Category: Politics


Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More


Rather v. CBS Contracts Story Omitted from Redford’s “Truth”

Robert Redford’s latest film, Truth, dramatizes the last stand of newsman Dan Rather, longtime face of CBS News until fired for a controversial 2004 broadcast about President George W. Bush. The film, which debuted this week at the Hamptons Film Festival in Long Island, New York and opens October 16, is based on the book by Rather’s producer, Mary Mapes, and is therefore biased.  It is nevertheless a rich story, with Redford playing Rather and Cate Blanchett portraying Mapes (all pictured nearby).  The true story culminated, moreover, in a fight between Rather and CBS about contract interpretation, although neither the book nor the film delves into this important topic.

Amid a heated 2004 presidential election, on a CBS 60 Minutes broadcast of September 8, 2004, Rather questioned President Bush’s service in the Texas Air National Guard during the Vietnam era. Rather implied that Bush exerted political influence to avoid that era’s military draft by entering the Guard, and then receiving special treatment to skip military duties. A media melee followed Rather’s show. Bush supporters challenged its accuracy, the authenticity of documents used, and Rather’s journalistic integrity, which many believed was compromised by bias against President Bush.

After investigation, CBS disavowed the broadcast and, two weeks later, an emotional Rather apologized for it on national television. But CBS and Rather disagreed on the overall journalistic quality of the broadcast and what to do about it. Rather identified important accurate facts in the broadcast, obscured by the firestorm, and urged a defense of those whose reputations, including his and Mapes, the broadcast imperiled.

For its part, CBS emphasized the journalistic lapses and wanted to let it go at that. Believing CBS was most interested in the politics of good relations with the White House, as Bush was running for reelection in a heated contest against Senator John Kerry, Rather retracted his apology and claimed CBS fraudulently induced it. The day after President Bush won reelection, CBS told Rather it planned to remove him from his coveted spot as anchor of the CBS Evening News—a stinging rebuke. Rather’s last broadcast as anchor was March 9, 2005.

During the next 15 months, through May 2006, CBS kept Rather on its payroll, paying his salary of about $125,000 per week ($6 million annually). CBS gave him irregular appearances on CBS programs covering less significant stories, and his former television profile diminished. He rarely appeared on the network’s big-time shows such as 60 Minutes. Worse, CBS prevented him from pursuing jobs with competing networks or other media. Rather claimed that CBS marginalized him by giving him limited staff and editorial support; rejected most of his story proposals and aired those it accepted at off-peak times; denied him the chance to appear as a guest on other programs; and generally prevented him from refurbishing his reputation. Read More


FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

Screen Shot 2015-04-19 at 10.46.47 PM

This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. — Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”


Tribute: A Liberal in the House of Harry Jaffa (1918-2015)

Harry Jaffa (credit: Ohio State University)

Harry Jaffa (credit: Ohio State University)

1-14-15: 1:03 a.m. My mind races. How does one pay tribute to someone with whom one disagreed on several important issues? – issues about life and law and other things that matter. That question confronts me as I sit down to pay tribute to Harry Jaffa, someone who taught me much and always treated me kindly.

It’s rather late. I page through my tattered copy of Crisis of the House Divided: An Interpretation of the Lincoln Douglas Debates (1959). I first read it in 1968 or thereabouts. It’s by Harry V. Jaffa, the noted conservative political philosopher. He died recently. I found out by way of a New York Times obit by Robert McFadden. (Jaffa died on the same day as Walter Berns, another political theorist.)

I stare at the black-and-white pic of the young Jaffa taken years before I met him. I peer into his distant eyes. What was he thinking at that moment in 1959 / in that bookstore / next to his newly released book / finely clad / grinning confidently / with a book of the poet C.C. Cummings lingering behind his left shoulder?

* *  * *

“Since the first and most successful enterprise of the Fathers was to produce disobedience to an ancient established order, it would have been peculiarly difficult for them to inculcate reverence.”

Screen Shot 2015-01-14 at 3.35.05 AMI marked that passage – one from a chapter titled “The Teaching Concerning Political Moderation.” It is one of many such markings.

I think more and more about Professor Jaffa as I glance at the row of books in my library bearing his name. Formally speaking, I never studied under him, though I did know him. We met in the 1970s at Claremont College where he taught with the noted constitutional historian Leonard W. Levy (1923-2006). I read Levy’s books, too, though I was never one of his students. But I knew both men rather well. Levy was quite liberal (my stripes), Jaffa was quite conservative. Both strong personality types and both friends (as far as I know).

The Students of Strauss

When I first encountered Professor Jaffa, the philosopher Leo Strauss had recently visited Claremont. Back in those days Jaffa was friendly with many of his colleagues who, like him, had been students of Strauss. There was, for example, Martin Diamond and Allan Bloom. Of them he wrote this in his Crisis book: “I owe much to the enthusiastic interest of Professors Allan Bloom . . . and Martin Diamond . . . .”

That was in the days before the name “Strauss” became politicized. It was also before Jaffa parted company (sometimes fiercely) with so many of his former friends and colleagues, including Diamond and Bloom. There was still peace in that valley, that intellectual oasis where so many young students like myself came to learn how to read and appreciate the great works of Western political thought.

I studied under other students of Strauss (Michael Ormond and Thomas S. Schrock) and thereby came to read many works by the famed University of Chicago scholar – works such as Strauss’ Persecution and the Art of Writing (1952), Natural Right and History (1953), On Tyranny (1963), and The City and Man (1964), among other books.

photoOf course, one of the mainstays of my liberal education back then was History of Political Philosophy (1963), a collection of thoughtful and carefully crafted essays on noted political philosophers from Plato to Dewey. Strauss and Joseph Cropsey edited the volume. There was a long essay in it on Aristotle written by Jaffa (removed in the 3rd edition at H.J.’s insistence, I believe). I studied that essay and learned much from it, so much that I set out to read more by him. In time I came to Crisis of the House Divided, which I spent many an hour savoring . . . but never as required reading.

Somehow I came to meet Professor Jaffa personally, though I do not quite remember how. By 1974 I knew him well enough to solicit something from him to publish in my law school’s law review. It was titled “Equality as a Conservative Principle,” 8 Loyola, Los Angeles, Law Review 471 (1975), reprinted in Jaffa’s How to Think About the American Revolution (1978).

Our Dialogues

In the years and decades that followed, from time to time I visited Professor Jaffa at his home with his wife Marjorie. They were routinely gracious. The talk: almost always about Plato or Aristotle or Machiavelli or Hobbes or De Tocqueville or Lincoln or Churchill or Strauss or the Declaration or the Constitution. I steered away from partisan politics. Why? Well, because what I admired about him, what was most important to me, were his talents as a teacher, someone who had carefully studied the great thinkers and was committed to teaching others how to appreciate their words and thoughts. Ideas mattered more to me than ideologies, so I veered away from Republican-Democrat talk, though I listened nonetheless when Jaffa ventured off into those worlds. Sometimes even that talk gave me pause, made me rethink a few of my own views. Then again, sometimes not.

If you would know the Harry Jaffa I knew as a mentor and a friend, read his Crisis or his Thomism and Aristotelianism: A Study of the Commentary by Thomas Aquinas on the Nicomachean Ethics (1952) or his book with Allan Bloom, Shakespeare’s Politics (1964), or his essay “The Case for a Stronger National Government,” in A Nation of States: Essays on the American Federal System (1963) edited by Robert A. Goldwin.  There is, to be sure, more, but I will lay my cards there.

∇ ∇ ∇

In these ideologically torn and tormenting times, it is ever more difficult to be objective and open-minded. Friends flee. Few wish to be Socratic, open-minded, and receptive to reconsidering their gospels. Such one-directional thinking wars with the basic tenets of philosophy, properly understood. But if the ideal of liberal education still means something, and if our commitment to being an open society still stands, then it is only just to be fair — even if it means cracking open the doors of our partisan minds enough to see what we would not otherwise see. There is, after all, no truth in blind denial.

I hope I have answered the question with which I began. However that may be, kindly permit me to close with a few words by Leo Strauss, from his Liberalism: Ancient & Modern (1968):

“Liberal education, which consists in the constant intercourse with the greatest minds, is a training in the highest form of modesty, not to say of humility.”



The 100 Year Bloom?: Wealth Inequality in the U.S.

The debates around Piketty’s analysis of wealth gaps will persist, but a recent paper by Emmanuel Saez (U.C. Berkeley) and Gabriel Zucman (London School of Economics) indicates that wealth disparity in the U.S. has hit the levels of about 100 years ago. As the Economist Espresso edition reports, the study finds that “In the late 1920s the bottom 90% held just 16% of America’s wealth; the top 0.1% had a quarter.” From the Depression until “well after” World War II, the middle class share went up. Since the go-go 1980s that tide reversed and now “The top 0.1% (160,000 families worth $73m on average) hold 22% of America’s wealth, just shy of the 1929 peak—and almost the same share as the bottom 90% of the population.” (The Economist link has a nice chart from the paper. The chart captures the trend well. I was unable to get the image from the paper, however.).

I have to wonder whether the intersection of wealth disparity, race and police tensions, health security, job prospects, lack of food, and perhaps other factors explain what seem to be larger examples of unrest and revolutionary impulses from all ranges of political interests all around the world. And, the general sense of rejecting all institutions (a millennial impulse if lack of joining a party is a signal) can still lead to the short term alliance of enough people to cause revolution (their cause is change and rage and unleashed energy against the unjust), the aftermath of which is rarely bloodless. Once the common enemy goes, the energies of the one truth turn on each other. The show Survivor is much more real: eliminate those who are strong and helped you win, for they may threaten your vision. In other words, I sense much anger out there (and it may be founded) on many fronts. I see lex talionis (eye for an eye), but that is not justice. The law is supposed to mediate our impulse to revenge, and yet the law lies behind the changing tides of wealth. The unarticulated sense of injustice and disenfranchisement can eat the system from the inside. And even those gaining the biggest benefit right now will not see that the bottom is falling out from under them.

Not all 100 year blooms are pretty or benign. Reorganizing a country or the world so that baseline well-being goes up and is shared by most, if not all, seems like a blip in historical terms (I am trying to think of an extended era, more than 100 years, when wealth disparity was not high). But it may be that if we don’t start to fix these problems, the desire for those blips will become real and travel with high costs: depressions, starvations, revolutions, and wars.

It may not take much to prevent the fall. Who knows? Maybe the Jam’s That’s Entertainment captures an odd, sad, equilibrium that barely satisfies.

Waking up at 6 A.M. on a cool warm morning
Opening the windows and breathing in petrol
An amateur band rehearsing in a nearby yard
Watching the telly and thinking ’bout your holidays

If that is gone, well…


F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.


Signing off

AFC-cover      Thanks to all for having me back to Concurring Opinions.  I’ve enjoyed the visit immensely.

During my stay, I blogged about the conception of my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).  I discussed ideas of constitutional formation and reorganization, alternative theories of popular consent, and certain black nationalists’ view of the Fourteenth Amendment (and even guns and self-defense).  I analyzed Cliven Bundy’s theory of rancher sovereignty, which is shared by many who rallied to his armed defense against the Bureau of Land Management (here and here).  I advocated the creation of a new national office, the Tribune of the People, whose sole responsibility would be defending civil and human rights. Finally, I discussed the Supreme Court’s recent decision on legislative prayer as an example of institutional withdrawal, as issues of prayer were thrown back to the hurly-burly of the public sphere.

News about America’s Forgotten Constitutions can be followed on my author’s page, book blog, facebook, or twitter.  On September 18, 2014, during the week celebrating the U.S. Constitution, I’ll be giving a noontime book talk and signing at the National Archives (more details later).  I hope to see you there.

I am working on a variety of other research projects, including books and papers exploring presidential leadership over individual rights, war-dependent forms of constitutional argumentation (to be published by Constitutional Commentary in the fall), and popular theories of law found in poetry and fiction (my latest, “‘Simple’ Takes On the Supreme Court” is hot off the press).  My papers can be downloaded here.

So long!


Podcasts on America’s Forgotten Constitutions

For those who might be interested, I recently did two podcast interviews on my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).

The Electric Politics interview is more far-ranging and can be found here.

The ConSource interview delves more deeply into the book itself, especially the settlers who broke away from New Hampshire to establish the Republic of Indian Stream, the nineteenth-century socialist constitution written by Icarians (and blessed by the State of Illinois), and John Brown’s armed efforts to refound the Republic.  We also talk a bit about archival work.  Go here.


Town of Greece v. Galloway and Institutional Withdrawal

Every so often, the Supreme Court seems to be doing something other than clarifying the principles of constitutional law to guide the resolution of future cases.  Instead, it may be doing little more than sketching the terms for institutional withdrawal from a field of social action.

Yesterday’s decision in Town of Greece v. Galloway, which allowed a town supervisor to pick someone to solemnize town meetings even though it is highly likely such statements will turn out to be sectarian, bears all the hallmarks of a hasty retreat.  First, there is the monumental move of describing the chosen prayer-givers as private speakers, subduing Establishment Clause objections by resorting to free speech ideas (I will note that Free Exercise language is sprinkled liberally throughout the opinion, but no one seriously claimed that one must have a right to speak at government functions in order to worship in a meaningful way).  Recall that when public school officials tried the private speech argument in the school prayer (Lee v. Weisman) and football prayer (Santa Fe Indep. Sch. Dist. v. Doe) cases, the Justices rejected it out of hand.  Now, the Court likes the argument in a prayer case. The main difference cited is that those cases involved children and this one involves adults, but fear of coercing children should hardly extinguish the objections of adults, who might very well need to be present for the people’s business.  We are quickly informed that adults in the religious minority must buck up (more on this in a moment).

Second, as some commentators have observed, the ruling gives very little by way of guidance to judges who must determine when the Establishment Clause has been transgressed (and when the Speech Clause has not).  It appears that the Court may be giving up on the idea that sectarian expressions must be guarded against, once you have an honest to goodness public forum. Even if a citizen isn’t forced to attend town meetings, does she have a right to be free from offensive prayer at court proceedings and other government-sponsored events?  Is the Court really going to start drawing fine lines between government settings (apart from schools), identifying ones that present an inherent risk of improper proselytizing?  Doubtful.

Third, if the answers to these questions are: probably not, then the Court may simply be giving the appearance of leaving serious questions open for litigation, but in fact be effectively insulating a certain kind of religious politics, i.e., over prayer, from judicial review.  Once the state creates a public forum, we are told it can’t censor the content of the expression that follows to ensure it is “generic or nonsectarian.”  Doing so would interfere with the invisible hand that governs the marketplace of ideas and often now trumps Establishment Clause concerns.

Since at least the Warren Court, legal liberals have believed that an alert judiciary policing the religious sphere helps keep the peace.  But conservatives learned a very different lesson over the years.  After decades of organizing against the mythical wall of separation between church and state, conservatives–and the jurists that represent their views–have arrived at the conviction that judicial involvement has marginalized people of faith and silenced them, while rendering the courts politically vulnerable.  The resolution in Town of Greece is best understood in this light of backlash politics and institutional withdrawal.

Prayer has been the single most visible issue, both real and symbolic, contributing to conservative counter-mobilization.  So if Engele v. Vitale represented the high point of judicial involvement in religious matters, and if Lee v. Weisman and Santa Fe Indep. Sch. Dist. v. Doe were holding pattern cases, Town of Greece finally absorbs and unleashes those political lessons with a vengeance. It does so by returning prayer issues back to the rough and tumble of ordinary politics. Outside of the school context, it seems that much is permissible by way of “ceremonial prayer” (but why leave it at “ceremonial” prayer?).  Justice Kennedy’s opinion tells us as much.  First, religious minorities who do not hear their religious leaders at government events are told to toughen up, for “[a]dults often encounter speech they find disagreeable.”  Once again, the resort to free speech rhetoric is undeniable: religious objectors are treated like hecklers who should not be given a veto over the religious majority.  An objector’s remedy is one of self-help, just like anyone who is confronted by objectionable speech on the streets: to remain and try to ignore the offending religious speech or leave the gathering.  Justice Kennedy suggests, in a hopeful way, that no one will think any less of you either way.  If you exit, your “absence will not stand out as disrespectful or even noteworthy.” Staying won’t be “interpreted as an agreement with the words or ideas expressed.”

Second, citizens are explicitly warned not to run to court and make too much out of single invocations that go too far.  This is more language seeking to insulate prayer from further litigation.  A judicial remedy might be available only if a litigant demonstrates “a pattern and practice” of ceremonial prayer being used to “coerce or intimidate others.” It might be a problem if government officials directed audience members to pray, or “singled out dissenters for opprobrium,” or allocated “benefits and burdens” on the basis of participation in prayer. In “the general course,” however, mere exposure to unwanted or insulting religious ideas would not make out an Establishment Clause violation.

Will blurring the rules in an attempt to get the courts out of prayer disputes work to reduce religious strife?  I’m not as confident as Justice Kennedy that reduced judicial attention to government-organized prayer will diminish antagonistic politics. At best, it may displace conflict from the courts to local communities and disperse conflict regionally.  In fact, it may very well intensify the activity of legal liberals.  For one thing, we will now see redoubled efforts by religious minorities and nonbelievers to test whether these “public forums” springing up truly are open to all faiths (or those with no faith at all), or are actually shams.  In other words, will the Muslim, the atheist, the devil worshipper, the Odinist, and the Wiccan really be permitted to solemnize town meetings?  If they are not, will their exclusion be done on a content-neutral basis?  The people of Greece really did bend over backwards, apparently never once turning someone down who wanted to solemnize a town meeting.  What happens when citizens decide that only a Christian solemnization is appropriate for the occasion?  Under limited public forum rules, the government is accorded some leeway to determine the purpose of the forum; on the other hand, viewpoint discrimination presumably can still be a problem.

Second, we will surely experience a resurgence of prayers at legal proceedings and other government-sponsored events.  Those situations, too, will continue to be tested in the courts. The re-writing of doctrinal rules (what happened to the endorsement test?) incentivizes further government-religion partnerships through creative use of the public forum doctrine.  A public forum need no longer be a physical space in the traditional sense, but could be a metaphorical pot of money or now, a moment in the agenda when one might speak or pray.  Each time this strategy is judicially approved, it removes the state from constitutional responsibility over the religious activity that subsequently occurs.  At some point, this strategy of recharacterizing Establishment Clause issues as simple Speech issues must reach a logical limit.  Just not yet.

Will clashes over prayer become more intense or less so?  Will there be fewer religion cases in the courts?  Time will tell.  But one thing is apparent: the Supreme Court no longer wishes to be blamed for taking God out of the public square.


Tribune of the People

bostonglobe-504oped_tsaiCLRYesterday, the Boston Globe published my piece proposing the creation of a new national office dedicated to the protection of civil and human rights. I wanted to give a little more context to the idea here, beyond what the op-ed format allowed.

The basic idea is that we need a single national figure to instantiate rights and defend them consistently. For a variety of reasons, our existing political-legal structure fails to do this robustly and consistently. Enforcement of civil and human rights is fractured among multiple bodies with narrow mandates (U.S. Department of Justice, U.S. Commission on Civil Rights), all of which are captured by party politics. Those in the trenches know how much a general commitment to rights, along with which rights to promote, can vary wildly depending on which party controls the White House. Amicus briefs offer only an ad hoc solution, because such writings are driven by interest group concerns, which can be quite distorting, and don’t carry the kind of institutional weight that government briefs do (if they are read at all by judges, as opposed to their clerks). All of these factors reinforce the idiosyncratic way in which relevant law, including international and comparative law, is presented to jurists.

Historically, presidential agendas have at times aligned with the goal of promoting civil or human rights. But case study after case study underscores how challenging this can be. The bureaucratic politics, party dynamics, and reputational hurdles can be daunting to navigate for anyone who might want a president to take vigorous action on behalf of individual rights.

The idea I have proposed is adapted from one presented by a group of experts based at the University of Chicago in the immediate post-World War II period. At the time, the group–led by the visionary Robert Maynard Hutchins (Chancellor of the University of Chicago and former Dean of Yale Law School) and the fiery Giuseppe A. Borgese (professor of Italian literature)–hoped to inspire the creation of a world constitution. Many later found the overall project too utopian. But whatever one thinks of such strong internationalist proposals, the project allowed Americans to reflect deeply on what ailed American constitutional self-governnance.

Perhaps the most penetrating critique that emerged from the working group’s many meetings involved separation of powers. They believed Americans had become slavish followers of Montesquieu, by insisting that institutional functions had to be strictly distinguished in the name of ensuring political liberty. But strict separation was a disaster: American politics had been consumed by paralyzing party politics and bureaucratic dysfunction, utterly incapable of dealing with urgent problems. Members of the Chicago group turned separation of powers orthodoxy on its head by offering reforms that retained some measure of institutional distinctiveness, but also dramatically increased the overlap of functions.  For example, they thought it wise to give a president explicit constitutional authority to initiate legislation and to serve as Chief Justice of the Supreme Court.

These mid-century reformers felt comfortable injecting greater energy into government in part because they had a strong belief in rights. The Tribune of the People idea encapsulates that commitment, as it was intended to be an office charged with defending “the natural and civil rights of individuals and groups against violation or neglect” by government. The Chicago group tried to design an office that would “neither be a duplicate or retainer of the President in office, a Vice-President in disguise, nor his systematic heckler and rival.”  A Tribune should be “truly the spokesman for real minorities, not the exponent of a second party.”

In a sense, other countries heeded this call, while Americans have largely forgotten the conversation. Today, there are a number of analogues worth studying. Countries that have a national figure dedicated to the enforcement of rights include Albania, Argentina, Armenia, Azerbaijian, Bulgaria, Columbia, Costa Rica, Estonia, France, Guatemala, Norway, Peru, Poland, Portugal, and Serbia. Each of those countries has a Defender of Rights, Commissioner for Human Rights, or Chancellor of Justice. There exists a U.N. High Commissioner for Human Rights, who recently weighed in on Oklahoma’s bungled execution by lethal injection, but has no real power to influence rights development here.

So it seems it is well past the time to consider whether we are doing all that we can institutionally to protect civil and human rights.