Thursday, August 26, 2010

On Judicial Review and the Role of the Executive and Legislature in Interpreting the Constitution

This morning, George Skelton, noted political columnist and author of "Capitol Journal" in the Los Angeles Times, wrote a column titled "Brown and Schwarzenegger don't have to defend Prop. 8 — but they should." Skelton voted against Proposition 8, which banned gay marriage in California, but believes that the courts should decide its constitutionality. It is possible, although probably unlikely, that if neither the Governor nor Attorney General represents the majority of voters who supported Proposition 8 in the courts, then no one will have standing to defend that position and the courts will not address the merits. Hence, Skelton's view that the Governor or Attorney General should defend Proposition 8 in the courts so that the democratic process is preserved.

Skelton's column may be found at,0,6981919.column?page=1&track=rss.

I respectfully disagree with Skelton's premise, I think he has made debatable assumptions about the court's power of judicial review and mistakenly dismissed the role of the executive and legislature in interpreting the Constitution, and I therefore wrote him the following email:

Dear George,

I was a bit surprised by your column in today’s (Aug 26, 2010) Los Angeles Times that Brown and Schwarzenegger should defend Proposition 8 in the courts so that the courts have the opportunity to exercise judicial review.

My surprise is that you so casually accept, indeed proclaim, that judicial review is central to American democracy. You wrote: “Voters and legislatures sometimes pass laws that are unconstitutional. Courts were created, in part, to weed out those flawed acts.”

According to whom, George?

Not according to many of our most notable Founding Fathers. But, yes, according to Chief Justice John Marshall in his perhaps most famous Supreme Court decision, Marbury v. Madison.

Given your considerable knowledge, and I say that with the utmost respect, I am confident you are familiar with the history of judicial review, including the strong criticisms of any such concept by Thomas Jefferson, among others. The power of judicial review is not expressly found in the U.S. Constitution and the argument for it, that the Constitution is but another law (the Supreme Law) that courts are to naturally “interpret,” is highly questionable. Indeed, many devoted democrats (with a small “d”) have considered it a very undemocratic institution that robs the legislature of its rightful place. They hold that courts should indeed interpret laws but that the Supreme Law of the Land is not simply another statute but, rather, the founding political document that separates power among the three branches and does not give the Supreme Court the last word.

Also questionable is that the American President and Congress or, in the case of states, Governors and Legislatures, are without power and legitimacy to decide themselves whether a particular statute or other governmental action crosses the line and violates the Constitution. I know you concede that Brown and Schwarzenegger may decide not to defend Proposition 8 without violating the law, but the premise of your article is that this is in no way their appropriate role, only the courts may act to interpret the laws and the Constitution (federal or state). While extreme hypotheticals are not always “fair game,” were the people of California to outlaw marriage across ethnic or racial lines, would you take the same position, that the Governor and/or Attorney General should defend such an amendment in the courts? What of Proposition 14 from the 1960’s, nullifying the Rumford Fair Housing Act, which was held unconstitutional by the California Supreme Court and affirmed by the U.S. Supreme Court? According to Wikipedia (to be sure not always a reliable source), Governor Pat Brown supported the challenge to its constitutionality. Was that the wrong thing for him to have done, in your view?

It is true that judicial review has become part of the American political system and that criticisms of it which occasionally emerged in the 19th century have all but disappeared, except when hypocritical conservatives argue against what they call judicial activism or loose constructionism, all the while applauding judicial activism when engaged in by their own. But that doesn’t mean we should overlook the serious questions about judicial review that have been raised from the outset and its implications both for our democracy and the concept of separation of powers.

I’m not personally against the concept of judicial review perhaps because I grew up in the shadow of the Warren court with its use of judicial review to protect the individual and the minority against the potential (or actual) tyranny of the majority. But had I grown up in the era of Dred Scott or the conservative court of the early 20th century that ruled many state police power statutes unconstitutional, my view might be very different!

As always I appreciate your reflections even when I disagree with them. Thanks for your thoughtful commentaries. I also know that you’re a busy man who likely receives numerous emails so, if you made it to the end of this email, I thank you very much!!

Donald A. Newman

Sunday, August 15, 2010

Am I Asking For Too Much?

What really annoys me about all the talk about the mosque near Ground Zero is the amount of attention, energy, emotion and derision this issue has generated. For heaven’s sake – unemployment remains around 10%, natural calamities such as earthquakes, landslides, forest fires and the like are happening all over this Earth, Pakistan is becoming a very dangerous nation-state (not that it hasn’t been for decades), the war in Afghanistan is going poorly because Afghanistan is Afghanistan, America seems incapable of truly controlling its borders, keeping illegal immigrants out and inducing employers only to hire individually lawfully in this country, America’s hegemony is on the wane, and here we’re in another cat fight, dog fight or firefight, whatever you wish to call it, over the building of a mosque as part of a cultural center in lower Manhattan close to Ground Zero.

Yes, I remain a Democrat and from where I sit this looks like another attempt by the opposition, call them Republicans, conservatives, Tea Party members or the like, to turn attention away from these real issues and focus on a so-called hot-button issue, something that isn’t that significant but gets peoples’ juices flowing. And, yes, because critics are appealing to emotions, Democratic politicians have also felt the heat and run for political cover.

This is not a situation akin to Nazis wanting to march in Skokie, Illinois, when Voltaire’s words were applicable: I do not agree with what you have to say, but I'll defend to the death your right to say it. I’m sorry but no one has proffered evidence that those wanting to build the mosque and the cultural center are radical or fundamentalist Moslems bent on undermining the American way of life. Were there such evidence, or if it surfaces going forward, my view would be different. Would we so quickly condemn other groups in American society — Irish, Jews, Italians, Mormons, Greeks, Puerto Ricans — were they to step forward with a project to be built close to a horrific scene of murder, mayhem or other notoriety committed by individuals belonging to any of those groups but condemned by the group even had the misdeeds been done in the name of the group? Probably not.

I used to love politics even with all its contentiousness. But it truly has become a blood sport. Our last three presidents, Clinton, Bush and Obama, have hardly settled into office before their very legitimacy has been called into question. With Clinton it had to do with his draft status, smoking pot, then Whitewater and Lewinsky. With Bush it started with his election but then turned to Iraq and his Vice President. With Obama it started with race, morphed into his place of birth, and now touches everything he does, says or doesn’t do or say.

Instead of truly grappling with the American economy in order to keep it strong and vibrant in the face of stiff competition from China and the rest of Asia, solving the illegal immigration problem through resolute action, addressing healthcare and the needs of all Americans, being honest and serious about global warming, creating a realistic energy policy that weans America from fossil fuels, we spend our time on petty issues, personal attacks, and the like, and by “we” I not only mean our political leaders, such as they are, but the rest of us as well.

I am not preaching for false unity. There is not only room for healthy debate, there is a necessity for it. How do we seek “to grow” the economy (a phrase I detest for its grammar or syntax)? Would we have been far worse off without the stimulus or has mounting federal debt undermined economic recovery, and where do we go from here? How do we effectuate a successful immigrant policy? Should corporations be able to contribute to political campaigns as if they were individuals with First Amendment rights? Does the constitutional right to bear arms prevent localities from limiting the spread of handguns? Is Afghanistan a war America simply cannot win and does that mean a return of the Taliban and suppression of women?

We need partisan debate on these and other issues, but with civility, mutual respect, and an intent by all to try to reach solutions, usually through compromise. Is that asking for too much?

Saturday, August 14, 2010

On Obama and the Mosque near Ground Zero

What choices did President Barack Obama have with respect to the proposal to build a mosque as part of a cultural center very close to Ground Zero?

As I see it, his choices were the following:

1. Continue to remain silent on the entire issue.

2. Endorse the proposal to build the mosque.

3. Speak out in favor of the right to build a mosque where permitted by law but make clear that he was not taking any position on whether this mosque should be built where proposed.

4. Speak out in favor of the right to build a mosque where permitted by law but indicate that it was unfortunate that advocates sought to build it so close to Ground Zero, hallowed ground, and discourage them from doing so.

5. Condemn the project.

I’m sure there were other choices, or permutations and combinations on the five above, that I have overlooked.

It appears that President Obama sought to follow the third option, speaking out forcefully for religious freedom while at the same time not endorsing the specific proposal to build a mosque very close to Ground Zero. But, whether to avoid appearing overly equivocal or because of the nature of the dinner where he made his statement (a dinner breaking the fast during Ramadan), he did not clearly state that he was endorsing the right to build where permitted by law but distancing himself from the specific proposal to build so close to Ground Zero.

On Friday, at the dinner breaking the fast, Obama stated: ““As a citizen, and as president, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances.”

Today in Florida, the President sought to “clarify” his remarks, by stating: ““I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there. I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about.”

I think President Obama took a slight step back today and was not merely repeating what he had said on Friday. At the dinner, he began by noting the sensitivities surrounding the rebuilding of lower Manhattan, the trauma of 9/11, and he specifically acknowledged that the pain and suffering of those who had lost loved ones on 9/11 was unimaginable. He then said, “But let me be clear,” and then spoke of his belief as a citizen and as president, as noted above. Had he intended on Friday night only to have asserted the right of Moslems to freely exercise their religious freedom in America and to build anywhere permitted by law but at the same time to make clear that he was not endorsing this project and perhaps even discouraging it, he surely would have chosen a different way to say it. By the same token, I do not believe that he was intending to endorse the project in his remarks at the Ramadan dinner.

Having said that, I don’t know that there was any easy way out here. TIME magazine, in commenting on Obama’s initial statement, noted that he had previously taken a strong stand on telling Americans what they needed to hear rather than telling them what they wanted to hear. TIME then noted in an update, referring to Obama’s remarks today in Florida, that perhaps he was backtracking and retreating from telling Americans what they need to hear.

I applaud President Obama, and Mayor Michael Bloomberg, for taking the positions they have on this mosque project. Would they have preferred that the issue had never arisen? Sure. As would the Jewish Anti-Defamation League, which twisted and turned to come out against the project. I too would have preferred that the issue not have arisen. But it did and the evidence does not seem to support any notion that those who have advanced this project are anti-American Moslems intent upon harming the country. Given the circumstances, I believe that the President and the Mayor have taken the right positions. I even think that forty years from now, as cultural, religious and ethnic diversity in America continues to increase, whether some like it or not, the presence of that mosque and cultural center may be positive evidence of this nation’s strength through its diversity. E pluribus unum.