled capitalism (it has been resolved by tremendous econ success, where bottom is pretty good)
    • will talk through state action Mon for 15 min.s… b/c made us read them… then turn to emergency power material

***

  • Next up:
    • State action
    • Emergency powers
      • specific provisions in Const.s
      • more general: re: justiciability etc.
  • STATE ACTION
    • will proceed by laying out 3 classic cases, one of which we’ll prob. look at again re: free expression (German Luth decision)
    • the 3 cases raise q.s of compar. judicial rev.
      • Germany: Luth
        • facts (not in this section of book): Film director named Harlan directed films during Nazi era, one of which was a central propaganda film for the Nazis – and after the war, he continued to work as a producer/film director. He’s made a new movie, and this guy, Luth (as director of an NGO – thus, in capacity as private person), issues a statement saying: I think everybody shd boycott Harlan’s new movie. Harlan seeks injunction of Luth’s pro-boycott statements, on ground that they’re like a tort or an invasion of privacy – interference w/ Harlan’s occupation – a civil wrong – dsn’t really matter.
        • Luth says: if you (ordinary civil ct) issue an injunction against my distribution of pro-boycott statements, you’ll be violating basic law of protection of freedom of expression
        • Harlan and lower ct.s say: the basic law simply dsn’t apply here – dsn’t apply to private people – it applies, like all Const. rt.s do, to the govt. So: if you’re stopped from making a statement, your const. rt.s aren’t violated.
          • and if Luth is bound by the Const., what that means is that he has to conform his behavior to the requirements of the Basic Laws…
          • and that’s a problem (the lower ct.s suggest): consider the following situation: move it into an employment context, w/ discrim. on basis of political views: the lower ct.s say: look, if the Basic Law applies to private actors, what that means is that a private employer cd not fire someone for being a socialist – and we can’t have this
          • it wd mean a bakery cdn’t say: We’re a Christian bakery, and we hire only Christians to bake our goods.
          • and this wd be troubling
          • tho clearly the govt cdn’t say: we hire only Christians
        • T: The terminology for this notion: giving a Const. “direct horizontal effect” (= imposing Const.’s restrictions on govt. action to private action as well)
          • Because of the scope of modern Const.s, most Const.’l systems are very leery about giving direct horizontal effect to the Const.
          • tho the S Afr Const ds have provision, says: Const. rt.s are applicable to private parties to the extent that it makes sense to do this…
        • SO: ct. issues injunction of Luth’s further boycotting.
        • Note: Germ. Const. Ct. says Luth is not a state actor bound by Const., ord. ct.s are state actors, and what they shd do is shape the law of civil wrongs w/ an eye to the Basic Law. (v. Shelley v. Krmaer, they don’t simply say that the issuance of the injunction violates the basic law; what they say is: in considering whether Luth had violated the civil law, lower ct didn’t take into account basic law; and Germ Const Ct says this was mistake: the Basic Law has to influence the development of the general law of e.g. tort. So Germ. Const. Ct. remands to lower ct to consider whether general law of torts shd be modified to take into account the basic law’s interest in freedom of expression.)
          • This is called giving the Const. “indirect horizontal effect”: the Const. shapes the general law, but isn’t directly enforceable against private parties.
      • US: Shelley v. Kramer
        • facts: purchaser seeks to buy a house, property, from a seller, and seller is willing to sell to buyer, but the property is subject to a restrictive covenant that says: seller will not sell this property to an Afr-Amer, and buyer is an Afr-Amer. Buyers are willing to engage in this transaction, but a nieghbor says: this prop. is subj to restrictive covenant that benefits the community, including me, so I’m entitled to seek an injunction of the sale.
        • Ct. concludes, based on state property law: you can’t have a restrictive covenant that says: seller can sell this property only to descendents of John Smith of AK – b/c there’s onl a small # of people in that category – but you can say: this prop. can only be sold to people who currently reside in MO. Lower ct says: this racially restrictive covenant is permissible b/c it dsn’t restrict sales in too narrow a way. And they issue the injunction. The US Supr Ct says: while it’s true that buyer and seller aren’t bound by the Const., the State Ct is, and when it issues injunction, it’s a state actor, and it’s violating the Const. (for reasons going to 14th Amend. doctrine – which T. finds problematic; but that the lower ct is state actor T dsn’t find problematic)
        • so: the issuance of the injunction is a Const. violation
      • Canada: Dolphin Delivery
        • facts: union engaged in strike, and one employer sets up a secondary picket line around somebody who’s got a contract w/ employer. In labor terms: urging a secondary boycott. The lower ct.s say: secondary boycotts are generally unlawful; so they issue an injunction against the picketing, as a tort (tortious interference w/ benefecial business relations). The union appeals to the Can. Supr. Ct.
        • In a very procedurally messy situation, the ct says: the Charter dsn’t apply at all. So free speech considerations are just irrelevant to determining whether the injunction was properly issued or not. (simplified0
        • So that’s the end of the case
        • BUT: fastforward 20-25 years: similar secondary-boycott case comes to Canadian Supr Ct., and what they say is: We have authority to determine what the law of tort is in Canada, and we say that there’s no tort here. Secondary boycott isn’t a tort. So there’s no relief. And one of the reasons we say this is that there are considerations … (missed), but the holding is that there’s no tort.
  • In these three systems, we have 3 diff. Const. structures of judicial review:
    • in Canada, we have a unified structure in which the Canadian Supr Ct has the authority to det. what the Const. means and to develop tort law – general BG rules of tort/property/contr. It can either do Const. law or common law.
      • in Dolphin case, it says: We’re not going to do anything about Const. – we’re not going to say free expr. entitles you to engage in secondary boycotts. BUT it says in 20 yr later case: we’re going to decide as a common law matter that there’s no tort.
    • in US, the US Supr Ct has no authority over the state law of property – has to take this law as it comes. And so, if the lower ct says (as here) under our law of property, this restrictive covenant is sufficiently broad to be enforceable, that’s it for the Supr Ct – it can’t change the law of property.
      • at one pt, Burger said: we shd just change the state law of property; and Black and Douglas sd: well, maybe nice, but we can’t do that
    • in Germany, there are the ordinary ct.s that do contr/prop/labor/etc law, and there is the separate Const. Ct. What Luth says is: we, the Const Ct., don’t have any authority to make property law or tort law – we can’t say, as the Canadian Ct can, what property or tort law is. But we can say we have responsibility for the Const., and the ordinary ct.s didn’t worry enough about what the Const. meant for prop/contr/etc. law. And when they do that, they’re saying: every ct in the country has to worry about the Const. – thus, decentralizing the system in some sense.
      • Tricky Q: As a practical matter, there are too many cases w/ Const. issues in ord. ct.s for the Const. Ct. to police them all – so what they do is say: if the lower ct shows that it has thought about th Const., directed its mind to it, and it’s come up w/ a plausible/reasonable result, then we don’t have jurisdiction to review it.
  • Two takeaway pt.s:
    • #1: Const.l structure matters: the state action issue is diff in Germ and the US from what it is in Canada, b/c in Canada they can avoid the state action problem by developing the BG law of tort in a way that will not violate the Const.
      • understand this
      • US Supr Ct can’t do this b/c of federalism; Germ. Const. Ct can’t do this b/c of difference in specialization btw Const. Ct and ordinary ct.s
    • #2: (as you see in regular Con Law course) The state action issue isn’t really about whether state ct.s are state actors – it’s about the constitutionality of the BG rules of prop/contr/tort. So, in NY TImes v. Sullivan, no state action issue arose – the only Q was: was the common-law rule of liable applied in Alabama constitutionally permissible. And again, they had to take Alabama’s law as given.
      • what makes SHELLEY a difficult case in US (as a US Const. pt) is that it’s actually, as the law of unconst. race discrim. developed after 1948, it’s pretty hard to figure out why a rule allowing racially restrictive covenants is unconst., when the ct. says: we’re not approving racially restrictive covenants as such, b/c they fall into the gen. category of restr. cov.s that are permissibile b/c they fall into this category of sufficient generality
      • Me: KEY:
        • Tribe takes position that Missouri property rule (we enforce rest. cov.s so long as they’re sufficiently general) just was racially discriminatory
        • T thinks this is just wrong
          • under Const. rule of “disparate impact,” such rules are unconst. only if they are intentionally designed to discriminate – and you can’t make that case with regard to Missouri rule
    • as said last week, point #2 is very complex – point #1 less so

EMERGENCY POWERS

  • First issue: Emergencies occur in a lot of diff. ways. The materials and the world in which we’re living thse days include us to think that emergencies are about national security in one of two senses:
    • there’s an external threat to nation, such as an invasion
      • in US Const, habeas can only be suspended in case of invasion or civil turmoil
    • or there’s internal disorder
      • in US Const. “rebellion”
  • But in fact emergencies occur for a lot of different reasons
    • natural disasters, e.g. – gov’ts commonly believe it’s appropriate to invoke emergency powers in the wake of one
  • 1. What does invoking e. p. mean?
    • The suspension of otherwise applicable law
    • Many if not all of the rules in force are suspended – the gov.t dsn’t have to follow the rules that are in place for non-emergency situations
  • 2. When are e.p. invoked? A wide range of possible circumstnaces, e.g.:
    • In natural disaster emergencies, there can be rules in place about whether a legislature has to authorize an executive to deploy troops, e.g.
        • but in a natural disaster emergency, it may make sense for the executive to say: we may need to call troops in
        • think of Katrina, or the earthquakes in China a few years ago
        • the local civil authorities have been so disrupted that they can’t provide the things we ordinarily assume local authorities will provide, like defense/police services, so we have to send in nat’l govt.
      • so: a structural point: national v. local sent in
      • similar things can happen re: leg. v. exec.: conversion of exec. into leg.
      • can also affect rights: might make sense to impose a curfew – b/c e.g. they’re impeding the inflow of recovery supplies – in other words, a restriction on civil liberties that wdn’t otherwise be allowed
        • or, e.g., during Katrina, controversy over power of local officials to confiscate weapons
      • key point is: exactly what emergency powers allow will be a point of controversy
    • Around the world, not uncommon for gov.ts to declare emergencies in wake of econ. disasters – e.g. enormous inflation of currency – so govt can get control before things spiral out of control
  • (T’s position: there’s nothing in principle wrong w/ having a regime of emergency powers that authorizes the suspension of some aspects of emergency law)
  • 3. Then: you do have to worry about what things can be suspended
    • bk quotes Euro Conv. (842) on what derogations can be made: time of war, threatening the life of the nation (also the lang. in the Fr. Const.)… you can’t derogate from right to life, protection against torture, couple of others.
      • ICCPR says: you can’t derogate through discrim. laws solely based on race/sex/etc. (The “solely” has to do a lot of work: you’re going to want to allow targeting of ethnically-based rebel group.)
    • notably dsn’t include: ordinary criminal protections, etc. (e.g. Miranda rule, jury trial rights, etc.)
    • and it dsn’t apply to freedom of expression (e.g. you want to be able to limit public assembly… but you’re also allowed to suppress publications that wd otherwise be protected by free expression rts.!)
  • 4. What do you do on the Const. level to make sure that the power to declare an emergency is not abused? b/c after all, it’s a really serious power
    • T: leading up to conclu. that none of these are satisfactory
    • T. thinks it is straightforwardly obvious that 9/11 was “invasion” in Const. terms (finds it hard to believe, but some people deny this)
      • note: this is very narrow – dsn’t include nat’l disasters – prob. dsn’t include things like riots in connection w/ S Afr rugby thing – widespread civil disorder not aimed at overthrowing the govt – looting in general probably isn’t a rebellion – might be able to stretch the term, but it wd be a stretch
    • Possibilities:
      • A> So: you have the US provisions at one end
      • B> Intermediate: you cd enumerate all the situations
        • you can lay out what provisions can be suspended in case of each emergency
          • government can do x re: quarantines, public assemblies, etc., but not re: free speech
        • Canada has a very detailed public emergencies act – never used
      • C> At other end, you have the extremely broad French language of “an emergency threatening the life of the nation” – cert. cd encompass econ emergencies (almost cert. was designed to encompass this) – ds it encompass localized natural disasters: Katrina/Chinese earthquakes/tsunami in Thailand – you cd probably go either way on that, which means it’s not terribly effective method of regulation
    • Why ds T think the enumeration approaches aren’t satisfactory? This is a point associated w/ Carl Schmitt.
      • Schmitt: look, suppose you have a list of emergency situations, and something happens that places a lot of pressure on somebody to do smthg, or gives them an opportunity to do smthg. There are two possibilities:
        • 1. the pol leadership will say: this fits into one of the categories that you’ve already set out
        • 2. or the pol leadership will say: this dsn’t fit into any of the categories, but our situation is so dire that we absolutely need to do something about it, and we are going to do something about it, notwithstanding that it dsn’t fit into one of the categories
          • this is a state of exception
      • and Schmitt said: in the real world, the state of exception will occur – if it dsn’t occur, your list is so comprehensive that they can do anything they want whenever they want to do it anyway
      • T: think about for US an event of domestic terrorism now: three possibilities:
        • you know it’s done by domestic terr.s – maybe you can characterize as “rebelliion” and suspend habeas
        • you know it’s done by people assoc’d w/ Al Qaeda – and maybe you can characterize that as “invasion”
          • tho. if it’s blowing up Mall of America, that’s not as good a claim as WTC
        • you don’t know who did it, but you worry that someone else is planning to do soething else, and it seems necessary to do something
          • this is when the state of exception comes in
      • Schmitt’s “sovereign is he who declares the exception
      • Schmitt concluded that the existence of this power to declare the exception meant that the rule of law was always vulnerable, and always justifiably vulnerable – he wasn’t troubled by this, b/c sovereignty was a good thing. But it’s smthg that leads to suspension of rule of law.
      • Schmitt was discredited b/c of assoc. w/ Nazi party. Was conserv. legal theorist during Weimar regime. In 1934-35, he gave a legal opinion to justify the displacement of the govt in one of the Germ. states (Prussia?) by the national govt. (a highly contested legal issue) – which was advice compatible w/ what Nazi party wanted to do. Tho he wasn’t a Nazi and his opinion was legally credible. In 1935-6, joined Nazi party, then resigned in ’38, b/c (he later said) he came to realize that Nazism was not trad Germ conservatism in a modern form.
        • the army officers in Valkyrie (Tom Cruise movie) went through same progression
      • (never held academic position after 1945) (lived into 1980s)
      • since ‘90s, before 9/11, a revival of interest
    • General model:
      • 1. Generally, executive will have authority to declare emergency in the first instance – b/c if emergency arises very quickly, you need to have somebody that can declare the emergency equally quickly. And legislatures can’t move as quickly as the executive.
        • Suppose e.g. that the triggering event for the emergency is an attack on the national legislature building at a time when the leg. is in session – they’ll just be wiped out, or a lot will die, and you can’t expect them to be able to act.
        • in contrast, if there’s an attack on a national executive, there will be a line of succession, etc.
      • 2. But within some specified period (30 days, 60 days) exec. must get approval of legislature – otherwise the emergency authorization expires
        • the S Afr Const has an interesting mechanism that Bruce Ackerman has recommended shd be more widely adopted. It says executive can declare an emergency, it has to be authorized w/in 30 days by the legislature. If the Pres. wants to extend the emergency beyond another 30-day period, at day 60 the leg. can reauthorize the emergency, but it wil take a 60% vote. And at day 90, it will take a 70% vote. etc.
      • what are the problems with these mechanisms?
        • T: Obvious political problems – these mechanisms may not operate as a constraint on the declaration or extent of emergencies
          • e.g., Ackerman says: after a terrorist attack, people will be afraid. Unless the fear dissipates quite rapidly, the 30 days will go by, people will still be fearful, and their representatives will authorize the emergency powers. So the notion that at least where there’s a credible claim by the executive that the decl of emerg was necessary, the notion that the passage of mere 30 days will operate as constraint seems implausible. (Maybe for nat disaster, but not for 2 kinds of national security problems.) (Ackermans, oddly for his proposal, emphasizes the unknowns after next attack – After the Next Attack is title of book – as in: after 9/11, there was very high level of uncert. about whether there wd be another attack – persisted at least 30 days, prob much longer – and it hasn’t persisted to today, which Cheney wd say is a problem: if you have terrorists of the sort that planned WTC attack, they have very long timelines, and the fact that there hasn’t been another domestic US attack may not tell you very much.) So: the fear will dissipate, but it may take much longer than 30 days.
            • and consider: under S Afr plan, at 90 days, 68% of people (huge majority) may want to renew emerg. powers – and they might be right! – but b/c of 32% obstructionists, they won’t be able to
            • T: seems likely to him that Schmitt will come into play, the majority will find some way to continue emerg. power
            • (also: you can get around the problem by amending the Const., if that’s easier than getting the latest emergency-continuation vote)
  • note: other reference points: Pakistan in 2007 (Musharraf invoking emergency powers, based on internal security problems – but also explicitly targeting judiciary); or India under Indira Ghandi (ending Lochner Era-like period – see earlier reading circa 710)
  • note: there will always be problems of bad faith
    • there will always be a temptation for the executive
    • but it’s going to be there
  • What do you do to deal w/ possibility of abuse?
    • the natural thing to say is: go to the courts (and this is what next case is about) – and ct.s will determine whether there’s genuinely an emergency
    • a number of things to say:
      • 1. the ct.s can be effective
        • it is often said that when you see them saying “this was abuse of declr. of emerg.” the emerg. is over, and the person has been discredited, thrown out of office, etc. – and then it looks cheap for court to do this
        • Verm. says: actually, that’s what’s happening in the US – elites/judges think we’re no longer in emerg. circ., that’s why they’re ruling against Bush admin now
        • BUT: T’s point: it’s not always true that ct.s do this
          • a wonderful case in which there was a military coup in Fiji – it had been unstable for ethnic reasons for a while – and finally the instability cracked – and from mil’s POV, the wrong party won – and mil thought elec was unfair – mil took over. They did a bunch of things, incl closing dist. ct.s (kept Supr Ct open) except for some reason they overlooked one trial ct – and a landowner whose land was taken by mil sued – dist ct ruled in favor of landowner on ground that mil coup was unconst. The D appealed to Supr Ct, and Supr Ct ruled against the military, and mil said: Okay. And left, turned gov.t back over.
      • 2. mostly, courts role over
        • if there are challenges to exercises of emerg power during period of what is perceived as emerg, they’ll approve what govt has done – most notably, India during the Emerg. Period
          • T also cites lawless case (Euro ct HR), ct deferring to Brit authorities about what was needed to suppress rebellion there.
          • and a fair # of cases in Pakistan – where coups were challenged and found not-unlawful
      • 3. they role over b/c they don’t have tools to deal w/ military
        • which is what makes Fiji example so unique
        • mostly, person who declared emerg. will say: you don’t know what’s going on, I’m just going to disregard you

***

7 Apr. 2009

  • Emergency powers: Fits into separation of powers argument: different depending on system of govt. If you have a parliamentary system (as in Canada or GB), it’s not as clear that an emergency powers approach makes sense – b/c the characteristic of a parliamentary system is that the exec. gov.t is drawn from the majority party in the legislature. If the PM of GB wants to declare an emergency, and you have a rule that you can declare an emergency only if you get Parl to go along, well, the PM will get Parl to go along.
  • SO: the notion that there cd be a legislative add-on (a kind of legislative check) to the declar. of emergency fits better within separation of powers systems than within parliamentary systems.
    • BUT: more general pt: that claim depends importantly on the structure of political parties in these two systems. E.g., in the US from 2002-2006, we had unified party govt – Pres.’s party had majorities in House and Senate – and Repub. party was a reasonably well-disciplined party.
      • So: that was e.g. of a sep. of powers system where leg. offered no check.
      • it mattered, tho., that Repub. party was very ideologically unified (v., e.g., Dem Party in US in 1950s)
    • AND: on the other hand, imagine a Parliamentary govt. based on a coalition of parties – it dsn’t automatically follow that PM wanting to declare emergency will get support from every party in the coalition.
  • SO: the more general pt: the structure of parties has significant implications for the way in which Constitutional regulation of emergency powers (and more generally lots of other stuff) will actually work.
    • you have to think not just about what Const. provisions say, but about what kind of party system exists in the nation you’re thinking about

SUBSTANTIVE v. SEP. OF POWERS CONTROLS ON EMERGENCY POWERS

  • Ex Parte Milligan: a court-marshal (military trial) is convened to punish a Confederate sympathizer.
    • 5 justices conclude: There are substantive limits on the power of the gov’t to use military trials. (sidenote: The limit is that if the civil cts are open and functioning, then you have to use the civil cts. / and civilian ct.s were open in Indiana / so use of military trials were substantively unconstitutional) (substantive approach)
    • The 4 other justices agree that use of mil trial was impermissible, but their reason is: Congr. did not authorize the use of mil. trials. But if Cong. hadauthorized these trials, they wd’ve been Const’ly permissible. (procedural approach)
  • Similarly, in Public Committee Against Torture, Isr. Supr. Ct. goes through a lot of analysis. The core of analysis is: these techniques are sufficiently problematic that we are not going to allow the military to use them without clear authorization from the legislature. (procedural approach)
    • Were the legislature to authorize the use of these techniques, they wd be lawful
    • sidenote: a footnote in the case that drew a lot of attention: Ct. says use of techn.s unlawful b/c not authorized. It might be that if there were to be a subsequent criminal prosec. of the people who tortured prisoners, they might have available the criminal law defense of necessity.
    • [note: ct isn’t giving blank check – there is a hint of substantive approach for the future: it says if leg. passes bill authorizing this, the bill will itself be subject to scrutiny – T: there’s some limit to what can be specifically authorized]
  • Note the contrast in cases like these between a substantive approach (saying that torture or military trials simply aren’t allowed) and a procedural approach (saying they’re only okay if procedure of legislative approval is followed).
    • One sort of objection to latter: the only reason you’re demanding these procedures is because of a substantive objection – but if you have a substantive ground, why not just come out and say it.
  • T: note that some more recent cases raise cautions about substantive approach
    • e.g. McCain amendment banning prohibition of torture by any employ of US govt
      • T: but there is controversy (maybe manufactured?) about what constitutes torture
      • and substantive approaches will have to define what torture is
        • and Schmitt approach would suggest that we’ll never fully capture the behaviors, there will always be things we didn’t think of
  • T:
    • SO: the concern about procedural approach: they create the impossibility of licensing normatively bad activities
    • BUT: the concern about substantive approach: they’ll lead people to think they’ve dealt w/ the problem, but the substantive problems will persist
  • Another idea in favor of procedural approach: good to turn these difficult Qs back to elected officials – back to democratic process – basically saying: let the people vote on it…
  • me:
    • proced. approach is good for pol. process theory reasons (what competence/justification do judges have for making these difficult moral decisions?);
    • but substant. approach is good if you think of ct as least dangerous branch – if you think (contra Vermeule) ct. has something add in terms of deliberation, countering public fevers in emergencies
  • next topic: substantive approach says: here’s something you can’t do (throwing people in jail w/o trial, whatever);
    • some: but we don’t have to assume, and we shdn’t assume that these impermissible actions will never occur – and when they occur, our prior decision that they are impermissible dsn’t automatically tell us what we’re supposed to do.
    • and this is the topic that Gross, Tushnet, David Cole talk about (in next part of material)
    • Gross says: okay, you’re in an emerg. situation (e.g. stress positions) – how do we analyze whether the use of those positions is lawful/constitutionally permissible?
      • Gross describes two approaches that he thinks are inadequate, then proposes his own extra-legal measures approach. So:
        • 1. business-as-usual approach
          • it’s very hard to specify what a coherent notion of this wd be
          • but let’s say: imagine in 1995, in US, there’s a case in which a police interrogator in a murder investigation uses the stress position while interrogating a suspect – and afterward a ct finds that the use of the stress position was unlawful/unconstitutional, a violation of 8th amendment.
          • then comes 9/11, and another use of that interrogation technique.
          • The business-as-usual model assumes that if it was unlawful in 1995, it’s unlawful in 2005.
          • You apply the same rules during emergency that you would apply outside the emergency.
          • T: a number of problems with this, some of them identified in excerpt from Gross:
            • primary difficulty: in the modern world (post-legal-realist, whatever), we know that you can’t interpret cruel & unusual punishment independent of the factual circumstances in which the activity occurs.
              • the use of the stress technique in investigating a murder is diff. than use of it to prevent additional acts of terrorism after 2001.
              • and bus-as-usual means reasoning about the problem in light of the factual circ.s presented – and it cd be, therefore, that bus-as-usu = what was cru and unu in 1995 context is not in 2001 context
              • Cole wd say, T thinks: no, that’s distorting the law in light of the emergency
              • leading to Gross’ second objeciton:
            • bus-as-usu is psychologically implausible:
              • in situations of emergency, decision-makers incl. judges will feel pressure to say the stress position is lawful
              • Gross adds: if they feel pressure to do it, now you’ve got a precedent for saying stress interrogation techn.s are not unconstitutional… which is not a good thing. Will end up being abused in e.g. 2009 in missing child case.
                • Posner/Vermeule say: why shd this happen? this will be distinguishable. Lawyers will be able to do this in 2009. No need to have paranoid worries about slippery slopes…
        • 2. separationist approaches:
          • you can try to draw a line, to separate things into distinct categories, e.g.:
          • temporal line: emergency situation is one defined as having a short time-span
            • BUT: worldwide experience suggests that the temporal separation isn’t going to be satisfactory for all circumstances
            • serious problems can persist for an extremely long time – think of Northern Ireland, or Israel, or Sri Lanka – civil disorders extending over extremely long time-period
              • T: and it’s not implausible to say that the US in 2009 faces the same kinds of threats that it faced in 2002 (Cheney’s point) – and if there was one then, there is one now.
              • like Rumsfeld’s pt about known unknowns, unknown unknowns, etc. – it’s at least a plausible position today that we don’t know whether there are Al Qaeda sleeper cells in US.
          • sidenote re: attempted manipulation of popular fear: recent US experience suggests it can work for a while, but time will run out. (Bush admin. is no longer in power, and new admin. opposes its policies.)
          • sidenote: Tushnet’s wife works for ACLU, thinks he’s crazy on emergency powers
          • sidenote: T: given the conditions of cert. kinds of emergencies, it’s bad public policy in some situations to disclose to the public the info. that the govt. has and is working on. Bush admin’s position not implausible: if there were widespread disclosure of some of the surveillance techniques it was using, its efforts wd be specifically impaired. (The story was: story released on day 1; and on day 2, Al Qaeda stopped using cell phones.)
          • or geographic line: about battlefield, e.g. Consider recently decided Bagram case, a few weeks ago judge extending habeas to some detainees at Bagram.
          • SO: the bus-as-usu approach may not give you much … (missed); the separationist/categorical approaches give you some material to think about – but they may not offer a solution in some cases either
        • 3. Gross’ extra-legal measures approach:
          • we say that the use of the stress/interrogation techniques are unlawful at any time – that’s the announced position. We know that there will be noncompliance with that. Interrogators will say to themselves: I’m facing situation when the greater good is served by stress/interrogation technique.
            • (and Prof. Dershowitz says: given that we know that, we should have some regularized process for judicial approval of the technique – gets called “torture warrants”
              • but: T: interrogators will always find situations where interrogator dsn’t trust judges, or there’s not enough time
              • plus other criticisms of this approach)
          • Gross’ model says: the realistic Q is: what do you do once you find out the interrogator used the technique. Answer: it’s not automatic that you impose a sanction on the interrogator who knowingly behaved unlawfully (the most extreme situation – there will be range beneath this: unknowingly unlawful, etc.). Instead, you determine after the fact what you think of it, what the right response was. You might think: this was the right thing to do. Pres. cd issue public statement: I approve. The “medal for Jack Bauer” approach. You cd say: this was wrong, but in an exercise of prosecutorial discretion, we’re not going to prosecute people for it. Gross talks about clemency proceedings, pardons, etc. to correct for any gaps in prosecutorial discretion. OR: you could have subsequent condemnation: imposition of punishment, etc. (T. emphasizes this b/c when reading about Gross approach, it’s often presented as though it excludes subsequent punishment. It dsn’t.)
          • Difficulties w/ this approach:
            • people say: it has the air of hypocrisy (in some ways goes back to Tribe’s response to Glendon on abortion – G praising German approach for recognizing human life, but not doing anything about it; Tribe thinks this is hypocritical and Americans wdn’t accept it – I found Tribe’s argument an empirical Q, doubt he’s write about how it wd turn out)
              • Gross does say: in many circumstances where the interrogator feels the pressure to break the law, to behave extra-legally, subsequently people will agree with the interrogator – therefore what will happen afterward is some form of ratification/relief from punishment. T. thinks it makes sense to assume this is true.
                • then you get an odd incentive structure: you tell the interrogator it’s unlawful, but that there’s 95% chance that there will be no punishment. So why will interrogator not do it. You’d have to be very risk-averse to be dissuaded by this. So why say it’s unlawful?
        • T has little tweak on #3: he calls his the “extra-legal measures” model, T. says: we shd think about calling these “extra-constitutional”: they’re just not assessable, can’t be evaluated on ordinary scale of constitutionality. Goes back to: the connection btw saying smthg is lawful and the sense that that confers of moral legitimacy. T’s position (not that diff. from Gross’) is that by saying it’s extra-constitutional, we say: whatever happens in cnnxn w/ this activity, we’re not applying the Constittuion to that behavior – it’s just outside, it’s extra-constitutional. So whatever we do about it shd not be taken as having any implications for what the Const. means. One way to put it: the itnerrogator’s behavior is like a tornado or an earthquake: an event that has moral consequences, but we don’t evaluate the event in terms of our usual normative standards.
      • Cole responds to both versions of #3 (what he calls the Gross/Tushnet position – T thinks an appropriate label, the two are sufficiently close): Look, you can’t expect ct.s to do right, but maybe they’ll do something. The bus-as-usu model is a thing we already use not b/c ct.s will solve all these problems in a desireable way, but b/c they might, on occasion, improve the situation. (V/P say: yeah, but they might, on occaison, make things worse.)
      • V (conservative): cts might make things worse (like Scalia in Boumediene: the result of ct’s decision will be the death of some Americans – and at some level, he has to be right – you make it harder for the govt to do things that terrorists don’t want done to them… me: no: counter-insurgency, etc.) v. Cole (liberal): ct.s might do something good.
      • V: judicial intervention makes things worse.
    • T. stopped writing about this stuff. When he was actively engaged in writing about it, he was quite taken w/ “the political Const. of emergency powers” – the ways in which leg/exec cd interact to produce a law of emergency powers that was something we cd live with.
      • if things worked out, that wd be the best way to do it
      • the problem w/ that: party politics will intervene – some of us will blame others of us. Not ct.s, because they’ll be out of it.
      • and a politics of blaming for disasters is not an attractive one.
    • political comment: the thing that angers him most about Bush admin is that they didn’t bring people together after 9/11 – if had, wd’ve had Repub. Pres.s for rest of his lifetime. Instead, Bush admin turned it into partisan poltical issue, thought: we can win w/ 51%. what makes him the most angry.
    • why he stopped working on this (this “political Constituiton” idea – arrays of party politics, coalition govts and the like): w/ respect to sep-of-powers approach in US, the issues raised were intellectually interesting if you had political actors who were competent in pushing their political agenda – it turned out that the Bush admin just wasn’t competent politically, so the issues weren’t intellectually interesting. If they’d been better at it, worth more time studiyng this.

***

13 Apr. 2009

  • This week:
    • Finishing emergency powers and Con Law discussion: POLITICAL QUESTION material
    • Then starting religious pluralism issues
    • etc.
  • Emergency Powers:
    • A. substantive mode of regulation
        • specifies when emergencies can be declared
        • and what rules can be suspended during emergencies
      • the primary concern w/ A. is the Schmittian concern that it can’t work, for the reasons we talked about
    • v. B. a procedural mode of regulation
      • best captured in Sep-of-Powers systems where the procedural mode says: whatever is done during an emergency must receive the agreement of both the executive gov’t (Pres) and the legislative body.
        • the thought being: b/c of the different constituencies of Pres and leg., you’ll get responses that don’t threaten constitutionalism in the long run
      • but we can see how this cd be adapted to Parliamentary systems: the ministry of exec gov’t – bargaining w/ elements of coalition
      • … and you can adapt that version even where you have single-party government
      • Though the proceduralist mode of regulation gets weaker and weaker as you move along this spectrum
  • Note: there is nothing either in A of B that requires implementation by courts. The mechanisms of constraint in both the substantive and procedural versions (missed). C.Against.Torture: T: administrative-review-type of mechanism, but not Const’l review. (missed)
    • You cd of course implement A through judicial review – but dsn’t necessarily have to be the way.
    • You could – transition to next subject – use political question doctrine.
  • POLITICAL QUESTION DOCTRINE:
      • in US, there is one, at least nominally
      • in Germany, at least Frank argues there isn’t
    • Overarching question:
      • 1. descriptively, does it make a diff. in terms of outcome to have a pol. Q doctrine or not?
      • 2. normatively, is it better to have a pol Q doctrine of non-justiciably than to have the Germ. approach as Frank presents it?
    • The doctrinal point, in the US, rises in Goldwater & Carter, in which Rehnquist says –
      • the issue: US had entered into mutual defense treaty w/ the gov’t of China located on Taiwan
      • that was a treaty: i.e., the Senate participated in the creation of the int’l legal obligations that the treaty embodied
      • after a while, the US decides that it wd like to estab diplomatic relations w/ People’s Repub of China
      • as a condition of this, PRC insisted on abrogation of mutual defense treaty (b/c mainland China regarded, still regards, Taiwan as a province of China) (note: recent wave of immigration to China was 1949-50)
      • the US gov’t, through the President, declares that the mutual defense treaty w/ the gov’t of Taiwan is no longer in effect – abrogates the treaty, in effect. T: A nation is entitled to abrogate its treaty obligations; there is no provision in the mut. def. treaty governing the abrogation, except maybe some notice period, but that’s all; so the Q becomes –
      • the Q in G & Carter: Whether as a matter of US Con Law, the Senate (which was a required participant in the creation of the obligation) is a req’d participant in the abrogation of the obligation
      • Rehnquist says (for 4 justices) that that Con’l Q is a Pol Q, meaning that the ct’s will not / cannot express a view on what the Const. requires in cnnxn w/ treaty abrogation.
        • KEY: There may be Const’l requirements – but the Pol Q doctrine says: whatever the Const. says about this problem, the courts are not going to tell you what the Const. says
      • Why does he say this?
        • R: There’s nothing in the Const. that tells you…. (missed)
      • Powell says: This is just a Q of Const’l interp. Must the Senate participate in withdrawing from obligations? That’s an ordinary Q of Const’l interp. It’s “interstitial” (in Powell’s terms) rather than textual analysis – but it’s no different from ordinary Const’l interp.
        • And he poses hypo about Pres signing defense treaty and declaring that US has new int’l obligation. And then someone challenges this b/c Senate didn’t participate.
        • Powell says: no one wd think that’s not a justiciable question.
        • And the question in G v. C. is just flipside of that
      • T: P has a pretty good arg. here, based on standard view of roles of ct.s in Const’l interp. In some sense, every Const’l case that gets to Supr Ct is one that’s resolved by institial v. textual analysis.
      • T wants to stress what it means to say something is a pol. Q to be resolved by (R’s terms) “political standards”
        • the thing to keep in mind: to ask yourself: suppose Congress enacts leg., the effect of which will be to increase the maximum tax rate to 39% from 36.5%, and suppose that is challenged as a violation of the equal protection component of the due process clause… What wd the ct.s do about it? They’d entertain chall. on the merits and say, on the merits, all you need is a rational basis – they wouldn’t say: it’s to be resolved by political standards. What does it mean to say the latter?
        • T:  I think the way to underst the pol Q doctrine is to say: yes, there is a serious Const’l Q here – we believe that in our system, the way that Const’l Q gets resolved is by consideration of the Q by the political branches. So, in G v. C., the Pres says: I believe I can abrogate unlitareally, the Senate eventually says: no, we think we have to participate in the abrogation, and if the Pres ds anything about this abrogation, we’re going to use the pol. weapons we have available to us to bring you to heal – we’ll deny you funding for some program, etc. This political negotiation is how the Const’l Q is resolved.
        • Why is that diff. than 39% tax rate? The answer is: there’s a Const’l standard in the premises; and we think the political branches will pay attention to the issues – here, b/c each of the instiutitons involved has an interest in paying attention to the issue. They’ll fight it out. They’ll fight it out politically, but the terms of the battle will be honestly held conflicting Const’l interp.s. So that’s what it means to say it’ll be resolved by pol. standards.
        • It’s not that the standards will be political – it’s not that the Senate will say: we think it’s a good thing that we participate.
        • It’s not going to be an ordinary policy disagreement.
      • note: Marbury creates something like the category of political questions, distinguished from questions involving indiv. rt.s
        • T. quoted it, something about “we won’t decide it unless there’s an individual right involved” – anything not involving Con rt.s is a pol. Q, ct’s won’t touch it)
        • T: tho some say: with respect to some indiv. rt.s, even there the ct. won’t intervene –
          • e.g. clearest case: US mil forces seize land in Guat owned by US owner – he goes to US ct, says it’s a taking of his property for which he’s entitled compensation. The lower ct.s said: this presents a political Q, b/c the issue is utlimately about the propriety of the US mil operation in Guatemala.
            • so you can find cases that are clearly indiv rt.s cases and the ct.s still say these are political Qs
      • BUT: it’s possible to rephrase almost any political Q case as one involving indiv. rt.s (some harm to some indiv. as a result of gov’t action)
      • Note: usually, ct. gives extraordinary defense to executive in nat’l sec. matters – but you can find a few cases even there where ct. says “even w/ all the deference, this is a violation…”
    • Discussion:
      • Mandell: the possibility of judicial resolution of the conflict diverts energy from the streets and into the courts – and that’s a bad thing. Holding out the prospect of judicial resolution when you know the resolution in 99% of the time will be in favor of the Pres or the national gov’t is to pretend to offer a solution in the courts – but actually to say, the President wins.
        • People will mistakenly thing there’s a law-based resolution to this problem.
      • T also quotes Justice Jackson’s version of this from Korematsu dissent.
        • The people have to hold the politicians’ feet to the fire on this
      • Basically, there are two ways to confrton these problems: really have true, tough judicial review; or have the public hold the politicians’ feet to the fire.
      • The intermediate position – Germany as represented by Frank – -is the worst of the possibilities: a review that’s wholly delusive, relieves politicians of their responsibility.
      • The case for a political Q doctrine is that it will force politicians to be responsible.
  • RELIGIOUS PLURALISM
    • a mini-discourse about comparative constitutional law methodology: At the beginning of the course, we spent some time talking about what you cd get out of comparison and what its limitations might be. W/ respect to limitations, the primary thing that we emphasized was the connection between Con Law and call it “distinctive national histories and culture.” So in Germ abortion decision, we saw there was an express reference to the Nazi experience of life unworthy of life as a justification for the Con’l position that the Germ con ct. took. To the extent that constituitonal law is distinctively national, there’s a real Q about what you can do – what value there is – in comparative constitutional inquiry. T has been doing some reading in gen field of compar law, and it has now sunk in that gen comparative law has historically been extremely suspicious of the poss of doing compar Constitutional law, b/c general comparativists think that Con Law is more distinctly tied to national hist.s/cult. than private law is. Whether true or not is diff. Q, but that’s clearly their view about compar public law in gen and compar Con Law in particular.
      • note: in US legal academia, compar law is marginal field, and Compar Con Law is marginal w/in it (b/c of this notion of national distinctiveness)
    • we’ve avoided dealing w/ that question for almost all of the course b/c T’s perspective is what in the field is called a “functional” perspective – there are things that gov.t’s do, prob.s they solve, and these are pretty much the same all over the world – you can see how somebody deals w/ problem elsewhere, and that’ll help you to deal w/ the Q domestically. E.g. the Q of judicial independence and tenure: everyone has to deal with this. Long-term renewable v. long-term non-renewable v. life tenure, etc.
    • When you reach indiv. rt. issues, the claims about national culture emerge w/ a great deal of force.
      • e.g. in Israel and India, relig. pluralism plays a large part in the central issues of nat’l self-definition
        • so relig. pluralism is just a part of the national ID debate
      • given the centrality of relig pluralism in these issues in Isr and Ind – and the fact that relig pluralism is no longer central in US – how much does latter have to learn from former?
        • one of the central passages in US law of religion – Powell – “we’re no longer at risk of inter-religious violence characteristic of 17th C.”
    • Also: issues of indiv. rt.s generally: what do you get out of studying comparative Con Law w/ respect to free speech, relig pluralism, anything else along these lines?
      • note on free speech: there’s a lot of compar con’l writing about regulation of hate speech – US people are very suspicious of Const’l regulation of hate speech – people elsewhere in the world are not nearly as suspicious – and in some places, they are quite enthusiastic about it: for good reason.
      • Q: What can one side learn from the other’s position?
    • Classically, the issues about relig pluralism are divided into establishment issues and relig. liberty issues:
      • while writing his notes, T found it essentially imposs to come up w/ gen descrip of establishment issues
      • “relig liberty” issues is about gov’t limitations on what individuals can do re: their relig beliefs
      • “establishment” is much harder: something like; the amount of support a gov’t gives to one or more religion
        • classically: gov’t support for a single religion – e.g., in England, the Church of England is the established church and receives gov’t subventions, no other church does
          • “single establishment”
        • but it’s also the case that there are “plural establishments”: gov’ts giving to a bunch of churches, but not all
        • and then in US we have concern about govt’ support for religion in general – as in non-denominational prayer
        • so exactly what an establishment issue is, is hard to pin down
    • There’s obviously some connection between the two –
    • Some say: the whole pt of the non-establishment principle is to protect relig. liberty – and you give content to the estab. principle by looking to relig. liberty implications of a decision
      • clearest illustration: “church property” cases – there is a physical church, a building, and title says it’s owned by “The Catholic Church.” The parishioners who meet in the bldg decide that Pope and everyone down has abandoned the true teaching of the Catholic Church. And they believe they own the parish bldg b/c they, in their view, are the Cath church – and all the others are heritics.
      • Ownership of property matters!
      • US Const. Law says: b/c of the non-establishment principle, if you have a heirarchical church like the Rom Cath church, then whatever the hierarchy says is the owner, is the owner. The US courts will not question the decisions of the highest body in a hierarchical church, for non-establishment reasons. It wd violate the estab clause to interfere w/ the decisions of a hierarchically org’d church.
        • T: tho, this interferes w/ relig lib in another kind of way – the lib of the parishioners
  • The reading from Durham: more useful for the diagrams than for the particular details. He offers to two visions of the relationship btw non-estab. principles and relig. liberty principles. One is that they’re correlated, so if you’re high on non-establishment dimension, you’ll also be high on the relig. liberty dimension. And if you’re low, if you have an estab’d church, then you’ll be low on relig. liberty. (And there’s an intution here: historically, nations w/ established churches have, as a general matter, not treated adherents to non-established religions well. So it’s not crazy to think like this.) BUT: Durham says: a better vision is to think in terms of the loop he has. Theocracy and persecution, etc.
    • note the pt T makes on 1387: two possible interp.s, etc. (Given any amount of relig. liberty, you cd either be close to the theocracy, or close to persecution.)
    • and note: implication of this model is that if you’re wholly non-establishment, that’s not going to be maximum of relig. liberty, b/c e.g. the wholly secular nation will be insensitive to religious conduct.
      • and headscarf stuff is pretty straightforward illustration of that
  • note: Durham is a Mormon. And they experience in US a great deal of persecution for their relig beliefs w/in historical memory. 120 years ago, forced to abandon polygamy – or they were going to be crushed. (Congr had passed a statute saying: if you’re a denom in a US territory and you own property and you’re committed to polygamy, we’ll dissolve corporate status and take all your property.) T: this is a contentious point. What happened, from Mormon POV, is that the leader had a revelation.
    • sidenote: all these anti-Mormon statutes were challenged and upheld in 1890s
      • but there are these breakaway sects who have property –
      • laws not enforced
    • under current law, it’s an open question
      • Utah Supr Ct upheld a law recently, w/ concurrence: “I can’t agree w/ ct’s characterization of polygamy as immoral, b/c I don’t think grandpa was immoral.”
  • sidenote: Greek ct.s developed a couple of accounts of why proselytization was punishable – b/c it was focused at vulnerable populations; b/c it conflicted w/ Greek orthodox church. Euro Ct said: you can proselytizing re: vulnerable person an offense – but the offense here was pros. in gen., and you can’t ban that.
    • another version of this is the enormous hostility to Scientology in Europe.
      • b/c Euros. have this idea that there are relig bel.s that are fairly characterized as “cults,” which means their underst.ing that people adhere to these beliefs in some sense “involuntarily.” Theologically, a very tricky question. In some sense evangelical Christians think that people adhere to their beliefs involuntarily! (They’re called to Christ.)
    • and this raises another tricky point: is Scientology really a religion? Around the world, you have to register and satisfy some state-defined criteria. And it may be that the Sci.ists don’t satisfy the Germ. criteria. (Tho plausible that they do.) The Russ. law on registration req. for those not registered before 1917.
    • again, in US, that’s completely weird
      • as in Summum case (involved religion created in 1975)
      • the US almost goes to the pt of saying: if you characterize yr belief as religion, sincerely, it will be very hard for us to deny e.g. tax-exempt status

***

14 Apr. 2009

  • Comparison of GERMAN and U.S. School Prayer cases
    • then: Japanese Shinto Shrine cases
    • issues: religion and national cultural self-preservation
    • as come out in the headscarf controversies everywhere
  • GERMAN PRAYER & CRUCIFIXION CASES
    • The setting of this is that Germany allows/has public support for denominational schools
    • Some are interdenominational, some are single denominations
    • In some places, the only schools happen to be denominational schools (not that this was government’s choice, just turned out this way)
    • In these denom.l schools, two practices at issue:
      • school prayer (in the classroom, at the outset of the day)
        • cases in which there’s general agreement that nobody who doesn’t want to engage in the prayer has to do so. So: voluntary activities.
        • that’s true of the practices in the U.S. as well
        • in Germ, the ct says: this prayer practice dsn’t violate the basic law. There is, it acknowledges, some degree of indirect coercion, but we’re not going to assume that abstaining from school prayer will, in a substantial # of cases, force a dissenting pupil into an unbearable position as an outsider.
          • so: the standard is smthg like: being forced into an unbearable position as an outsider.
          • T: the term “unbearable” sort of resonates with the term “non-exactable” in abortion cases – where abortion is permitted, not made subject to criminal penalty – where requiring the woman to carry fetus to term would… basically be unbearable
        • in US, the practice of school prayer is unConst’l on non-establishment grounds. There’s no inquiry into the coerciveness of the practice. The ct assumes that it truly is voluntary. Justice Stewart says b/c it’s voluntary, it shd be okay.
        • First question: why are US and German approaches different?
          • perhaps b/c of history: the persecution of Catholics under Bismarck, religions under Hitler – so perhaps German must offer more accomodation than U.S. wd think necessary
            • v. Powell’s opinion “we are far from the relig wars of the 17th C in the US”
            • Germ may be less far from persecution – of Christians
          • maybe b/c line btw church and state just isn’t as clear: collecting taxes that end up funding denominational schools, etc.
          • perhaps b/c of much greater relig. commitment in US and hist. willingness to act politically on the basis of those commitments
            • tho: Christian Dem. Party… but it’s not really very religious, more conservative than motivated by relig. commitment
            • SO: the threat of a slippery slope toward relig. tyranny or whatever is greater in US, so we need bright lines (v. proportionality analysis)
              • GENERAL POINT: proportionality analysis doesn’t fit with prophylactic rule approach – and in a variety of contexts in US, people are attracted to prophylactic rules
          • perhaps a greater degree of relig. diversity -> argument against use of proportionality test
            • T: this would be a sociological point
            • versus, e.g., an argument based on the “no religious oath” provision in Const. wd be a point about national self-understanding – it dsn’t center around relig. in any way at all
          • T: perhaps (Beatty 1395 – proponent of proportionality as the ultimate rule of law) – he says the Germ approach is defensible as a good application of the idea of proportionality. And then you say, with respect to US on school prayer, he’d criticize it for not engaging in a proportionality analysis.
            • T then went through proportionality analysis (missed much of it)
            • the governmental interest might be: an opportunity for children to share in the religious culture of the nation…
            • v. intrusion on negative liberty of the children not to be coerced
            • is the remaining intrusion on this negative liberty proportional to the advancement of the gov’t goal?
          • me: perhaps (may be wrong – haven’t read chapter yet) it’s b/c there are less private schools in Germ.? in US, relig people can always go to private school. In Germ, can they?
      • the display of crucifixes in the classroom
  • Something about the classroom crucifix case: also interesting: e.g., T will make following claim: there are lots of people in this country who think it wd perfectly fine and not unConst’l for a schoolboard to require a relatively non-denominational prayer before elementary and secondary-school classes – lots of people think this wd be okay. A smaller but still substantial # think it wd be okay for a schoolbaord to prescribe a prayer which no one wd be req’d to say that ended “in Jesus’ name we pray” – that is, denominational. T wd be extremely surprised to find any significant # of people that think it wd be okay for schoolboard to say: crucifixes have to be displayed in every classroom. The more specific the religiosity becomes, the more we’re troubled? Even if it’s in some sense voluntary. But note: there’s also something kind of inherently involuntary about a crucifix in classroom – you’ll see it sometimes, etc.
    • Germ. ct. says the crucifix is not okay, b/c (1399):
      • the cross dsn’t force children to ID with or venerate the cross, but it does exert influence in other ways; and the effect is a proselytizing effect; makes that faith exemplary, worthy of being followed by young and impresisonable people;
      • and there’s no minimization of this effect –
    • so:
      • 1. it amounts to proselytizing,
      • 2. and there’s no way to minimize these effects.
    • Also note: crucifixes in Germ clasrooms were a real phenom in a way they weren’t in US.
    • Note: there was a line of cases in US where relig affiliated schools cd receive some public money – but if you were teaching this class using this money, you had to take down the crucifixes while teaching it… (Most people just took them down permanentyl.) This line of cases eventually overruled.
    • p. xxxx: a Cooper-v-Aaron-type of defense of the decision – a defense that resonates w/ the joint opinion in Casey: w/o regard to what you think about merits of ROE or our decision in CASEY (latter says), you ought to respect our decision on instituitonal grounds – based on the role of the ct in our system.
    • A few points:
      • On the existence of coercion b/c these crucifixes are in every other classroom: what would majority have said if there was only a crucifix in the school auditorium, but there were mandatory events there?
  • The Japanese cases:
    • At some level, extremely difficult for T to understand, b/c on the face they seem so small – the cases are about the use of trivial amounts of public funds on the occasion of a visit to a Shinto shrine by a public official. What’s the big deal? Well, turns out it’s a big deal b/c there’s a very deep connection btw “state Shinto” and Japanese politics – the position of the Emporer – and the legacy of WWII.
      • cf. controversy of Japanese PM visiting shrine where war criminals, among others, had been honored. The PM did go to the shrine, and in the first few iterations, he signed only his common name – not identifying himself as anybody. Then, after another couple years of annual visits, the PM signs as PM in guest bk – again, controversy flares up.
    • So: when Jap ct considers these cases, it’s against this BG. And the majority says: This degree of support of the shrine is chiefly secular.
    • Here: one of the puzzles about doing Compar Con Law. (National distinctiveness, cultural distinctiveness…) Here’s a situation where there might be a radical disjunction in the language that you use to talk about these phenomena. T sees the shrine Shinto case using a category that he calls ‘religion.’ And he knows what this is in US. (Even very expansively – Summum, etc.) BUT it’s not clear to him that “Shinto” should really even be called “religion.” That the mental universe associated w/ state Shinto is anything like what he considers relig. in US. And if that’s true, then you can’t do much about comparison? And might this also be the case re: free speech?…
      • perhaps better analogy: Sons of the Confederacy honoring heroes of the Confederacy and KKK
      • and we cd think about that in Const.’l terms
        • what wd we do if KKK presented itself as religion? in which case its adopt-a-highway plan might raise Qs of relig. liberty as well as free speech?
        • BUT we don’t have that phenomenon in US.
  • me: POSSIBLE EXAM TOPIC: the field assumes that there are categories that transfer across nations – but maybe these categories are all culturally specific
    • T. finds there to be something to the idea of radical splits btw cultures, when you look at Shinto shrine
    • I raised pt: skepticism can be taken a step further: if there might be things in other cultures that we can’t understand, are we so sure that we can understand everything w/in the diversity of Amer.? There are categories, and it’s just unclear how they apply to factual situations sometimes.
    • T: this is Fish’s approach. You have your point of view, and that will shape how you view everything. And he says: don’t worry about it!
    • Or: me: Donald Davidson: if you just look at Shinto, you may think US and Japan have radically incommensurable cultures/conceptual schemes, something like that. But in fact, all parties share enormous background belief – and it’s only on the basis of this that we can recognize one another as rational language-users, etc. So there’s not really as much of a split or incommensurability as we think. (Talk about everything long enough and we cd theoretically figure out as much as they’ve figured out and vice versa.) We’ll get by.
  • GREEK PROSELYTIZING CASE
  • Proselytizing targets vulnerability here. Why shd gov’t care about protecting someone vulnerable to proselytizing?
    • 1. she might be exploited, end up giving all her money to them.
    • 2. Cultural preservation: It’s a bad thing for the nation. We are Greek orthodox nation. And if we lose this, we cease to be Greeks.
      • T. likes the Russian orthodox bishop’s argument about this: The Russian orthodox church is like a very sick person that’s only begun to recover itself.
  • This also arises in HEAD-SCARF CONTROVERSY (mostly in Europe, but in secular Turkey as well)
    • again, there are two kinds of claims that gov’ts make when they regulate the wearing of head-scarves.
      • 1. women are coerced into wearing head-scarves. So: gov’t is banning it in relevant areas as a way of promoting women’s freedom. (They say they want to do it, but they’re operating in a social context where we can’t trust their own assertions of voluntariness.)
        • T: You’re looking at the background conditions under which they’re making their choices.
      • 2. A cultural rationale: France is a secular nation. What it means to be France is having a public identity as secular. And having headscarves in public institutions would get in the way of that.
    • T: something sympathetic about this – but these approaches all have a very ahistorical notion of culture
      • me: and also, acts as though culture is even in this moment a unified thing – essentially saying: religious North-Africans are not French?

***

20 Apr. 2009

DENNIS DAVIS

Guest speaker: S. African judge (not on Supr Ct, but like Posner in the sense of having int’l stature in spite of this)

  • (T: this guy was trial judge in Hroothfoom (GROOTBOOM), that case earlier – was first to offer remedy – later changed/rejected by Const. Ct.)
  • South Africans like to think of themselves as most progressive re: soc/econ rts – but he wants to argue that Lat Amer is actually more
    • Distinguishes (from T’s book):
      • Right
        • weak v. strong
      • Remedy
        • weak v. strong
    • In S. A. context, instead of saying “This is what a right to (e.g. health care)” means, ct. says: we’ll do administrative law test: “the state must act reasonably.” (Where did they get that from? I’m sorry to disillusion you, but judges do make things up.)
    • Specifically, What they make up: every soc and econ program must accommodate the poorest of the poor. If the program dsn’t recognize their compelling/imperative need, then you cd argue that the program is not reasonable, and accordingly, the govt’ has breached Const’l duties.)
  • pieces by Nicolas Haysom; Mureinik: exchange before COnst. was written re: whether to include soc/econ rts – referred to India/Ireland directive principles (not judicially-enforceable) route, etc.
    • he sd no: b/c you don’t want judges running the country – “juristocracy”
    • when case came up, barrister tossed article up in air, etc.; said: Const. didn’t go the route suggested in article; suggesting: don’t try to claw back this position!
  • Govt gave him 7k pages, and said: we do have a housing program, and we’re doing this to the best of our ability
  • DD’s remedy was: Each of the families have small children – the children have unequivocal rt to housing – that means by extension the others in the family must as well
    • then: how to enforce this rt?
    • these are people who’ve come to court, haven’t had benefit of very strong non-governmental organization
    • DD’s ct said: we don’t know what kind of house you shd have – let govt and litigants have dialogical process, then come back
  • SO: DD’s ct had STRONG RIGHTS and arrived at a STRONG REMEDY
  • The Const. Ct. decided on having a WEAK RIGHT (didn’t rely on s.28 – “if we did that, everyone wd have rt to house, etc. all sort of distribribution conseq.s wd result!”): the reasonable test
    • where did they get the latter from?
      • 1. the existing legal culture of the society in which SA judges operate
        • the test of “reasonableness,” used in admin law all the time
      • 2. not wanting to overreach as judges, to overreach the principle of separation of powers
  • The problem is that when it came to the REMEDY, they chose a WEAK REMEDY as well:
    • the supervisory the interdict above was not followed
    • often readers of the case overlook: the case was settled before it got to Const. court
      • and there was no supervisory component to it (tho, ironically, was similar to what DD’s trial ct presented)
    • SO: when case came before Const. Ct., was in a much more sanitized way – not about real, live, suffering applicants – so there was never really any serious argument about a supervisory interdict needing to be introduced
  • 2nd case: there was a truly needy ligitigant – but the ct still denied relief – decided based on an EVEN WEAKER RIGHT.
    • Note: it was foreordained that the ct. wd decide against govt., which was already beating hasty retreat – and 10% of mothers are already getting ARVs in test sites – dsn’t take brain surgeon to figure out: how can govt. let 10% of its constituency to take these drugs if they’re toxic!
    • The gov’t’s program was irrational.
    • So: no one was really sure what wd happen after that case in terms of that approach
  • There have been a few cases that have indicated that the intention of SA court was that the weak nature of the review would be reasonableness.
  • Most recent case: just muddies the waters even more: deals w/ Q of water: a case of Supr Ct of Appeals (not Const Ct): came down about a month ago: until 2004, a Johannesburg community had free access to water. SA is a very dry area, outside of CapeTown area. City found it had to regulate water to broader J.burg community – so it installed pre-paid meters (you pay, you get water supply) – configured so that first 6 kL/stand/month was free (25 L/person/day). This community asked to have this policy reviewed and set aside. High Ct. level agreed w/ community, sd limit was unconst., ordered that they be given 50 free L of water per person per day.
    • Are we inching toward a core minimum right, a STRONG remedy?
    • Goes to Supr Ct of Appeals: recall that reasonableness will be the test. Ct says:
      • 1. city is trying to take reasonable measures to provide water to each person, s. 27(2): sets the bare minimum in general terms
        • but that dsn’t mean that applicants can’t come along and say, under s.27(1), it’s not enough – s. 27(2) only defines the minimum generally. Different stands might have different needs.
        • a very sneaky way around the reasonableness test
        • NOTE: May have mixed up 27(1) & (2)
      • 2. (missed) – human right to water…
        • uses this to say: so now we’re entitled to look at the evidence: did the community in fact rec. sufficient water to lead dignified human existence?
        • goes thru evidence of both sides:
        • DD: it was clear in this case that at a min. 44 L/person/day is required
    • SO: did ct then give order that every person must receive 44 L/person?
    • Waters become very muddied here
    • Ct says: we don’t know what the implication will be for other communities, those getting very little water.
    • SO: they find that they’re entitled to 44 L/person/day, say they’ll let committee determine how to implement the order.
      • But what happens now?
      • THe city had a further program – “if you don’t have enough water, you can register as indigent, the you get 4L/day free water” – applicants didn’t want to do that – said: we have that right – ct said: yes you do, but we don’t know how things will turn out once other communities are considered
  • SO: where are we left? unclear
  • The moral: It’s sometimes very difficult to keep to a very WEAK RIGHT.
    • the ct. seemed to think that everyone agreed human beings needed 44 L/person/day
    • the case seems to move away from 27(2) doing all the work
    • to giving 27(1) some real content.
  • Q: Isn’t a strong right and a weak remedy better?
  • In SA, the idea of a weak right was that the ct.s cd play a role but not an overweening one, in the democratic process of a new SA –
    • DD: and a positive judgment even on a weak right really does provide political power to those asking for it
  • The greater importance is in the STRONG REMEDY:
    • promotes a form of dialogical constituitonalism: Rosalind Dixon: ct.s can coerce or communicate.
    • ebb and flow of reconsideration btw institutions
  • DD: but dialogical const.ism goes much further than that: promotes dialogue between CITIZENRY and EXECUTIVE – ct.s don’t just defer to the legislature in the drafting of the remedy b/c they don’t know how to do it.
    • In the case of a strong remedy, what you’re saying is: to applicants: you have a right here; you can demand this from gov’t and come back
    • brings about a form of deliberative politics that lies at the heart of soc & econ. rights
  • Also: What happens to DD as a judge when gov’t says: we don’t have enough money for 44 L/water/day?
      • sidenote: T: dsn’t seem to T that 25 – 44 L is analytically different than dialysis – no dialysis (latter from Subermuni). (Unless it’s that water is all around, whereas dialysis machines aren’t?)
    • It’s still advisable for DD to offer a strong remedy
    • It means that the govt has to come before the ct and dialogue has to take place – a level of reasonableness in the crafting of social and econ. policies
      • As in the case of the Hungarian ct.s who were able to push back against World Bank using strong remedy by courts (“We have to obey this! Otherwise we’re violating the rule of law!”) – as we read
  • One other pt: to a large degree, ct.s can operate rather extraord.ly/to great effect in context of neoliberal framework
    • e.g. jurisprudence of Colombia
    • It apparently has the most displaced population on earth outside of Sudan
    • What to do w/ displaced persons? They’ve had a hard time getting any sense of rationality of govt’ policy
    • And Const. Ct. of Colombia used UN guiding principles dealing w/ displaced persons and interp.ing their own Const. to provide relief for displaced persons
    • It sought the kind of dialogue he’s been speaking about earlier.
    • And public policies were significantly reshaped as a result
    • NOTE: This is far further than the S. African courts. DD: It reinforces the pt that what is absolutely critical in this process is the remedy. In the S. Afr. case, WEAK RIGHT – STRONG REMEDY probably still holds as a general description – but the problem is remedy has not been all that strong. Versus in Colombia, w/ neoliberal econ. policies, the ct was able to use UN Humanit. Laws and its own Constitution to wrench a level of compliance from its govt that hasn’t been achieved in S. African context.
      • If S. Afr. ct goes back to reasonableness review, the Q becomes: does jurisprudence of soc/econ rts need to move beyond text of Const and consider a jurisprudence of positive rights.
      • Is. Berlin’s notion of negative/positive liberty has permeated so thoroughly, that we don’t see positive rights as maybe we should
      • The direction that a progressive jurisprudence might lead in
  • Me: in essence, he’s supporting the judicial enforcement of soc/econ rt.s based on dialogic rational (I think this has appeared in our readings somewhere and we’ve discussed already)
  • Note: there’s a debate in S. Afr. re: whether Const. is liberal or social-democratic. T. came out strongly in favor of saying latter, may have been first to do so.

have you been persuaded that it was a good idea to include judicially enforceable econ/soc rts in Const.?

re: IDPs in Colombia, or homeless people in S. Africa

do you think it wd be better to improve pol process and let it take care of things?

might there not even be disadvantages to having judges intervene to make things better? (a kind of moral hazard)

(DD’s earlier partial answer: depends on context in your society – may work in some places better than others)

DD: (me: what he described above is a kind of political process theory: the dialogue)

it’s not about judge ordering leg/exec to do something – the judge is (me) doing representation reinforcement by getting gov’t to negotiate with/have dialogue with these people who evidently are getting inadequate treatment in the political process

on personal note – he came from Marxist tradition, when ANC came into power, this is what he’d been fighting for all his life – then, when 5-6 years later, he was facing the housing case, he found himself wondering: how is this happening? (wd’ve hoped the poorest of the poor wd’ve been foremost in gov’ts mind)

and this is what has persuaded him that he was wrong in 1992

T: also a comparative Q here: the different party structures in SA v. US: David Lando: Colombia has an incoherent party structure – so the court took on this role

In SA, there is essentially a one-party system. And the internal factions aren’t organized around deep constitutional principles. (If this weren’t the case, then it might make snse for ct.s to stay out and let parties fight it out.)

Also, as DD said, certain kinds of judicial interventions being dialogical

And here, the strenght of civil society will play a role

T: you don’t want to take this strength as a fixed, unchanging variable – also: taking into accounts the costs of moblization, giving civ soc a venue in courts may help to build it – they’ll start in courts, then march in streets, and marches in streets will be more effective, to the point that after some period of time, ct.s will say: we no longer need to provide this special resource to civil society

DD: court can also provide parameters for negotiation (me: bargaining in the shadow of the law) – plus, when you’ve got a judgment in your favor, it adds to weight of political campaign. Once T. Action Camp. won, minister was under a great deal of pressure.

***

21 Apr. 2009

JUSTICE NKOBO (MKOBO?) (of Const. Ct. of S. Afr.)

  • member of ct for almost a decade now
  • in detention from 1976–77
  • Harv. LLM, clerked in Philadelphia, practiced in US w/ Philadelphia law firm, then pub int atty in SA
    • ejection of tenants from townships, etc.
    • (of course during apartheid)
  • THE ROLE OF THE CONST. CT. & its place w/in the context of SA democracy
    • key fact: on eve of Const, SA soc. was one of most divided in the world
      • disparities of education, housing, etc.
      • moving people from one area to another, to create a country w/in a country for black SA – system that led to untold sufferings
      • e.g. black people not allowed to remain in major cities – only tolerated to the extent that they were full-time employed or registered as work-seekers…
      • min. hr.s you cd spend in city w/o being arrested or having work-seeker permit: 2 hrs.
    • this is the BG to the adoption of the Const.
      • taking society from one defined by racism, disrespect for human rights
      • to one defined by human dig, fund freedom and equality for all
    • the Const. Ct. is the highest ct on constitutional matters: charged w/ task of helping to transform society thru interp. of the Const, esp. thru giving effect to Bill of Rt.
  • very noticeable featuer of Const.: it didn’t make a false assumption that all people in SA were equal before 1994 – b/c if you make that false assumption – you’re entrenching the existing inequalities
    • in order to recognize that there were people who were left behind by many years of discrim, Const. recognizes that special measures will be needed to give people a head start
    • so SA concept of equality is not just formal equality – it’s substantive equality
  • SA people have exceptional trust in the Const. Ct.
    • what happened was: you had a govt that didn’t represent all the people – that govt cdn’t be trusted w/ writing a Const – so: they had to put in place a govt that wd have the mandate of the people to draft a Const –
    • so: you had to have an interim period,
    • and against this BG, the first dem Const. came into effect in ~1994
    • and under this Const, first Dem. gov.t in SA was put in place
    • the legislature (then Parl.) was put in charge of drafting a new Const. that wd take effect at the end of this transition
    • note: in the course of negotiating this interim Const., 34 principles were agreed-upon, which wd form basis of new Const
    • so, in drafting the new Const, the leg was then going to be guided by these principles
    • and when they were sitting as a drafting body, they were called the Const.l Assembly
    • the Const. Ct. was tasked with certifying that the resulting draft conformed w/ the principles
      • he hopes the trust is still there – despite some recent signals from politicians
    • Const. Ct. said some parts of draft didn’t conform w/ principles – sent it back – Const. Assembly makes changes – then Ct. certified the Const. (happened in 1996?)
  • Issue: the continued applicability of Const. principles
    • suppose that now, the Const. is amended in a matter that conflicts w/ one of the Const. principles – can the court strike down that amendment on the basis of it being unconst.?
    • (what about a week after the certification?)
    • happily, these Qs haven’t come up
      • [sidenote: me: totally unrelated: Tribe’s arg. v. Glendon that US v. Germ. can’t tolerate hypocrisy is belied by our own strong form review Constitutional approach – where we pretend that the court is getting its rulings out of Const. A weak form approach would be more honest: the Const. is what the people say it is, and if ct gets it wrong, they change it.]
  • There was a dispute between Mandela and a Commission – three cases – the Ct made it quite clear that the role the Const Ct occupies is very important: it must make sure that all the other branches of the govt toe the Const’l line
    • e.g. whether Parl has performed its Const’l obligation
    • or disputes between arms of govt.
    • or the Const’l validity of a Parl. or provincial gov’t bill
    • or abstract review: if Pres is doubtful of constitutionality of bill, can refer it to ct to determine whether a bill is constitutional
    • “certifying” amendments to Const., i.e. that they conform to Const.? (did I hear this correctly?)
  • the court has original jurisdiction in ALL of these cases
  • If there has to be an intrusion into a branch of govt, that intrusion has to come from the highest entity in another branch (this is the principle of comity); and that’s what the Const Ct is.
  • note: Ct has made clear: SA Const dsn’t have a rigid separation of powers. One domain can intrude into another in some contexts, if mandated by the Const. Two cases:
    • missed
    • soc/econ rts: req.s the ct to make decisions that have an impact on the budget, on policy
      • but the ct has made it quite clear that their role in reviewing decisions is merely to det. whether the govt. policy is reasonable
      • the purpose is not so much to reallocate resources but to det. whether the policy of the govt. conforms to the Const.
  • T: two points:
  • 1. transitional justice problems: e.g. the problem of judges who worked under the prior regime (some of whom had gone far over the line)
    • there’s a jurisprudential issue called “positivism” where judges under apartheid regime said: we’re judges, we enforced it as written – it was written to be racist – if you change the law, we’ll do what it says
      • and there’s a cert. amount of force to this view
      • but against this view is the legal realist view: there’s no such thing, really, as enforcing the law as written
      • and you’ll find in the pre-transition regime judges who made racist decisions that were defensible under the law and others that made liberal decisions that were defensible under the law
    • and the problem you’ll have is distinguishing, among those who in past made racist decisions, among
      • the ones who made those decisions b/c they’re racist
      • the ones who made them b/c they’re actually in good faith positivist and read the law that way
      • in other words: distinguishing racist legal realists from non-racist positivists
    • the policy preference for post-transition regimes is to assume the legal realist position and look for either new judges (as in the Const. ct) or the judges who were okay under the old regime
    • there’s still a personal issue tho: how many judges who were good will you be able to find? in some places, you just won’t have enough judges or people eligible to be judges from the pool of the liberal
  • 2. there’s basically a one-party system in SA
    • note that there are varieties of one-party systems
      • but structurally, you can imagine why the one-party party in SA will regularly come into conflict w/ court
      • b/c whenever ct. questions a policy, it will always be in conflict with that party – v. going back and forth between parties, sometimes criticizing one, other times criticizing other
    • ANC also says: we set this system up – and we have some moral commitment to its success
      • some S.A. tell T. that one of the most important events in establishing the credibility of the Const. Ct. was a very early judgment overturning a decision made personally by Nelson Mandela
        • and NM said, when asked, his reaction: Well, this is what we were fighting for – the rule of law. We have to do what they say, b/c that’s what the rule of law requires.
      • Q, tho: How long can that be sustained? The “we set this court up, so we’re committed to whatever it does” rationale for ANC supporting Const Ct decisions unconditionally
      • T. wd expect this support to dissipate, weaken at some point: starting to say: “it’s now us against them,” instead of “all of us being on the same side”
  • Nkobo: quite true – what leaders say re: ct orders is often based on idea “we built this ct., we can define it” – but there’s a point where ct must stand on its own. Critical point. And it’s at that pt. And what it does now will determine whether it stands the test of time.
    • when person leaves courtroom w/ a sense of offense, that’s when trust begins to erode
    • and what judges say in their judgments matters, affects confidence that people have
    • writing judgment isn’t occasion to ridicule other people;
    • it’s occasion to pt out: this is what Const says you shd have done – and you didn’t do it – and this is how you fix this.
    • elected rep.s don’t want to be dictated to by people they consider unelected and out of touch w/ the people
  • T:
    • 1. on the ability of ct.s to destroy their credibility: Zorkin (First Russian Const. Ct.)
    • 2. case Nkobo mentioned re: invalidating a Const amendment on procedural grounds (there had been inadequate consulation w/ the people); Davis also mentioned yesterday case of eviction from unsafe housing in which ct said: go back and talk it over with the people, figure out if there’s some better way of dealing w/ the problem.
      • 2 things interesting about these cases:
        • both embody very strong visions of what kind of democracy S. A. is
        • deisions by elected representatives have to have, in some contexts, direct support from the people – direct participation by the people
        • in poli sci terms, those are decisions that connect the Const. Ct. directly to the people – so in some sense going over the head of the representative bodies and parties and give the people reason to support the court – b/c giving them participatory opportunities – and so they’ll signal to pol leaders: don’t disregard the court
  • sidenote: KEY: me: when T speaks of “functionalist” approach, that’s absolutely my approach – it’s simply pragmatic, means-end thinking, v. saying that each country has its own unique history context bla bla bla and thus nothing can be compared between them.
  • T: Nkobo probably can’t say this, but I think personal histories of members of Const Ct matters
    • it’s been in place 15 years now, and still there are on the ct people who were detained under apartheaid (Nkobo being one; another detained from age 15-25), another exiled and victim of terrorist attack
    • the presence of people like that on ct has to give it a degree of moral authority that it might not otherwise have
  • T: sidenote: general note: the existence of personal ties btw people in diff branches can help to constrain tension between branches
    • e.g. in Israel: the pol elite is still extremely small, and they all know each other on a personal level – may not all like each other on a personal level! – but know each other. One source of tension re: Isr Supr Ct today is growth of elite, increasing diversity.
  • N: Const. envisions one system of law w/ Const. at top; but some are saying: there are two systems, one w/ Const at top and the other common law (odd: seemed to suggest: w/ Parl at the top?). A case (in re: pharmaceutica?) put this Q definitively to rest: all law of any kind must conform to Const.

***

27 Apr. 2009

  • EXAM: What he’s interested in is: say something interesting about comparative constitutional law. The Q is designed for people who want a framework – but if you don’t want to use the framework, that’s fine.

TODAY: Comparative Law of Free Expression

  • The general structure of free speech law has as one of its components the Q of when a gov’t can regulate speech which is, in the gov’t’s view, plausibly connected to some kind of social harm
  • The issues in the British etc. materials for today: those Qs are typically about the strength of the causal connection that’s required.
    • In the U.S., the basic rule is that the causal connection must be quite strong: “intended to incite imminent lawless conduct and likely to lead to such conduct.”
    • Elsewhere, the req. is not as strong
  • What we’ll talk about today are differences w/ respect to the weaker causal connection – situations where the gov’t is allowed to regulate even though the causal connection btw speech and resulting harm is weaker than would be req’d in U.S.
    • e.g. the British statute (Pub Order Act?) says: speech likely to stir up hatred – which is weaker than U.S. requirement
    • (me: note: the diff. Brit. legislation in that article sets a variety of required connections and intents – it’s changed over time)
  • Versus: tomorrow: speech that in itself inflicts social harm: libel: libel as invasion of privacy. US formulation: Words that by their very utterance inflict harm.
    • the borderline there is regulation of hate speech – and we may talk a bit about that today
    • it’s a borderline b/c some defenses of reg of hate speech have the form of saying: when h. s. is widely promulgated, there will be bad conseq.s, like rise of Nazism; whereas others say: h. s. is like libel, inflicts harm by its very utterance
  • T: summarizing what we didn’t read – U.S. v Canadian hate speech law:
    • at the gross level, the leading US case (RAV v. city of St. Paul) holds that reg of h. s. must meet high standard of causal connection that T outlined earlier, and that in general a statute proscribing h. s. w/o such a causal cnnxn is unconst.
    • in Canada and elsewhere, hate speech is more readily regulated: the leading Canadian case is one in which the speaker simply made hateful statements about Jews and was prosecuted for doing so – and Canadian supr ct upheld the prosecution.
      • sidenote: in’tl hum rts. law actually requires signatories to the ICCPR to make dissemination of hate speech unlawful
      • when US signed ICCPR, expressly included reservation re: that req
      • but the mere fact that ICCPR includes such a req is an indication of the outlier status of US in the world community on these issues
  • so: what happens in Can and elsewhere: Can cts apply less categorical approach to free expr than US cts do, meaning: in the US, the generating doctrine is: w/ respect to almost all kinds of speech, you can proscribe it only if… (showing of x yz ) – tho there are some narrow categories of speech that don’t req such a showing: obscenity, libel, fighting words – and even w/ respect to those categories, the US dsn’t allow proscription if the reg is viewpoint-based. E.g. suppose city govt made it unlawful to disseminate obscenity, but only if that obscenity contained criticisms of the sitting mayor. That wd be viewpoint-based.
  • so: in US, you need this causal cnnxn re: certain categories, and you can only regulate it if reg isn’t viewpoint-based
  • The Can approach not surprisingly relies more on two concepts:
    • 1. proportionality (the mechanism for this is the general limitations clause) (less categorical approach than US)
    • OR: 2. a reg of speech can be justified if it’s in the service of another const’ly guaranteed right – and the other principle here is often equality. [i.e., obscenity/sexually-explicit material is said by proponents of regulating it to degrade and disvalue women; the effect of which is to reinforce ideas of gender inequality and to make it actually, in the strongest versions, more difficult for women to mobilize politically in support of their interests – b/c women who are portrayed in pornography as persons w/ lower value than men will find it more difficult to persuade people that their views should be taken seriously]
  • so: in US, we don’t have this proportionality approach – which leads to more categorical approach; and ct.s don’t view equality as a justification to offset the regulation of speech
    • T: Look at controversies over free speech v. fair trial right (i.e., crim defendant says: the dissemination of this info will interfere w/ my const’ly protected rt to have a fair trial) ct.s have said: you can limit free spech in service of fair trail only if you make this very strong showing of causal connection (showing e.g. gruesome photos will almost inevitably prevent D from getting fair trial)
  • sidenote: the classic versions of reg. of speech are attempts to regulate criticism of draft in wartime – “You are fit to be more than cannon fodder!” – gov’t says: you make this speech, you increase the likelihood that people will resist the draft, fail to show up, etc. As we now think of that problem: law-breaking is a social harm, but we require a very strong showing of causal connection. (So: there isn’t any balancing done here – or rather, it’s done in the development of the relevant categories – we come up w/ the category of viewpoint discrim. for balancing reasons. Note: there are ways of bringing the so-called US categorical approach closer to proportionality approach used elsewhere – and one way is to read the categories as instances of balancing.)
  • NOW: why these differences might occur: Why are there differences between the US approach and the approach elsewhere in the world?
    • 3 things worth mentioning now:
      • 1. straightforwardly textual: the US 1st Amend says “Congress shall make no law restricting the freedom of speech” – it is by its terms categorical, and the US dsn’t have anything textually like the general limitations clause. Now, everyone knows that the 1st Amend can’t be asbolute – and the things Can.s think about re: gen lim clause are relevant to what courts shd think about in US also. Everybody knows that. BUT the US const. lang. induces a diff. way of thinking. From a free speech fanatic’s POV, the gen. lim.s clause lets everything in – the Can.s can think about anything under this banner; whereas the absolutist nature of the US phrasing, it is said, makes it harder to bring in some things, and makes it easier to think about, again, categorical restrictions. One aspect is text.
        • note that US textual absolutism is also an outlier in the world – most Const.l systems have something like a general limitaitons clause. (eg. Euro Conv on HR: everyone has rt to f of expr; but that rt can be limited by the following reasons… list of 10 reasons – pretty much covering the territory of everything a gov’t might want).
        • so: One reason for the outlier status of the US approach to free speech may be the way it’s formulated in Const.
        • later note: stu: given that proportionality does take place, this “textual” aspect may actually be just an epiphenomenon of the cultural element – me: Black using text b/c he wanted more protection, etc. – T: differences in underlying culture may influence how people approach the text; if we had a less absolutist text, we might still end up with same categorical approach
      • 2. the US has had now 90 years of exper in adjudicating COnst claims under the free speech clause, and there’s been an evolution in the US approach, from one that allowed a fair amount of restriction to the current situation, where the US law requires a very close causal connection.
        • Other const.’l systems have had much less epxerience. Can Charter is now ~27 yrs old. Germ Basic Law ~60 yrs. old. And there are fewer cases.
        • Schauer’s arg. is that over time we might well observe the development of categorical approaches in other Const’l systems as well
        • One reason is just that exper. leads you to see that some problems are actually quite similar to other problems. If you’re doing a gen limitations approach, you might see these prob.s as rather different. Then over time you discover you’re thinking about them in the same kind of way – and then you reorg. your thinking to be based on a category.
          • e.g. ct might think the prob of anti-Semitic speech is quite diff than the prob of pornography. We might talk about diff things in these contexts. And then you might start to see hate speech and porn as similar problems later on. Might come to treat them as the same category.
        • And another thing about categorical approaches: they provide much more guidance to lower ct judges and to legislators.
          • If you’re applying a proportionality analysis, it might be that legislators and lower-ct judges will feel less constrained by the doctrine.
          • The defenders of proportionality suggest otherwise – they think it’s a better structure for thinking than the US categorical approach.
      • 3. cultural: the best version of this: Canadians are just nicer, and therefore more sensitive to intrusions on personality through hate speech or pornography.
        • more generally: the cultural differences would be something like: there’s a much stronger ideology of individualism in the US, and a much weaker communitarian ideology, than exists almost anywhee else in the world.
        • (me: and US being melting pot; and not being ethnically defined? but dsn’t quite work – Canadian also not ethnically-defined; and you might say a nation defined by ideology wd be even more receptive to speech regulation…)
        • in US, kids: sticks and stones… but words will never hurt me; T: wd be interesting to find out if this phrase is prevalent in other countries
        • T: US culture is a “suck it up culture” – oversimplifying – and you see libertarians making this response in First Amend arg.s sometimes
    • sidenote: T’s model of 1st Amend jurisprudence: a decision-tree structure, with at end of branches the various categories
      • similarly, the proportionality approach has a decision-tree structure
    • and the more categories you have, the more it’s going to look like a general balancing approach
  • Now into some materials we did read: there are seemingly significant differences btw the US approach to obscenity and hate speech on the one hand and the approaches taken in other nations to those topics – BUT there are other doctrinal areas where the US approach is not that different from approaches elsewhere. The two primary areas are commercial speech and campaing finance regulation (note: section in bk on camp fin a little misleading).
    • Commercial speech: there’s a worldwide tendency to subject reg.s of comm. speech to very high standards – making it extremely difficult to regulate comm. speech (me: just as it’s difficult to reg. a lot of speech in US – so here, the US’s high standards aren’t an outlier) – part of this is almost certainly. The area of reg. of comm. speech that’s been most vigorous is tobacco, and tobacco industry is very well financed almost everywhere, is able to finance challenges.
        • e.g. EU adopted restriction on tobacco adv. in service of health, and Euro Ct Justice (not EHRC) sd this was outside scope of authority granted to EU organs. (Went back and rejiggered, passed the test w/ a different version of regulation.)
      • But the restriction on the ability to regulate comm. advertizing cuts more broadly –
        • e.g. decision by Germ. Const Ct restricting govt’s power to say something about the advertising of chocolates. A very low-level regulation.
    • Campaign finance is a little more difficult: The US system is one in which pub financing of pol campaigns is const.ly permissible but politically not achievable, and stringent regulations on contributions to cnadidates are constitutionalyl permissible, and even relatively modest regulations of expenditures in suppot of cnadidates but indep of them are const.ly extremely suspect.
        • so: pub financing permissible but not done
        • restrictions on contrib.s to cnad.s: permissible
        • restrictions on third thing above: not permissible
      • Elsewher:
        • Given public financing, of course you can restrict contributions to cnadiates (that’s the whole idea!)
        • what about indep expenditures: legislatures have tried to restrict indep. expenditures, and Const. Ct.s have been very suspicious of such restrictions (tho not quite as suspicious as in US)
          • e.g. EUCHR decision striking down very low restriction on indep expenditures in GB – 5 pounds – so if you were an animal rts activist, you cdn’t spend more than 5 lbs. distributing leaflets that said: find out what the candidates’ positions are on animal rts.
          • Britain’s been pretty resistant to these restrictions – tried upping limit to ~100 lbs. – T guesses that will be struck down too
      • The point: structure of camp finance in the crucial domain of indep expenditures is similar in US and elsewhere
  • so: why are there the differences that we see?
    • in virtually all nations w/ reasonably devloped law of free exp, there’s a fiarly large domain of protected speech
    • and where the constitutional system allows for regulating speech, there’s a reasonably strong tendency to construe the area of restriction narrowly
    • and this is point of British and Israeli material
    • the idea is: you can have a const’l system that says it’s permissible to reg. hate speech (or, in terms of Brit. statute, speech that’s likely to stir up haterd) BUT we the ct are going to exmaine very closely yr claim that this paticular speech met that criterion – was it really like to stir up haterd? etc. so that lots of things that in a colloquial sense might be considered “hate speech” won’t fall into the permissibly regulated domain
    • that approach is the classic pre-HR Act, pre-Basic Law of Human Dignity approach in Britain and Israel. (Materials re: protecting free speech w/o a Const.) Before HR Act, Brit did it by means of administrative law.
      • anecdote mentioned before: last fall, T gave speech in Ireland claled smthg like “against jud review” – and person doing introduction sd to audience: you’ve seen the ad, you may have thought that it wd be about jud review of decisions made by admin bodies/exec officials – that’s not what it’s about. T: THIS was what jud review meant in G Brit context. The ultra vires approach: judges defining what is beyond the power of executive decision-making.
      • so: the Q wd be: do the statutes authorize punishment? and the answer isn’t always “yes.” Judges wd construe the statutes narrowly – this was the tool they used. See Courtney article, which goes thru what the statutes say and how the Brit cts responded to them. T: Altho the course of deicison wasn’t uniform, there was a tendency to construe the statutes narrowly, acomplishing by means of stat inerp a fair amount of what US cts do by means of Con Law. Not everything – but the differences are smaller than you might think.
  • so: why are there thees differences? T: three possibilities:
    • 1. institutional: in GB, as you can see in the Courtney article, hate speech prosecutions can be authorized only by the AG – one person. Completely centralized. (Or at least was at time of article.) v. in Canada, T. has heard that hate speech prosec.s are also centralized in the provincial AGs (so: 11 or 12 – very small # of people). In the US, if we allowed hate speech prosec.s to go forward, there’d be 50k prosecutors authorized to go forward. The risk of this – if you concentrate the authority, there are two (maybe associated) effects:
      • 1) the risk of abuse is probably smaller than if authority is diffused, but even if the risk isn’t smaller,
      • 2) the ability to politically check the decision-maker is going to be much greater
        • a decision by Brit AG will be highly visible in the relevant political community
        • a decision by Amer AG in St. Paul (where RAV case came up) will be less visible
        • so it might be that hate speech regulation is less worryisome from a free speech POV if the authority who initiates prosecution is centralized like this
        • so: in the US, we may substitute const. restrictions on ability to reg. hate speech for an institutional structure that concentrates the power to intiiate prosectuions
    • 2. also institutional: the US federal system: think of the ultra vires (VY-REEZ) approach – it says: we’re going to construe this statute narrowly so as not to authorize this action you’re taking. In a unitary system, a Const. Ct, or a gen ct w/ Const authority, can do that statutory construction. v. In the US, when the US SUpr Ct faces a decision from a state SUpr Ct, it can’t construe the statute narrowly – it has to take the construal given to it by the state Supr Ct.
      • so: here, a substitution of Con Law for the ability to construe statutes narrowly
      • you can see this happening sometimes when US Supr Ct confronts fed statute – instead of striking it down as unconst, they might sometimes construe it narrowly
    • 3. historically: Germany, e.g.: it is a criminal offense in Germany to publish a work that denies that there was a Holocaust during WWII. “The Holocaust Lie Statute.” And Germ. Const Ct upheld constitutionality of that statute. And perfectly easy to understand why. The historical experience of Germ shows that EITHER the dissemination of those kinds of words can lead to really terrible outcomes OR that given the historical experience of Germany during WWII, or during the Nazi era, Germ has to repudiate Nazi and Nazi-like expressions. (We saw this in Germ abortion case: b/c of hist., Germ is now forced to take certain positions/actions to show that they’re no longer like that.)
      • today, where are there similar historical experiences?
      • there’s a conviction in the Intl Tribunal for Rwanda for disseminating hate speech – which led to genocidal slaughters.
    • There’s a related idea: in some societies, the dissemination of hate speech really does run very high risks of causing not just racial hatred, but real communal disorder. e.g. in Rwanda example: it actually did, and nobody intervened beforehand. A law effectively enforced beforehand might have been effective? But: if you have a society where you believe this risk exists, you might want to say: you can’t disseminate that speech. The question then is: who do you trust to make the judgment that there is such a risk? Suppose the justificaiton offered for Can hate speech reg was “risk of social disorder,” along these lines. It dsn’t look to T as if Can and the US are all that different w/ respect to risk of social disorder occurring as a result of the dissemination of hate speech. The situation in Germ and GB may be different. “Ethnic tensions” may be greater. Risk of communal rioting higher.
      • here’s a more problematic example: Singapore. It has a very stringent regulation of speech in general. A very weird system in some of its aspects…
        • (unrelated anecdote: a prominent Singaporean novelist wrote an op-ed in major paper. Govt didn’t move against her, but criticized her very severely, saying that she had moved outside the sphere of being a novelist into the political sphere – and it wd’ve been okay if she’d published this in a novel, but not okay as an op-ed piece in the newspaper. And there are examples of creative artists who get permission to put on performance pieces critical of govt. policies – which wdn’t be okay as political tracts.)
      • Singapore govt’ says: Singapore is 77% Chinese, 14% Malay – was briefly part of a federation w/ what is now Malaysia – it was expelled from the federation for what the leadership of the party in Singapore believes to have been fear of Chinese domination. There were intercommunal riots during the colonial period btw the Malay community and the Chinese community. Most historians attribute those riots to mismanagement by Brit gov’t, not deeply rooted cultural conflict. There’s one post-indep. communal riot.
      • The govt says: we have this volatile ethnic mix, and we’re a bridge away from Malaysia, and 40 minute ferry from Indonesia, and religious divide (Malays mostly ethnic; Chinese Buddhist/Confucian/Christian), and we’re surrounded by Muslims in Malaysia and Indonesia – the risk of communal violence triggered by hate speech is extremely high, so we’re going to be very vigorous in making sure it dsn’t occur.
      • The problem is: is this true? Do you trust the gov’t?
      • In contrast, there’s India, where there have been recent intercommunal violence triggered by disparagement of religious beliefs. There the gov’t’s claim for stringent regulation wd be credible. But the govt in place has no strong interest in regulating the speech.
      • sidenote: it was a big deal when Singapore govt opened up a kind of Hyde Park corner – had to reserve place, but no preapproval of speech req’d – at first, cdn’t use amplification, now can.
      • sidenote: in order to be a registered Sing. domestic media org., your board of directors has to have cert. % of gov.t officials on it
    • [me: even if risk is real, util. calculations going both way – reg. of hate speech cutting off safety valve, etc. – indeterminate – thus best to move to plane of principle? but principles conflict…]

***

28 Apr. 2009

LIBEL

THREE CASE STUDIES

  • US
  • other common law countries
  • Germany (as proxy for Europe)
  • Overall, the US is:
    • either substantially less concerned about privacy than other nations are
    • OR substantially more protective of press freedom than they are
  • The question becomes: why are there these differences?
    • final reading (liberty v. privacy) suggests: the difference may be the latter
  • one explanation that won’t work here: the idea that we’ve learned from experience (see yesterday, re: Schauer)
    • b/c all of these nations have been dealing w/ these libel problems for roughly the same amount of time
    • in US, libel law had developed as private law doctrine w/ some notion that there were press freedom issues rattling around
    • but not constitutionalized until Times v. Sullivan
    • and Lüth case was even earlier than Times v. Sullivan!
    • (sidenote: Chaplinsky dictum 1942: the 1st Amend has never been thought to cover: obscenity, fighting words, etc. – various categories)
  • another explanation: CONSTITUTIONAL LEARNING: by other nations, from the US doctrine and experience
    • around the world, people/judges know of the US approach to libel law
    • and more or less universally, they’re rejected it – self-consciously examined their law in light of what US Const experience reveals, and they say to themselves: the US experience shdn’t be emulated
    • the primary reason for rejection, T thinks, is a sense that the US doctrine is
      • too complicated
      • and simultaneously underprotects privacy
        • i.e., US Times v. Sull standard applies to “public figures” – extremely expansive category in US law
        • people elsewhere are quite nervous about the expansiveness of the category
        • everyone understands that there are problems for imposing liability for libel in cases involving pub officials –
        • but once you move away from this category, people outside the US get nervous
        • “I will use Lindsey Lohan as my figure.”
        • People elsewhere wonder why it shd be the case that as a matter of fundamental Con doctrine, a newspaper can’t be held liable for publishing a false statement about Lindsay Lohan – who cares –  except her? what do we lose by punishing this?
          • me: we seem to value the maximization of truth more than the minimization of falsity?
      • and underprotects newspaper publishers
        • b/c Times v. Sullivan standard = you can be held liable for pub of false statement of fact if the P can show that you published it w/ knowledge of its falsity or w/ reckless disregard of whether it was true or false
        • we have a system in which Ps are entitled to discover relevant facts – and the reckless disregard standard means discovery can be quite intrusive – editor and reporter having to sit down and go through step by step what they did to verify the statements that they published
        • and b/c there’s liability only for false statements, you start out knowing that their verification processes failed – so: inquiry into why they failed can be quite intrusive

CASE STUDY #1: US LAW

  • An overbroad statement: in US, the driving distinction is a sharp distinction btw truth and falsity
  • Here’s the overbroadness of this statement: everybody agrees that you can’t impose liability for truthful statements, no matter how harmful those statements are, if they are true (with qualification he’ll come back to) – in that case, publisher is completely immunized from liability
  • so: this is all re: factual statements
    • note: some unclarity on the margin re: what is a factual statement:
    • e.g. p. 1622: the Reynolds case: “Goodbye Gombeen Man” case (Irish slang for usurer) – you could say: that’s the expression of an opinion (“he behaved while in office in the way that usurers behave, exploiting the poor”) – but it also cd be characterized as an assertion that his behavior was the equivalent of stealing money from the poor.
    • US draws a fact/opinion distinction (key case involves a high school wrestling coach), but resists doing it, doesn’t want to give people a loophole by e.g. prefacing all statements with “In my opinion…”
  • So: categories
    • True statements
      • opinions (always immune)
      • facts
    • False statements
      • #1: everyone agrees there is no Const value in false statements of value as such: if you make a statement that the PM of Singapore obtained sweetheart deals in purchasing housing, and that statement is false, you have done nothing to advance public understanding of anything
        • T: this is v. Mill (falsities force people to question whether what they believe is actually true – strengthens their belief, improves public understanding, b/c people have to explain why the other theory is bad)
        • T: it’s not clear to me that this testing truth by circulation of falsity idea works re: statements of fact (he can see how testing truth by circulation of falsity works re: theories – e.g., having to defend your belief in capitalism in response to circulation of Marxist ideas)
          • suppose you’ve always believed that the PM of Singapore is an honest and upright man, and then someone circulates this false statement about the sweetheart deal, and you discover that this is just a false statement – is your belief in the PM’s honesty and uprightness reinforced in some way?
          • not clear to T that that’s right
          • T’s intuition: move to outrageous assertion: PM is member of NAMBLA, pederast – does the refutation of that somehow strengthen your belief that the PM is an upright and honest person
          • so what T comes back to is the assertion that there’s no Const value in false statements as such and they can injure reputation
        • me: but circulation of a false statement-of-fact libel, followed by its discrediting, could immunize against future statement-of-fact libels – thus there would be a Const value to the first false statement
          • T. said he’d have to think about it, pointed out that you could also be immunized against future true statements
          • but: me: the same cd be said re: #2 below. The false statement of fact wd still have Const value; it wd just be a Q of whether the disadvantage re: truth outweighed the advantage. Just as in #2, truth may be maximized, but falsity isn’t minimized – isn’t unclear a priori whether benefits to truth outweigh costs or vice versa.
      • #2: second part of T v. Sullivan: provides immunity for dissemination of false statements of fact: presenting puzzle: why should this be immunized?
        • the chilling effect idea is the justification
        • assume D is “risk-averse”
        • Brennan: the D will “steer clear of the forbidden zone” – in order to avoid mistaken imposition of liability – risk-averse Ds will avoid risking getting mistaken liability
        • thus a loss to the public of true statements
        • how do we ensure that they will publish these statements?
        • flip the zone of error, so that Ds will be able to get away with a certain number of false statements
        • T thinks this is a great construct
        • BUT: you have to understand that certain false and harmful statements will be immunized
        • SO: newspapers, in order to make money, can inflict harm on public figures – even by publishing false and damaging statements
      • Why do we do it this way?
        • 1. greater value placed on free expression in US than elsewhere
        • 2. there may be skepticism about the claim that dissemination of false statements of fact about public figures actually harms them – we might worry that juries might find actual harms that really aren’t there (e.g., the case in Times v. Sullivan – no sensible person cd think that Sherrif’s rep in Alabama was harmed by these false but not significant statements)
          • sidenote: the idea of the libel-proof plaintiff: John Wayne Gacy, etc. – his reputation is so bad, you can say anything about him w/o harming his rep
        • 3. the suck-it-up response: just get a thick skin
      • … missed…
      • INVASION OF PRIVACY:
      • The sense of malice as reckless disregard won’t be available: I published it; I knew it was true; or: weird situation: I published it, it turned out true, but I didn’t know it would be
      • SO: the standard has to be something like malice in the sense of ill will
        • e.g. SIDUS case – Sidus was a child genius, 3 Harvard degrees by age 14, disagreed from public view, N Yrkr 25 yrs later found him, did a story about what his current life was, he sued for invasion of privacy – b/c his life had turned out to be not so great – bumming cash on streets, single-room occupancy hotel
          • State court said: you can’t impose invasion of privacy liability under these circumstances
          • It helps people to understand things about education, life, the world, etc., this has value
          • there was no ill will
        • stu: and wasn’t Sidus a “limited purpose public figure” b/c of his youthful genius – and this was only about that?
        • T: WaPo published story about owner of ship-owning company who installed his son in a management position and steered opportunities to him in a way that was not justified in certain profit-making terms. So father and son sued the WaPo, the ct.s say that w/ respect to the steering of this business to the son, the son is a limited purpose public figure, so Times v. Sullivan standards apply. If, in the course of this story, the Post had a paragraph describing falsely that whenever son dropped kids off at school, they were crying profusely, that wdn’t have bearing on corruption story – and w/ respect to that, he wd be a private person.
        • In contrast, Lindsey Lohan is an all-purpose public figure. Britney Spears (has kids).
        • Stories about whateer she does, even if false, will be subject to Times v. Sullivan standard.

CASE STUDY #2: OTHER COMMON LAW COUNTRIES

  • Less protective of publishers than US
  • Gen standard is “reasonableness” – defined by but not limited to professional standards
    • e.g. distinction btw breaking news and investigative reporting: in former case, you don’t have to be quite as thorough in checking facts
      • in Reynolds, they uphold verdict of 1 penny
      • one ground: they didn’t publish Reynolds’ explanation of what he did
    • What this does is provide greater privacy to politicians/celebrities
    • at cost of some chilling effect (on publication of truth)
  • T: the problem w/ a reasonableness approach:
    • the Singaporean case T described earlier: the gen. phenomenon in Singapore is that pol opponents of the one-party state are not thrown in jail, they’re just sued for libel – and b/c of nature of pol discourse, pol opponents actually do make false statements of fact.
    • sidenote: there are such neat things about Singapore… currently almost exclusively one-party state – in an election, prominent opposition figure, known in Singapore as JBJ, ran for constituency-based seat and lost, the PAP created “non-constituency members of Parliament,” these people were appointed by govt to sit in Parliament, and they appointed JBJ. Then JBJ makes a statement about Li Quan-Yu, who sues him for libel and wins a judgment. The effect if JBJ had to pay wd be to bankrupt him, which wd make him ineligible to sit in Parl by one of Singapore’s rules. Li Quan-Yu says he’s satisfied, relinquishes claim. LQY quite a remarkable figure. Smart at devising a one-party system that works w/o being overwhelmingly repressive.
  • Anyway, Liability is easier to come by in common law countries
  • Also note: w/ development of transnational media, incl dissemination of info over Internet, there’s a phenomenon of “libel tourism”: people whose homebase is in US who are (they think) libeled by statement over Inet, go to UK to sue. (Pending statutes proposed in US to try to deal with that…)
    • or: a prominent businessman in Russia who is opponent of Putin is smeared (false statements) by Putin-controlled media, so he goes to Great Britain and sues for libel (b/c he can’t in Russia, it’s an authoritarian country)

CASE STUDY #3: GERMANY

  • Lüth case: we discussed it on horizontal effect earlier
  • Also celebrated b/c it’s like Marbury in US or Oakes in Canada: it provides a central interpretive approach to the basic law overall – i.e., the section discussing objective order of values
    • the Basic Law embodies an obj order of values, and all Const interp. must be done in light of this
  • this pt is important for our purposes b/c it caputres the image/metaphor that in a case involving libel, you have to rank free speech and human dignity – and the human dignity lang here shd resonate here w/ the Germ abortion discussion (hum dig reallyimportant in Germany) – so: when we worry about libel law or statements that harm reputation, we have to be alert not just to the free speech implications of it but to the hum dig implications
  • Ct says: lower ct didn’t give enough weight to the free speech aspect
  • BUT in other cases, esp. celebrity csaes, Germ/Euro cts more protective of hum dig, more about privacy interests than US cts are
  • Prob the most celebrated case – not really libel, but invasion of privacy – is decision by ECHR (thus expresses overall Euro approach to the problem): Princess Caroline of Monaco is on vacation w/ her children and they’re very rich, so they have a private estate or hire a hotel, and there’s a lake behind the hotel, and they’re out on the lake in a boat – the paparazzi are on public roads, but can see Princ and kids on lake, and they take pictures and publish them – there’s nothing personally embarrassing about these pictures – she sues: invasion of privacy – and the Germ cts say: there’s no inv of priv here – the Euro Ct of HR says there is – she’s done reasonable things to protect her privacy, there’s no signif pub int in publishing these pictures of her and her kids, so Germ ct shd’ve imposed liability
    • that’s an indication of the relative value that Euro approach places on free speech and human dignity
    • and it’s imporant to note that “hum dig” here was just “she was w/ her kids” not topless, etc.
    • equivalent in US Weekly or People – snapshots of celebrities doing their shopping, etc. – and in Europe, there’s liability for publishing those, not in US
  • Why this difference?
    • Best explanation T knows is by Whitman, at end of material: Whitman’s is a story about equality: suppose you have a hierarchical society, and you move to a more egalitarian one (that’s happened both in US and Euro) – what are the effects on notions of human dignity? there are diff effects:
      • you can either level upwards
      • or level downwards
    • that is:
      • You can say: everybody is entitled to the kinds of privacy/hum dig protections that aristocrats usedto have
      • or that nobody is entitled to what ord people used to have in the hierarchical society
    • US took latter approach, Euro took former approach
      • so compliations of info that wd be unquestioned in US are illegal all across Euro
    • everybody in US as exposed to pub view as anyone else

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