Law and politics worldwide, etc.
I'm gone until Tuesday. Thanks to Henry at Crooked Timber, Secular Blasphemy, Right Side of the Rainbow, and my sparring, and sometime beer-drinking partner James at Outside the Beltway for the links this week.
Goal for next week -- no, make that a life goal, really: clean up my grammar and spelling. I used to know how to write. Really.
MORE: And a belated thanks to Tim Sandefur as well!
If it's the view of "crackpots" that TPA can't be sustained without some fancy (and presumably unconservative) constitutional theorizing, why isn't it also "crackpot" to argue that using the filibuster in the judicial nominations context violates the clear mandates of Article II, Section 2? Is it worse for the Senate to add a supermajority requirement -- with reference to the constitutionally granted power to set rules for the Senate's own proceedings -- or for it to renounce a supermajority requirement in the name of efficiency? (See also here)
The clear political answer is: both fast track and the criticism of the filibuster serve the aims of the "imperial presidency," and the current president in particular. Fair enough.
(For an earlier post of mine on this issue, see here. Just for the record: I think that both TPA and the filibuster are fine, constitutionally speaking, but I also don't have to defend a conservative constitutional theory.)
South Africa celebrates ten years of democracy with its third national elections tomorrow. The ANC is predicted to keep its hold on power (see here). For some key data on the elections, see here.
One of the important constitutional issues in the elections has been prisoners' voting rights. On March 3, the South African Constitutional Court ruled that a December 2003 law had unconstitutionally deprived some prisoners of their voting rights. See here and here. For the Court's ruling in the case, Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and others, see the full text of the decision here (PDF file). The majority opinion was written by Chief Justice Chaskalson and joined by seven other members of the Court, and Justices Madala and Ngcobo wrote separate opinions that dissent from most of the Court's holdings.
The opinions are complex, nuanced, and worth detailed study. The majority opinion's main argument is that the government has not provided enough justification for the exclusion -- the government relied primarily on cost considerations, but the provisions made for extending voting rights to other prisoners made such cost concerns unpersuasive in the eyes of the Court, or at least not persuasive enough given the significance of the rights at stake.
Both Justice Madala and Justice Ngcobo would countenance more restrictions on prisoners' voting rights than the rest of the Court. Like the Court majority, Justice Madala was not convinced by the government's argument that the costs and logistical difficulties involved in accomodating the prisoners in question justified the exclusion, but he argued that the majority had misunderstood the broader policy issues at stake:
The objectives of government in denying certain prisoners the right to vote are multi-pronged and must be treated holistically as an attempt by government to inculcate responsibility in a society which, for decades, suffered the ravages of apartheid; demeaning its citizens and creating irresponsible persons whose lives have become a protest. . . .In my view, the temporary removal of the vote and its restoration upon the release of the prisoner is salutary to the development and inculcation of a caring and responsible society. Even if the prisoner loses the chance to vote by a day, that will cause him or her to remember the day he or she could not exercise his or her right because of being on the wrong side of the law. (53-54)
In my view, the government has a legitimate purpose in pursuing a policy of denouncing crime and to promote a culture of the observance of civic duties and obligations.. . .
[A] limited limitation of the right to vote sends an unmistakable message to the prisoner. If you should be released and again commit a crime of a nature that attracts the prison sentence without the option of a fine, you will not vote in the next elections. That message is a necessary effort to fight crime. It is a reminder that the duties and responsibilities of a citizen also include an obligation to respect the rights of others and comply with the law. The convicted prisoners break the law in breach of their constitutional duty not to do so. (64-65)
The New Zealand National Party issued this press release on Ahmed Zaoui yesterday. For some background on Zaoui, an Algerian being held in New Zealand pending final decision on his refugee status, see here and here.
From "Frank Chavez wants Supreme Court debate on ads" (ABS-CBNNews):
Former solicitor general and senatorial candidate Francisco Chavez had asked the Supreme Court to start oral arguments on a suit he filed last week against the Commission on Elections (Comelec) ban against billboards of consumer products being endorsed by some poll candidates.. . .
Being questioned by Chavez is [whether] Section 32 of the Comelec Resolution 6520, which provides for the ban was unconstitutional because the Fair Elections Act has repealed provisions in earlier election laws banning the use of billboards for election purposes.
The Comelec in February ordered Chavez to comply with Section 32 of its Resolution 6520, or be presumed guilty of premature campaigning in violation of the Omnibus Election Code.
Chavez has four billboards endorsing a clothing line, plastic products line, and a games and amusement parlor.
PS: I think I found some homegrown examples of this kind of crossover. Here is Tom Delay in an ad for Yahoo! (or something), in an ad for some sort of new drug (like the drug ads on TV, the actual health benefits of the drug are left vague), and in a movie poster for a recently released horror flick, "The Gerrymander Monster from Tom Delay's Brain."
Ah, library book sales. Here's a gem of a passage from John N. Hazard, Communists and Their Law: A Search for the Common Core of the Legal Systems of the Marxian Socialist States (Chicago, 1969), from the chapter entitled "Torts within a Social Insurance Framework":
It is notoriously hard for an individual to prove negligence against a large enterprise, even when the judge is required, as he is in the Marxian legal systems, to be active in helping the parties present their claims. It can be presumed that the enterprise will have good counsel and, being master of its own house, can present all pertinent facts. Further, the obligation to prove innocence of fault can be expected to stimulate the safety engineers in an enterprise to devise appropriate measures of protection and to make sure that they are in accord with whatever standards may exist nationally and locally through published regulations and general practice. Finally, there is little reason to fear that placing the burden of proof on the defendant will multiply litigation brought by men skilled as plaintiff's attorneys and functioning on a contingent fee basis under which they are paid only if they win. These practices, found in some countries of the West, are absent in the USSR, where attorneys are under stricter discipline than abroad and where citizens are discouraged from harassing state enterprise without rather sure chance of winning. (390)
In case you didn't know: the hijab was a topic of public discussion in Switzerland in the 1990s. The full text of decisions from the Bundesgericht before 2000 is not easily available, however. Take a look also at this article from February in the NZZ on the likelihood of further debates on the topic. The Swiss courts have tended to rule against women who want to wear the hijab while performing official functions. In 1997, the Bundesgericht ruled that "religious neutrality" as well as respect for the rights of children and parents required a primary school teacher to refrain from wearing the hijab in the classroom. See here.
I didn't find the text of the decision, but I did find this page, which has links to selected texts of other significant european decisions concerning religious freedom. Caution: some of the links are broken.
The Indian Supreme Court is keeping alive the prosecutions related to the violence in Gujarat two years ago. See "Fresh trial for Gujarat riot case" (BBC) and "SC orders re-trial in Best Bakery case" (NDTV).
Oscar Peterson Plays the Cole Porter Songbook, for the princely sum of one U.S. dollar. Where, you might ask? At Oswego's library book sale. Check it out.
