The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

Clinton,Congress, and Cuba Policy Between Two Codifications: The Changing Executive-Legislative Relationship in Foreign Policy Making

We examine the changing dynamics of institutional control over U.S. policy toward Cuba that have played out during the time between two codifications of Cuba policy: The 1996 Helms-Burton legislation that codified the long-standing embargo policy as law, and the 2000 bill that wrote travel restrictions into law. The study of who makes U.S. foreign policy has long been characterized by a debate over the respective roles of the president and Congress in this area, but-in theory, at least-Helms-Burton should have put an end to the scholarly debate about who makes Cuba policy: With codification, Congress does. But the practice of making Cuba policy has been more complicated than it might have first appeared in March 1996. We track the politics of Cuba policy between these two codifications and try to understand what they mean for who makes Cuba policy now, and speculate about what these dynamics may more generally mean.     

Herbert Brownell,Jr.: The “Hidden Hand”1 in the Selection of Earl Warren and the Government's Role in Brown v. Board of Education

There are, of course, many heroes behind the Supreme Court's most famous and, some would argue, most significant case of the 20^th Century: Brown v. Board of Education. ² Chief Justice Earl Warren wrote the decision and is credited with convincing the other Justices to make it unanimous. Thurgood Marshall and Robert L. Carter argued important aspects of the case for the NAACP and championed a legal strategy that brought it to the High Court. Few, however, would readily name Herbert Brownell, Jr. as one of the heroes. Yet, as Attorney General, Brownell was President Eisenhower's chief adviser on judicial appointments when he put Warren on the Court, and Brownell led the Justice Department in supporting the notion that segregation of public schools violated the Constitution.     

Exceptional Sovereignty? Guantánamo Bay and the Re‐Colonial Present

Abstract: The US government has presented Guantánamo Bay to the world through the lens of “exceptional sovereignty”. This argument holds that international law does not apply at Guantanamo because while America has “complete authority” over the base “ultimate sovereignty” rests with Cuba. Many accounts rightly critical of the abuses of power taking place at Guantanamo similarly understand it as something wholly abnormal—a literal “non‐place”. But in falling back on this argument both the American position and many of its critics have tended to “black box” what is taking place within the camp. In this paper I suggest that we ditch any sort of critique that says Guantanamo is somehow outside of the law and instead replace this line of argument with a critical history of the deployment of a particular sort of Executive power there. From this perspective, Guantanamo is better understood as a rather more normal part of the current imperial moment and connected up in various ways to American imaginations and materialisations of power. As a way of exploring some of these connections in greater detail, I examine the construction of Guantanamo as a particular sort of social space by drawing upon the accounts of those who have been there: former guards, detainees and their defence lawyers.     

The Judicial Bookshelf

"In law, also, men make a difference," ¹ counseled Felix Frankfurter the year before his appointment to the Supreme Court. Frankfurter highlighted one of the three critical components of judicial decision-making in constitutional law: alongside the text of the Constitution itself and the cases that pose various questions for decision are the women and men who answer those questions. Those answers, as Frankfurter believed, are invariably influenced by the values Justices bring with them to the Bench. Yet he was expressing no newfound truth, but an awareness that had been apparent for a long time. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," President George Washington wrote future Attorney General Edmund Randolph in 1789, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system." To be sure, the Court's role in the political system was unclear, but Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and dispense justice." ² And as he filled the six seats Congress had authorized for the Supreme Court, the first President made sure that each nominee was a strong supporter of the new Constitution.     

The Threefold Logic of Papua‐Melanesia: Constitution‐writing in the Margins of the Indonesian Nation‐State

Clashes over the status of West Papua and the political future of the territory proliferated markedly following the end of Indonesia's New Order regime in 1998. Amid a wide variety of demands for justice and independence, and a series of demonstrations, mass gatherings and prayers, only a few Papuans mused on how Papua could become a state and what would constitute its nature as being distinctly Papuan and/or Melanesian. One exception is the work put into the Constitution for West Papua entitled Basic Guidelines, State of West Papua, a document edited by Don A.L. Flassy, a bureaucrat, writer and thinker, with a preface by late Theys H. Eluay, then chairman of the Papuan Council. In this article I analyse this Constitution to show how a combination of Christianity and local customs, and a mimicry of elements of Indonesian nation building and symbols of the Indonesian nation‐state are reshaped to oppose Indonesian nation‐building agendas. The Constitution shows that when Papuans imagine an independent state, forms of vernacular legality play a central role. ‘The state’ has journeyed to Papua and encouraged faith in ‘the law,’ and Basic Guidelines is partly the effect of this growing vernacular legality. My analysis shows that it is essential to see how legal mobilisations and imaginations of the state articulate with other normative systems and practices – in particular Christianity and custom (adat) – and how they mutually allow for and invite strategies.     

PHILOSOPHY AND GEOGRAPHY IN THE SEVENTEENTH CENTURY: A REPLY

So far as I can make out, Sitwell's comment on my essay says little that is relevant to its content. In fact he goes so far as to declare that my essay can in large part be ignored, presumably for purposes of gaining an understanding, or getting at the essence, of Margarita Bowen's book. I assume that Sitwell is writing a book review, more or less of the conventional sort, since he remarks that he is undertaking 'a review of the type May chose not to write.' I do not pretend for one moment that what I wrote is a book review. Perhaps it should not even have been called a 'review essay.' But Sitwell is not unaware of this, since he remarks that my 'essay is almost bound to be taken as a review,' which he regards as 'unfortunate.' Despite the fact that the tasks we have each undertaken are substantially different, and hence that our respective papers have little in common, I nevertheless think a few comments are in order.     

Regional patterns in the experiences and treatment of the sick poor, 1800–40: rights,obligations and duties in the rhetoric of paupers

Abstract

This article focuses on three individual paupers who wrote a series of letters about sickness to their home towns in Essex, Northamptonshire and Lancashire. While it would be wrong to claim that the rhetoric and strategies employed by the three writers are representative of all pauper writers, they are representative of those who wrote multiple letters to their parish of settlement and a detailed exposition of their writing can tell us much about sickness and its relief by communities in the last decades of the Old Poor Law. While sick paupers have largely escaped historiographical attention in a literature that has tended to focus on the elderly, widows, children and the unemployed able-bodied man, more detailed study of the life- and dependency-cycles of poor people is beginning to show that sickness was the pivotal experience of people on the margins and that sickness relief swallowed up a very sizeable chunk of poor law resources in the late 18th and early 19th centuries. The strategies, thoughts and experiences of the sick poor are thus not just important in their own right, but also for what they tell us about the sentiment of communities towards the poor and the experiences of paupers in those communities.     

Antonin Scalia and the Dilemma of Constitutional Originalism

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to advance an aggressive and progressive “living constitution” frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. Apart from political realities that affect appointments to the Court, originalism faces obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.     

朱德的和谐思想

朱德一贯重视和谐,具有深厚的和谐思想.认为和谐需要干部以身作则;需要走群众路线;要讲团结、能宽容;要上下一致遵纪守法;"官兵人格平等";要按客观规律生活办事;要"实行民主真行宪";要善于欣赏和爱护环境.     

宪法本体论的解读

宪法是国家的根本大法,这更多的是从一国法律体系和法律效力方面来明确的。全面认识宪法,还应包括更多的内容:宪法是法的组成部分,是人民授权政府的一份授权委托书,因而,宪法既是控制公共权力的控权法,同时又是保护人民权利的保权法;宪法是国家活动的总章程,因而,宪法明确了国家的组织原则和管理方式;宪法调整的是国家的重大社会关系,因而宪法在内容上有别于其他普通法律;宪法具有最高的法律效力,因而制宪和修宪的程序比普通法律严格。     

The Supreme Court and the Interstate Slave Trade: A Study in Evasion, Anarchy, and Extremism

Opponents of slavery often argued that the federal government possessed the constitutional authority to outlaw the interstate slave trade. At its founding in 1833, the American Anti‐Slavery Society declared that Congress “has a right, and is solemnly bound, to suppress the domestic slave trade between the several States.” The idea had been endorsed earlier, during the Missouri controversy of 1819–1820, by both John Jay and Daniel Webster. Later on, in the 1840s and 1850s, it was supported by such prominent politicians as John Quincy Adams, Salmon P. Chase, and Charles Sumner. Defenders of slavery were, of course, horrified by the suggestion that the South's peculiar institution might be attacked in this way, and they vehemently denied that the Constitution permitted any such action. The prolonged debate over the issue focused on two key provisions of the Constitution. One was the Commerce Clause (Article I, Section 8, Clause 3), which says that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The other was the 1808 Clause (Article I, Section 9, Clause 1), which says that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Abolitionists held that the Constitution sanctioned congressional interference in the domestic slave trade both generally, by virtue of the Commerce Clause, and specifically, by virtue of the 1808 Clause. They argued that since slaves were routinely bought and sold, they obviously were articles of commerce, and therefore Congress had unlimited authority over interstate slave trafficking. Furthermore, they said, the words “migration or importation” in the 1808 Clause meant that as of January 1, 1808 Congress had acquired the right not only to ban the importation of slaves, but also to prohibit their migration from one state to another. Defenders of slavery replied that Congress could not interfere in property rights and that the power to regulate commerce did not include the power to destroy it. They also said that the word “migration” in the 1808 Clause referred, not to the domestic movement of slaves, but to the entry into the United States of white immigrants from abroad. ¹     

廪君巴人发源地“武落钟离山”地名新解

古代文献记载廪君巴人发源于"武落钟离山"。当代学者对"武落钟离山"这个历史地名的解释差异比较大,有的认为它是"武落山"、"钟离山"二山的合称,有的认为它的本名是"落钟山",有的认为它在湖北清江流域,有的认为它在重庆大宁河流域。实际上,"武落钟离山"本名"武陵钟离山","武落"为"武陵"传写之误,"武陵"即武陵郡。"武陵钟离山"去掉郡名"武陵",就叫做"钟离山"。这表明廪君巴人的发源地是在清江(夷水)流域而非大宁河流域。     

CONTRASTS MARRIAGE AND IDENTITY IN WESTERN FIJI

You see how people get married here, how much work it involves. The mats, the drums, the animals, it's murder! If it's a woman, that's all right, you just go and eat. But if you've got a young man, you have to start raising cattle. With you foreigners, it's easy. You have a small party and that's it. It's better that way, here it is just too much. You know how the Indians get married, Niko? The man goes to the woman's father and says, ‘Here's a thousand dollars. How about it?’ He says, ‘That's not much.’ Then the man offers fifteen hundred, he says ‘Ummm.’ Then when the man offers two thousand, he says, ‘All right.’ Different customs, say!     

Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore

In 1833, a mere forty-five years after the Constitution of the United States took effect, the young republic was striving to establish the form its constitutional government would take. For while the Constitution and its first ten amendments had set forth many principles regarding the rights of individual citizens with respect to the actions of their government, the precise nature of these relations would be determined in large part by U.S. Supreme Court Chief Justice John Marshall.     

The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. ¹ One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” ² Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” ³ Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” ⁴