IT'S OFFICIAL

This week, I turned down a job offer here at Oswego and am moving to Bethesda. Anyone have any good job leads in the DC area that they'd care to pass along?

PS: I have had a wonderful time teaching here at Oswego and will miss my colleagues and my students. The school was generous enough to offer me a permanent position, but commuting to Bethesda has taken its toll on me, and I think that it's time for me to put my life and my loves above my job here. This is the kind of decision that provides a certain (surprising) amount of clarity as well. My plans are to look for something interesting to do in DC or its environs for the foreseeable future.

READ THE PLATFORM

Wow. Texas Republicans want to lock up gay people, put Bibles back in classrooms, and increase prosecutions of those who interfere with anti-abortion demonstrators at clinic entrances. And those are just the things that caught my eye. I'm wondering why the term "Texas Republican" isn't equated with "far from mainstream America" in the public mind.

Here are some highlights from the 2002 Republican Party of Texas platform (PDF file here). Note in particular the order of "constitutional rights" -- guns, abortion protesting, and rights to acknowledge that we're a "Christian nation":

Preserving Our Constitutional Rights

Right to Keep and Bear Arms – The Party calls upon the Texas Legislature and the United States Congress to repeal any and all laws that infringe upon the right of individual citizens to keep and bear arms as guaranteed by the 2nd Amendment to the United States Constitution; and to reject the establishment of any mechanism to process, license, record, register or monitor the ownership of guns. We urge the Legislature to clearly declare that it has the exclusive authority to determine where firearms may or may not be legally carried in the State of Texas, and that no other state governmental entity and no local governmental entity may regulate or prohibit the possession of firearms. We believe it is the responsibility of all gun owners to safely store and operate their firearms.

Freedom of Access Act – The Party urges repeal of the Freedom of Access to Clinic Entrances law. We reaffirm our belief in our constitutional right to peaceful protest, and we insist that assaults on peaceful protesters be prosecuted vigorously.

Christian Nation – The Republican Party of Texas reaffirms the United States of America is a Christian nation, which was founded on fundamental Judeo-Christian principles based on the Holy Bible. We also affirm the right of each individual to worship in the religion of his or her choice.

. . .

Celebrating Traditional Marriage

Family – The Party supports the traditional definition of marriage as a God–ordained, legal and moral commitment only between a man and a woman, which is the foundational unit of a healthy society. We urge the repeal of laws that place an unfair tax burden on families. We call upon congress to remove the marriage penalty in the tax code, whereby a married couple receives a smaller standard deduction than their unmarried counterparts living together. The primary family unit consists of those related by blood, heterosexual marriage, or adoption. The family is responsible for its own welfare, education, moral training, conduct, and property.

. . .

Homosexuality – The Party believes that the practice of sodomy tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans. Homosexuality must not be presented as an acceptable “alternative” lifestyle in our public education and policy, nor should “family” be redefined to include homosexual “couples.” We are opposed to any granting of special legal entitlements, recognition, or privileges including, but not limited to, marriage between persons of the same sex, custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values.

Texas Sodomy Statutes – The Party opposes the decriminalization of sodomy.

. . .

Educating our Children

. . .

Traditional Values in Education – The Party opposes faculty in public institutions abusing their positions to manipulate students to reject traditional American religious, moral, political and economic values. We support a character education curriculum and a program based upon biblical principles upon which our nation and state law system were founded.

. . .

Bilingual Education – The Party supports the termination of bilingual education programs in Texas.

Religious Freedom in Public Schools – Our Founding Fathers based the premise of this nation on God–given rights endowed by our Creator. – The Party affirms President Lincoln’s quote: “It is the duty of nations, as well as of men, to own their dependence upon the overruling power of God and to recognize the sublime truth announced in the Holy Scriptures and proven by all history, that those nations only are blessed whose God is the Lord.” The Party urges school administrators and officials to inform Texas school students specifically of their First Amendment rights to pray and engage in religious speech, individually or in groups, on school property without government interference. We support and strongly urge Congress to pass a Religious Freedom Amendment which provides: “Neither the United States nor any State shall prohibit student–sponsored prayer in public schools, nor compose any official student prayer or compel joining therein.” We urge the Texas Legislature to pass legislation similar to the American Heritage Education Acts passed in Kentucky, Indiana, and other states, which end censorship of the discussion of the role of religion in our founding documents, and encourage reading and discussing those documents in our public schools. We support the return of Bibles and other religious books to the shelves of all public schools and libraries.

Religion and Secular Humanism.

Since Secular Humanism is recognized by the United States Supreme Court as a religion, and our government–funded schools are prohibited from teaching any religion, the Party believes that Secular Humanism and New Age Religion in any form should be subjected to the same state and federal laws as any other recognized religion.

Scientific Theories – The Party believes that scientific topics, such as the question of universe and life origins and environmental theories, should not be constrained to one opinion or viewpoint. We support the teaching equally of scientific strengths and weaknesses of all scientific theories – as Texas now requires (but has yet to enforce) in public school science course standards. We urge revising all environmental education standards to require this also. We support individual teachers’ right to teach creation science in Texas public schools.

Link via American Samizdat.

MONEY WHERE YOUR MOUTH IS

Jason Nemes at Sixth Circuit Law calls attention to the "Congressional Responsibility for Judicial Activism Act," introduced by Rep. Ron Lewis, a Republican from Kentucky's 2nd District. See his home page here, and see also his press release on the bill here. Here's the text of the bill from Thomas:

108th CONGRESS

2d Session

H. R. 3920

To allow Congress to reverse the judgments of the United States Supreme Court.

IN THE HOUSE OF REPRESENTATIVES

March 9, 2004

Mr. LEWIS of Kentucky (for himself, Mr. DEMINT, Mr. EVERETT, Mr. POMBO, Mr. COBLE, Mr. COLLINS, Mr. GOODE, Mr. PITTS, Mr. FRANKS of Arizona, Mr. HEFLEY, Mr. DOOLITTLE, and Mr. KINGSTON) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

---------------------------------------------------------------

A BILL

To allow Congress to reverse the judgments of the United States Supreme Court.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Congressional Accountability for Judicial Activism Act of 2004'.

SEC. 2. CONGRESSIONAL REVERSAL OF SUPREME COURT JUDGMENTS.

The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.

SEC. 3. PROCEDURE.

The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.

SEC. 4. BASIS FOR ENACTMENT.

This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

------------

On the one hand, it might seem like Rep. Lewis is engaged in pure symbolism here. It's an election year; Republicans are hitting the judicial activism claim pretty hard this year in an effort to fire up their base and highlight the need for a Republican victory in November (can you say, Supreme Court nominations?). The bill has got the word "reponsibility" in its title, so it must be good. Only Republicans have co-sponsored the bill, so Democrats must be for "judicial activism," and after all, Rep. Lewis is working to defend the values that 2nd District Kentucky voters care about, and so on, you can fill in the rest. Plus, if there was any doubt, there is no real chance that this bill could pass this year. It's not a high-priority piece of legislation, there has been no concerted media campaign on its behalf, the congressional leadership has been silent here, and I doubt that the Republican leadership would really wish to put its money where its mouth is and take on the Supreme Court in such a drastic fashion. If Republicans were really serious about this issue, they'd pursue a constitutional amendment, which, of course, Rep. Lewis says he'll support (so keep me in Congress, voters from the 2nd District of the great state of Kentucky, so I can fight to keep Kentucky free of the gay-friendly, tort lawyer-loving, God-hating effects of liberal elite judicial activists!).

But there is another, more cynical reason why the Republican leadership is unlikely to support this bill. As Jack Balkin has noted recently, conservatives, too, want things that are unpopular; they, too, want judges to be "activist," just along the dimensions that they care about. And given the ways in which Republicans have been able to influence the constitution of the judiciary, it would be a great risk for Republicans to be serious about allowing Congress to "take responsibility for judicial activism." The whole point of stacking courts is to keep partisans (albeit usually partisans who are intellectually and jurisprudentially refined) in place beyond the lifespan of the particular governing coaltion that put them there. Allowing Congress to override Supreme Court decisions by a supermajority vote might threaten those gains over the long term. For folks whose time horizons are short, however, such a bill would have certain attractions, at least if the electoral advantages line up the right way. I doubt that there are national electoral advantages for the proponents of such a structural change, though.

All in all, aside from the Supreme Court cases that one might cite against such a bill (like Boerne v. Flores, which, among other things, is flawed in its reliance on the Civil Rights Cases, for example), and the truisms that Jason cites about the judiciary getting to say "what the law is," this kind of institutional reform is worth taking very seriously, especially for those (like me) who have been critical of judicial supremacy. Ordinary legislation won't cut it here; a structural change of this magnitude requires a constitutional amendment, and with the FMA on the table, who knows if something like this could piggyback on the publicity over FMA. I think it's highly unlikely, but the as this article notes, the idea of congressional overrides of constitutional decisions by the Court by supermajority vote has been kicking around in Republican circles for a while. It's hard to imagine a world where Congress could override Supreme Court decisions. One might think that it would be a little harder for members of Congress to rely on the Supreme Court to give them a free vote on difficult issues where both opposition and support of a law are politically costly (think campaign finance reform). Then again, the long time frames involved in most cases might cut the link between individual voting behavior in congress and the issue of Supreme Court overrides.

Here, by the way, is the list of cosponsors, all Republicans. You might want to ask your Representative why they cosponsored this bill. I'd be interested in any responses!

• Rep Coble, Howard - 3/9/2004 [NC-6]


• Rep Collins, Mac - 3/9/2004 [GA-8]


• Rep DeMint, Jim - 3/9/2004 [SC-4]


• Rep Doolittle, John T. - 3/9/2004 [CA-4]


• Rep Everett, Terry - 3/9/2004 [AL-2]


• Rep Franks, Trent - 3/9/2004 [AZ-2]


• Rep Goode, Virgil H., Jr. - 3/9/2004 [VA-5]


• Rep Hefley, Joel - 3/9/2004 [CO-5]


• Rep Kingston, Jack - 3/9/2004 [GA-1]


• Rep Pitts, Joseph R. - 3/9/2004 [PA-16]


• Rep Pombo, Richard W. - 3/9/2004 [CA-11]

WEB RESOURCE ON CIVICS IN FRANCE

In the wake of the religious symbols ban, the French education minister, Luc Ferry, has published a set of civics materials for educators. See the site here, press release here, and an article in the Nouvel Observateur here. (Nouvel Obs will also translate the article for you, and the results -- while far from perfect -- aren't that bad. See here.)

The site has a link to Chirac's December speech on laïcité, here (PDF file), a collection of short essays on key republican concepts here (PDF file), and something that's likely to interest Chris Martin, an extensive filmography, here (PDF file), with movies grouped under five themes (including "the other," "the absurdity of racism," "struggles for human dignity"). There's a surprising number of Hollywood films on the list, actually, including E.T. and Rain Main (both about "The Other"). One of my favorite French films, Hate (see Rotten Tomatoes here), didn't make the list, but perhaps it cuts too close to the bone.

MORE: Chris has some reactions here.

MARTHA VS THE CHAPLAIN

I've vowed not to play the hypocrisy game, and I haven't followed the Martha Stewart trial, but I really am wondering if those folks who are worried about the power of the state coming down on poor Martha Stewart are also worried about the power of the state coming down on Captain Yee. Somehow I doubt it, but I'm not certain about that judgment. I would bet that for every poor, defenseless millionaire who is on the short end of prosecutorial discretion (and can afford the country's finest lawyers for whatever appeals can be filed), there are a dozen, fifty, a hundred people who are really poor and defenseless and on the short end of prosecutorial discretion, and they just have to live with it. So even though I can't muster too much sympathy for Stewart, I would be willing to argue that she was treated unfairly if that argument would also highlight the way that others who are much worse off are treated unfairly.

FALWELL AND THE ACLU

The ACLU has teamed up with Jerry Falwell in a land use dispute with the city of Lynchburg. See here.

I guess Steve at Southern Appeal is right: the ACLU does defend the rights of "all other deviants."

JOHN MCCAIN ROCKS

From Ben Domenech comes this quote from John McCain:

"Get on the damn elevator! Fly on the damn plane! Calculate the odds of being harmed by a terrorist! It's still about as likely as being swept out to sea by a tidal wave!"

"Suck it up, for crying out loud. You're almost certainly going to be okay. And in the unlikely event you're not, do you really want to spend your last days cowering behind plastic sheets and duct tape?"

The original is here.

I'm glad that Ben hasn't drawn the conclusion that Senator McCain isn't taking the terrorist threat seriously enough or some such silliness.

THE SERIOUS QUESTION: UNCERTAINTY

Compare.

First, from Larry Solum's paper, "The Aretaic Turn in Constitutional Theory," available here.

In the end, agreement and disagreement about what rules mean and how they are applied are rooted in practical judgments. Even with respect to some easy cases and more frequently with respect to complex cases, articulated reasons will not suffice to explain why, in cases of bottom-line disagreement about the application of a rule to the facts, one judgment is legally correct and competing judgments are not.

Indeed, a virtue-centered account allows us to appreciate the fact that explanations or justifications of legal decisions play more than one role. In some cases, when a judge explains a decision, the intention is to lay bare the premises and reasoning that moved the judge from accepted premises about the law and the facts to some conclusion about what result is legally correct. There are other cases, however, where explanations play a different role. When the decision of a case is based on legal vision or situation sense—that is, when the decision is based on the virtue of judicial wisdom of phronesis—then the point of an explanation is to enable others to come to see the relevant features of the case. Such explanations do not recreate a decision procedure; rather, they are aimed at enabling others to acquire practical wisdom. (36)

Second, from Lief Carter and Thomas Burke, Reason in Law (6th ed.):

[There is] a basic disjunction between the way the world works and what we seek in legal opinions. In the world there are no right answers to legal questions. The world is filled with disputed facts, ambiguous words and old precedents that must be applied to new circumstances. Moreover, the world is tragic because it often pulls us in two inconsistent but equally good directions at once – toward on the one hand recognizing the freedom of the Boy Scouts to act as they wish, but on the other hand toward the right of gays and lesbians to be treated with dignity and respect. We know this about the world, yet we require judges to smooth out the edges, to make the world somehow fit. The job of judges. . .is to make the uncertain seem certain. (155)

WALDHEIM

I've been meaning to link to this post on head scarves in France by Jacob Remes for a while. He reports on some discussions he's had with a French relative and her friends, and then compares the current French attempts to ban traditional religious symbols (especially muslim symbols) from the public sphere with the attempts made in the U.S. in the early 20th century to "Americanize" immigrants from southern and eastern europe. I'm still a bit shell-shocked from teaching U.S. free exercise cases again in my civil liberties class, and thinking about the California Supreme Court's Catholic Charities decision (see here, here and here), so I have to admit that my ideas are in flux here. I still believe that one of the basic categories for analyzing these kinds of conflicts has to be "power," or, more particularly, the multiple consequences of a lack of power. In that respect, I have sympathies with an approach that carves out exceptions from generally applicable laws for religious and cultural minorities. But I also think that there are certain kinds of goods that government has an interest in promoting among its citizens, and these goods sometimes are rejected for religious reasons; the Amish didn't want to send their kids to school but the state of Wisconsin did, partly because the state believed, apparently, that individual citizens need to have the ability to reject their particular religious subcultures, and that ability is contingent upon having skills that are available (theoretically) in public school. The French state takes an even more aggressive stance: individual citizens must be able to strip down to a kind of secular essence whenever they enter the public sphere. Both Wisconsin and Paris are exercising power to the disadvantage of minorities, but both also make claims that there are certain kinds of political boundaries on the ability of religious and cultural groups to form citizens. Is secular citizenship in the public sphere a good that I think that the French state should enforce? I don't know. For now, I'm going to flee into the realm of "the facts" and say that I'd need to know more about both situations to decide where my sympathies lie.

On another note, Jacob also posts on the relationship between Swiss banks and the holocaust, and this is a good time to remind readers to check out Duerrenmatt, my favorite 20th centurty German-language dramatist. See my post on Duerrenmatt and Pahlanuik here.

TEXAS TAKINGS BBQ II

Tim Sandefur responds to my previous post (and also has a long post that I agree with at least to this extent, that the word "activism" is meaningless). He argues that Lochner is a "bogeyman" in the area of takings, but that's not quite right; it's more like a bogey-uncle, or bogey-dad, at least when we're discussing the "substantially advanced" test from Agins, since that test is an import from due process into takings. I facilitated a bit of a misunderstanding here by combining my doubts about judicial inquiry into "purpose" with the more narrow critique on the importation of due process standards that folks affiliated with GELPI have been advancing.

The narrow point still stands. Surely Tim would admit that there is a difference between jurisdiction stripping (which he takes me to me advocating, I think; my mistake in giving him that impression!), rational basis review, and the heightened standard of review that some courts have taken Agins to require or allow in takings cases. I don't have an opinion on "categorical rules" versus balancing tests; much depends on the content of the rules and on who is applying them. Tim's proposed categorical rule doesn't help clarify things very much ("a categorical rule of compensation for every taking of property for a public use"), since it's just a restatement of the Takings Clause itself. This is a testimony to Tim's belief that he is advancing the one true account of the Takings Clause, which is fine, but it's not much help for those of us who suspect that there is a lot lurking underneath the word "taking" when they read it on Tim's blog.

On another note, reader Archie calls attention to "The Takings Clause as a Comparative Right" by John E. Yee, 76 Southern California Law Review 1003 (076501.DOC), which he found via Larry Solum. I haven't read the article yet but may have something to say about it later.

TAKINGS IN TEXAS

Got an e-mail from the kind folks at GELPI calling attention to a takings case out of the Supreme Court of Texas in which the court rejected takings challenges against a development moratorium and a rezoning plan. The case is Sheffield Development Company v. City of Glenn Heights, and you can read the opinion here (PDF file) or here (html file with some translation problems). Developer-friendly folks like Tim Sandefur shouldn't be too upset about the opinion in one sense, though: even if the court sided with the city, it still preserved its authority to second-guess the aims of local zoning ordinances under the "substantially advanced" test from Agins. The folks at GELPI think that the "substantially advanced" test is an invitation to Lochner-style judicial activism and really doesn't belong in takings law at all (it comes from the due process area).

I think that GELPI's argument makes sense, although -- admittedly -- I'm not an expert in this area of law. It's not clear to me why judges looking at the takings clause (rather than the due process clause) should be concerned about the purposes of government action. The power to take property is not clearly restricted by the takings clause, only the ability of government to get away with effecting a "taking" for free. At the very least I hope that folks who worry about "judicial activism" don't think that judges should be in the business of awarding six- and seven-figure damages to developers because they (the judges) don't think that the government action accords with their view of the proper aims of land-use planning.

MORE: see the post immediately above for clarification. I am not affiliated with GELPI so any views expressed here are purely my own; this post conflates the two, I think, and I'm sorry about that!

POE

The Supreme Court of the Philippines decision last week means that the movie star -- and friend of deposed president Joseph Estrada -- Fernando Poe can run for president. The case turned on the meaning of "natural-born citizen"; only natural-born citizens are constitutionally eligible to run for president, and Fernando Poe's citizenship was in question, since he is the illegitimate child of an American mother and a Spanish national whose status as a Philippines citizen is in doubt. The decision is interesting because it admits some doubt about Poe's citizenship but still ruled in his favor. See here (via law.com). The majority opinion written by Justice Vitug is here.

The Sassy Lawyer calls this a "political" decision. See here. Dean Jorge Bocobo has a series of posts on this issue, including this discussion of the meaning of "natural-born citizen," and this post entitled "Did the palace get what it wanted out of FPJ Disqualification Move?"