WORLD SUPREME COURTS ROUNDUP

Three news items on action in world high courts this week: The Japanese Supreme Court rejected several challenges to the ballot for legislative (upper house) candidates. See here, here and here. The suits had challenged malapportioned districts and new ballots that allowed candidates to write in the names of candidates or parties. The precise legal bases for the challenges are not related in the news articles, however. The vote on the apportionment issue was close -- 9 to 6, with four of the members of the majority signalling a willingness to strike down future apportionments if the disparity between districts gets worse. Currently, votes in rural districts can count as much as five times more than votes in urban areas.

In the Philippines, the Supreme Court invalidated a government contract with a voting technology company. With elections only five months away, voting officials complained that the Court had unwisely compressed the time frame for establishing voting procedures. They have asked the Court to reconsider its ruling. I don't know how common such reconsiderations are in the Philippines, however. See here and here.

Finally, the Supreme Court of Canada heard arguments in a clergy abuse case in which they are asked to determine whether or not the Catholic Church, rather than simply individual priests and the individual episcopal corporation, can be held financially liable. See the CBC story here, and the Court's press release here.

TWO SCHOOL FUNDING BATTLES

From the Rockingham News (Pleistow, NH), we learn about a bill pending at the statehouse in Concord to strip judges of jurisdiction over school funding cases. That bill, the latest stage in a battle with the state high court started over a decade ago, is up for a vote on January 22. In related news, a school voucher bill was sent back to education authorities for further study. For some background on the NH case, see this page at ACCESS, a project of the Campaign for Fiscal Equity. And from the Times Record (Fort Smith, AK), we learn about ongoing attempts by the state legislature toward meeting court-imposed education funding standards. For background, see here.

BEER AGAIN

Mr. Remes: Pointing to an article discussing the phenomenon is good enough to qualify for a beer on this one! (Yes, I'm easily satisfied.)

TOM SCHALLER

Listen to UMBC political scientist, Oswego grad and all-around interesting guy Tom Schaller on NPR's Talk of the Nation today at 3:40. He'll be explaining how a caucus works. I'll be on the road and WAMU doesn't carry the second hour of ToN, so I'll probably miss it but listen to the audio archive.

MORE: Here's the audio link.

VOTING, KNOWLEDGE AND EXCLUSION

Chris Lawrence comes at Jonah Goldberg's advocacy of literacy tests and poll taxes (yes, you read that right; it's "back to the future" at NRO land as well) from a different angle than I do, here. Lawrence makes a Downsian argument in favor of ordinary citizen inattention to politics (without the Schumpeterian cautions about the dangers of extremist parties exploiting the ignorance or about the need for bureaucratic stability and a good leadership pool; I'd still like to read his dissertation!).

I find it staggering that Goldberg can claim that he sees no "principled" reason against poll taxes and literacy tests at the same time that he is complaining about the political ignorance of ordinary mall-goers. I want to be fair: determining the boundaries of membership in the polity is difficult and "principles" here are elusive. Indeed, perhaps the main principle is that there has to be some exclusion from the enjoyment of citizenship rights, whether it is exclusion of minors or non-resident non-citizens. Still, at least three principles can be advanced against exclusionary voting practices like literacy tests and poll taxes.

First, history is going the other way, toward more inclusion, and this inclusion is the continuation of an historical process of struggles toward inclusion that Americans should be proud of as part of their political heritage. I'll bet that "not being on the wrong side of history" isn't a principle that Mr. Goldberg cares much about, if it is a recognizable principle at all. I doubt that his colleagues in the conservative movement would be happy to inscribe "poll taxes and literacy tests" on their political banner, though. Shifting electoral appeals toward growing voting blocks (such as Latinos) is a smarter approach for growing your base.

Thus, the second and third principles are more important: practices of exclusion invite abuse (power corrupts, after all), and people who are affected by a political decision should have some opportunity to withhold consent to that decision (and voting is one of the central democratic mechanisms for this withholding of consent, as Tom Paine argued).

So, it seems to me that Goldberg is on the wrong side of history, too sanguine about government uses of power, and not concerned enough about the traditional liberal principle of consent of the governed. If you can ignore the paradox for a moment, sounds like he would be a prime candidate for exclusion at the polls, by his own (admittedly sketchy) criteria. And if I got to implement the test, he would be! (P.S.: that last sentence is ironic.)

I'LL BUY YOU A BEER

If you can demonstrate that you came up with the term "political hate speech," I'd like to buy you a beer. No, seriously. The catch, though, is that you have to tell me how to do it: how to imagine and coin a term that will help to frame the debate in such a way as to advance the political fortunes of your preferred party and leave less savvy rivals sputtering with anger and confusion.

Maybe it will take two beers, or three. Nonetheless, we're not starting from zero here. I've figured out this much:

1. The term has to be derived from a term popularized by your political rivals. This creates momentary confusion among targets of the speech using the term as well among the real targets, the listening or viewing audience; helps to delegitimize criticism until a successful counter can be found; and allows you to shift the terms of debate to ground you are already comfortable with.


2. The term has to imply that your rivals are "negative" (look for this one a lot during the next few months)


3. The term has to allow you to tap into the moral authority of a position that many folks agree with (no one likes "hate speech," really, even if they disagree on the extent to which it should be categorized as protected expression for 1st Amendment purposes). Bonus points for tapping into the moral authority of positions you disagree with but you suspect your rival or their supporters might. That increases confusion and shifts the ground of the discussion -- see point 1, above.

So, this much I understand. I also understand that it helps to have the distribution structure in place, so to speak. It's not just about being smart: it's about having the infrastructure -- and the capital to make investments in that infrastructure. Still, perhaps, after a few beers, you can let me in on some more of your evil genius, spinning-rhetoric secrets.

MORE ON COURT V. KNESSET

Mordechai Eisenberg has an article in Ha'aretz defending the Israeli Supreme Court, "Putting the brakes on despotism." Eisenberg argues that Court power needs to be preserved in order to keep the other political branches in line, and that the Knesset's attack on the Court should be seen as a reaction to justified criticism that the political branches have failed to live up to their constitutional obligations:

As things look right now, the criticism appears to be the adoption of an unjustified defensive posture in the face of judicial review - a posture born out of the fear that this judicial review will erode the political clout of the decision-makers and will expose their serious blunders.

For another perspective, see Daniel Doron's Jerusalem Post piece criticizing the Court, "A better way to help the poor," which cites both Isaiah Berlin (negatively) and Robert Bork (positively). BTW, Doron's "better way" is for the courts to enforce anti-monopoly laws, and, more critically for his argument, to get rid of welfare rights altogether. Here's Doron:

If the law would curb our rapacious monopolies and our banks by breaking them up, the poor would benefit greatly. Cutting monopoly "rents" can quickly raise the purchasing power of Israelis by at least thirty percent, a huge bonanza to the lower earning strata. It will improve their "dignity" far more than the measly minimal amount the judicial system is striving to secure for them; and it would not harm them or the economy through the negative incentives to work that welfare always creates, and the debilitating culture of dependency (talk about dignity) that welfare always promotes.

Finally my post yesterday omitted a link to this article in Ha'aretz on the temporary injuction issued by the Court in a case brought by groups challenging welfare cutbacks.

MORE RECORD

Two blog reactions to Jeffrey Record's piece criticizing the Bush administration for losing focus in the war on terrorism are particularly noteworthy. See James Joyner at Outside the Beltway (from whom I learned at dinner the other night that Jeffrey Record has made a career out of pushing strategic focus) and this post at the always interesting (and well-titled) Secular Blasphemy. Both have important points, but neither, as far as I can tell, meets Record's main claim: because even "rogue states" like Iraq can be deterred from using WMDs against the U.S. and its allies, invading them will always be a misallocation of resources in the war on terrorism. It's really hard to say that Record is wrong here; indeed, international pressure seems to have deterred Iraq from any significant acquisition of WMDs, never mind use.

Record's point is worth taking seriously, especially given the lack of any evidence that Iraq cooperated with al-Qaeda (the nightmare scenario that the administration used to justify erasing the difference between a rogue state and an immanent threat).

LINKS

Take a look at:

• A Sassy Lawyer in Philippine Suburbia


• Jurabilis


• May It Please the Court


• Hawaiian Independence Weblog (!!)

Sounds about right to me.

MORE: What is the "Center for the Advancement of American Capitalism?"

"DIGNIFIED HUMAN EXISTENCE"

More on the Israeli Supreme Court: the rightward block of the Knesset approved a "rebuke" of the Israeli Supreme Court yesterday, according to the Jerusalem Post. The text, as reported by the paper:

We consider with grave concern the incursion of the High Court of Justice upon the authority of the executive branch, and reject attempts to delegitimize criticism directed at judiciary decisions.

For the context, see this Ha'aretz article (also linked below), as well as this analysis of the Court's January 5th recent decision requiring the government to develop specific standards for what counts as "dignified human existence." This term is significant because it is found in Israel's Basic Law, although, as with other such general statements in constitutions around the world (such as India; think also of our Preamble), it's not clear what the phrase means. Is it a general, exhortatory goal that is not judicially enforceable, but nonetheless stands for basic, presumably shared values? Or is it an authoritative command for which the judiciary should bear responsibility? According to the article by Segal, Israeli Supreme Court president Ahron Barak has been pushing the Court in the direction of enforcing welfare rights that he sees as anchored in the Basic Law, and the Knesset is pushing back.

I don't know enough about Israeli constitutional law or recent political history to make any informed comments here; moreover, there are reasons to be suspicious of judicial assertions of exclusive interpretive authority. If there is a genuine disagreement between the Knesset and the Court on what constitutes a "dignified human existence," who will assert ultimate authority is probably a question of power -- who can mobilize more resources. Regardless of which arguments might persuade me, the fact that the Court is putting the issue on the agenda is still a good thing. More public dialogue about basic, presumably shared principles, is (often) a feature of a healthy democracy. The welfare rights issue can be intractable, to be sure, and dialogue is not an end in itself. Nonetheless, specific questions need to be decided (a likely issue before the Court, apparently, involves the cutting of welfare benefits), and if the Court helps ensure an appropriately serious approach to the dispute by reminding other participants about the basic law, that's good.

THANKS

Thanks to California Yankee , Die Niemandsblog, and José Luis Orihuela
for the links!

DINNER

Had dinner with James Joyner of Outside the Beltway fame last night. James had a more difficult time getting home than I did, apparently (reason: Metro). We had a good chat about political science, teaching, publishing, military reorganization (his dissertation topic), Don Rumsfeld, and the war on terrorism. Anita also put in an appearance at the end. . .

Like James, everyone I have met through blogs has been very cool. Makes me think well of the medium and of the human beings operating it. A good thought to start the day.

ISRAEL: SUPREME COURT V. LEGISLATURE?

Read Ha'aretz, "Knesset Schedules Special Debate on High Court Rulings." See also the editorial from the Jerusalem Post, critical of the Supreme Court, here.

OMB WATCH

Happened to meet someone from OMB Watch at a party last week for one of Anita's law school colleagues. Check out their site (also added to the roll at right). One interesting thing there, for example, in the recent issue of "OMB Watcher," is this story discussing a (so far) successful lawsuit filed by unions challenging burdensome and politically-motivated financial reporting requirements.

POLL TAXES AND LITERACY TESTS

Jonah Goldberg, at the Corner:

I think it's about time we toughened up the requirements for voting. Literacy tests, poll taxes and the like may have once been legitimately suspect because they were used to disciminate against blacks. But today, I simply see no principled reason we couldn't apply some sort of test to everybody. Indeed, I would be more comfortable having newly naturalized immigrants decide the future of this country at the ballot box than leaving it up to, say, typical white 18-22 year-olds. I know that the immigrants can pass a civics test. I have no such confidence in the kids at my local malls.

Democracy at the NRO. The poor and uneducated need not apply. Brilliant. Absolutely brilliant.

POLETOWN

A reader called my attention to the PLF / ACLU tag-team brief (PDF file here, press release here) in the Michigan case of Wayne v. Hathcock. The brief asks the Michigan Supreme Court to overrule Poletown, a 1981 case which allowed municipal authorities to condemn land (and displace a community) in order to give it to General Motors to build a factory.

Note in particular the argument of the brief at pages 11 - 16: the expansion of eminent domain puts the politically unpowerful at greater risk of having their property taken than the politically powerful. I like this argument, but I think I like it more than the folks at PLF. A broader perspective is also important here, given PLF's general unwillingness to distinguish (as a principled matter) between property rights held by the powerful and those held by the unpowerful. In other words, for PLF, the condemnation is not bad because the politically weak are affected; it's bad because it's an invasion of property rights that are defined, as a theoretical matter, irrespective of the holder. Thus, it seems to me that it's important to distinguish between Poletown and Midkiff, for example, in which which the Supreme Court rejected a challenge to the Hawaiian Land Reform Act of 1967, in which tenants could ask a board to condemn the property for the purposes of allowing them to buy it from the landlords (through a circuitous route, to be sure, since the tenant was technically buying the land from the state, if I remember correctly) at fair market value.

My guess would be that PLF would think that both Midkiff and Poletown are bad because they represent the use of state power to "take property without just compensation." If I'm wrong here, please let me know. Nonetheless, the history of Hawaii -- the extraordinary concentration of political and economic power produced by the process of colonization combined with the inflated housing prices resulting from the growth of the tourist industry -- conspired to prevent widespread land ownership. This is a problem that the legislature was right to attempt to rectify through the Land Reform Act, in my view.

At the very least, taken together Midkiff and Poletown show that it is critical to consider the social context of property rights in these kinds of cases. A focus on relative political power is part of that consideration, and I'm happy that PLF is willing to take it up in [its challenge to] Poletown.

BERLUSCONI LOSES IN ITALIAN CONSTITUTIONAL COURT

"Berlusconi's Immunity Thrown Out," via the BBC, here.

INDIANA SAME-SEX MARRIAGE CASE

Look at Marcia Oddi's coverage of Morrison v. Sadler, here and here.

BTW, through this post I also learned that Indiana has webcasts of its oral arguments (not just audio), available here. Very, very cool.

ADDED

Take a look at The American Street (via Talk Left).

THIS WEEK'S READING: PHILIP HEYMANN

Take a look at Philip Heymann's new book, Terrorism, Freedom and Security: Winning without War. It should be read in conjunction with the Record report (see the post below). Both Record and Heymann criticize the language of the "war on terrorism" for its obfuscatory effects. But while Record is concerned primarily with the question of whether or not the administration's war on terrorism (as currently pursued) will make us safer, Heymann is concerned with a broader array of questions, including what sorts of civil liberties trade-offs are defensible in the wake of the threat from al-Qaeda, and how to approach the relationship between intelligence services (newly invigorated after 9/11/01) and democratic accountability.

On the civil liberties questions, I haven't read too much disappointment about the Court's denial of cert in Center for National Security Studies v. Department of Justice. Perhaps this is because of the inherently ambiguous and un-sexy nature of denials of cert: they don't tell us very much aside from the fact that the Court isn't going to hear this particular case. Still, the DC Circuit Court of Appeals decision shows the kind of deference in the face of assertions of national security interests that one might expect to get from courts during wartime; the unwillingness of the Supreme Court to challenge that deference on the part of the lower court is not an encouraging sign for civil liberties advocates, although, again, the jury is still out.

TODAY'S READING: THE RECORD REPORT

Take a look at the study by Jeffrey Record, "Bounding the Global War on Terrorism," available here (PDF file). Today's WaPo has a story on the report. Record criticizes the administration for lacking focus in its "global war on terrorism." According to Record, the administration has allowed the war on Iraq (a "war of choice," in Record's view) to distract from the campaign against al Qaeda (a war of necessity). In addition, Record argues that the administration's "lack of threat determination" -- a lack that led to the war on Iraq, in his view -- parallels the same failure in the late 1960s that led to the war in Vietnam.

Record's basic strength is his attempt to evaluate whether or not the "global war on terror" as pursued by the Bush administration has been (and is likely to be) a success from the standpoint of security alone. His answer is no. Even on the democracy-building front, Record makes a strong argument: it's hard to make the case that developing democracy in Iraq, even if it is successful, is likely to help on the anti-terrorism front in the short term or even medium term. The process of democracy-building is likely to be slow and the rewards in terms of preventing terrorism are highly speculative.

Worth a read, at any rate.

ADDED

Some recent additions to the blog roll:

INTL-News (Joe Broadhurst)

Jihva

nepa blog