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Tagged: constitution

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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The Military-Judiciary Nexus – Egypt and Beyond

The deputy president of Egypt’s Supreme Constitutional Court, Tahani el-Gebali, disclosed that she had advised Egypt’s ruling generals how not to cede authority to the first freely elected Parliament. The Court then issued a decision that opened the door for the military to resolve the elected body and to usurp the constitution drafting process.

The still-unfolding military-judiciary concert in Egypt to decline transfer of power to elected civilians has infamous precedence in other polities, particularly Pakistan.

In 1958, Pakistan’s Supreme Court upheld the validity of the country’s the first coup d’etat. The decision, drafted by Chief Justice Mohammad Munir, used Kelsen’s theory of revolutionary legality to hold that a successful revolution becomes a law-creating fact whose legality is judged not by the annulled constitution but its own success. This military regime lasted for eleven years. Twenty years later, Munir disclosed in his autobiography that he had advised the generals about how to abrogate the constitution and had helped draft the proclamation of martial law.

In 1977, Pakistan’s Supreme Court validated yet another coup d’etat as a “constitutional deviation dictated by necessity.” The Constitution, was held to be in place and the military regime was permitted to take only such actions that are permitted by the Constitution. When the decision was released in the customary printed form, there was a hand-written insertion by Chief Justice Anwar ul Haq giving the military regime the authority to amend the Constitution at will. This military regime, that inaugurated the “Islamization” of laws, lasted eleven years.

A few months earlier while this case was being heard, the military had removed Chief Justice Yaqub Ali, deemed not sympathetic to the coup-makers, and had appointed Justice Haq.

Note that all judges of Egypt’s Supreme Constitutional Court were appointed by the Mubarak regime. This military-judiciary nexus in Egypt does not bode well for hopes triggered by the Arab Spring as it unfolded in Tahrir Square last year.

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The Promise of Equality

On this past weekend, I thought about the words: “We hold these truths to be self-evident, that all men are created equal.” In 1776 those words were more powerful than we can even imagine. Equality was not the norm in politics and government. To declare such equality boldly and forthrightly was radical. Truly revolutionary.
The nation grew out of stated words of equality, yet it was profoundly unequal from its inception. We have been in a constant struggle to achieve equality ever since those first days of the nation.
The Declaration stated it to be self-evident that all men are created equal. But they may have meant Whites-only, and men only. Our nation was built on a slave economy. The founding document—the Constitution—accepted the premise of the inherent inequality of a race of people, and labeled them three-fifths persons. The Great Document—and consequently the nation—was founded on compromise, allowing for the slave states to continue engaging in the slave trade and enslaving Africans and African–Americans.
Still, there were bright spots. While voting was in large part restricted to White, literate, propertied, males, the franchise was still more universal than in other nations. While seemingly regressive today, it was progressive for the times. There was a sense among many that it is important to create a participatory democracy. Perhaps more importantly, there is a promise of equality in the structure of our government and its three co-equal, coordinate branches. The Framers created an inefficient structure, with each branch checking the other, but in doing so, the framers protected the people, in another nod toward equality.
But still, individual rights and equality were elusive.
The founding compromise was doomed from the start, and nearly a century after declaring independence, the nation found itself embroiled in a war against itself, fighting over its very soul. Physical force won out, but such force cannot change the hearts and minds of people.
The 13th, 14th and 15th Amendments to the Constitution affirmed the results of the Civil War and to enshrine some version of equality into the Constitution. Constitutional amendment was not enough, as Jim Crow laws ensued, and lynchings and other intimidation methods served to demoralize and dehumanize African-Americans and to deny the apparent constitutional promise of equality.
And the U.S. Supreme Court did not interpret the Constitution as providing relief for such matters, or even promoting equality, as seen in Plessy v. Ferguson in 1896. But I am talking about hope, in the midst of reality. The reality is that race remains our nation’s unresolved dilemma. And the hope is the promise of equality that has always been in our nation, in the Constitution, but has been slow to evolve fully.
That hope has been expressed in the Court’s Brown decision in 1954, in one-person, one-vote case law that ensured equality of participation in the electoral process, and in the numerous constitutional amendments that have expanded the right to vote. And ultimately, the tale of hope found expression in the election of the first African-American President. I don’t mean that in the political sense, but in the sense that our nation struggles, but slowly finds ways to make progress toward equality of opportunity. We have a long way to go, but as we strive to create a more perfect union, the constitutional promise of equality is there.