The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²     

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.     

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     

Obama's “Smart‐Power” Strategy,One Year On: The Case of the Middle East

A year ago, President Obama was cheered into the White House. His election represented hope for many, not just in the United States, but around the world. Charged with such force and charisma, unprecedented in U.S. Presidential history, he promised the much needed change that America and the world are waiting for. Obama's election was more of a rebirth that represented hope, “Yes We Can,” to regain the credibility of the United States lost during the last decade.     

George Washington and the Building of the Constitution: Presidential Interpretation and Constitutional Development

As first president, George Washington was in an historically unique position to shape the forms and customs of the newly-ratified Federal Constitution. Unlike most previous accounts of his presidency that focus on Washington's symbolic contributions, this essay suggests that he had a very clear substantive constitutional agenda–an agenda which he consciously sought to shape. Specifically, Washington attempted to graft his own views of separation of powers, executive privilege, federalism, and the rule of law on to the Constitution. More of the “original formsrdquo; of the Constitution, then, bear Washington's distinctive mark than heretofore thought.     

The Passenger Cases Reconsidered in Transatlantic Commerce Clause History

The Supreme Court's 5–4 decision in the Passenger Cases (1849) overturned two Northern states' taxes on poor foreign immigrants. The Court's eight opinions disputed whether destitute transatlantic immigrants arriving in U.S. ports were legally and constitutionally “persons” like fugitive slaves fleeing the South, free African Americans residing in the U.S.‐Canadian borderlands, and black seamen working on ships entering Southern ports. The eight opinions issued in the case, as Charles Warren noted, raised fundamental constitutional questions concerning whether U.S. congressional or state authority was exclusive or concurrent over persons moving in interstate and international business, reflecting wider sectional struggles fostering the Civil War. ¹ More recently, Mary Bilder and others examined connections among indentured contract labor, race‐based American slavery, and the Court's antebellum Commerce Clause decisions to establish that foreign immigrants were commercial objects subject to regulation through the Constitution's Commerce Clause. ² Southerners and Northern pro‐slavery supporters argued, however, that fugitive slaves and free blacks crossing interstate and international borders were “persons” who could be regulated or altogether excluded under state police powers. ³     

Space,identity politics and resource control in Indonesia's transmigration programme

Indonesia's recent history has revealed the fragility of a national unity created under a political authoritarianism that was itself underpinned by the country's relative economic success. The government's transmigration resettlement scheme has been one particularly powerful mechanism through which the New Order government (under President Soeharto) has sought to achieve unity amidst the country's disparate ethnic groups. By resettling Javanese people, Indonesia's largest and most politically central cultural group, the state has attempted to achieve a presence of the “centre” in the country's “margins”, and in turn, extend a particular imagined geography across the archipelago. This paper examines the spatial politics of this process in one particular region, where transmigration has been coloured by environmental authoritarianism and concerns over the activity of “illegal forest squatters”. It draws on Henri Lefebvre's concept of socially produced space to demonstrate how local people have challenged the spatial authority of the state, and the ways subtle forms of resistance are expressed in agrarian landscapes and livelihood practices in Lampung. The paper concludes by reflecting on the possibilities of linking such resistance to emerging social movements which are beginning to challenge the post-Soeharto government's authority outside Java.     

Compassionate Protector of America: The Symbolism of Old Hickory in a Jackson Woman's Mind

Serving as America's only female newspaper editor during the election of 1832, Anne Royall became possibly the first public “Jackson Woman” by supporting the chief executive's bid for re-election in her sheet titled Paul Pry. A closer look at Royall's recollections from her travels in Alabama from 1818 to 1822 shows her to be a blooming “Jackson Woman” developing before the Jackson party was even conceived. In 1828, Royall's Black Books produced a scathing indictment of American society. Both the Adams and Jackson campaigns actively recruited her for their mud-slinging contest but she declined. Three years later Royall started printing Paul Pry. The Black Books and Paul Pry gave Royall a public voice, and she was not afraid to use it. Between 1818 and 1832, Anne Royall went from being a Jackson admirer to being a public Jackson woman.     

Ruinismo: the Catholic Church in Italy from ‘mediation culture’ to the Cultural Project

It is only seven years since Monsignor Camillo Ruini resigned from his role as President of the Italian Episcopal Conference (CEI), yet it feels much longer. The tempestuous events that marked Silvio Berlusconi's decline, on one hand, and the election of Pope Francis to the Holy See, on the other, have made such an impression on recent Italian history that seems to leave no time for reflection on what has happened over the last twenty years. This article explores how, during this time, Cardinal Ruini has re-fashioned the relations between the Catholic Church and Italian politics, following a pattern that has come to be known as ‘ruinismo’. The essay follows the development of the theological-political line of the Conference, from the “mediation” of the “Catholic Party”, the Christian Democrats (DC), to the “policy of presence” of politically committed Catholics, defined in these terms by the ecclesiastical congress in Loreto in 1985 and fully carried out under Ruini's management, with the backing of Berlusconi's governments. The aim is to establish whether and to what extent the “Ruinian” rule may be regarded as the consequence of mainstream Catholic politics of the 1980s and, equally, as a response to the cultural and political transformation brought about by the upheavals of the corruption scandals of 1989–91. Only from this long-term perspective is it possible to determine whether Ruini's exit has brought an end to ruinismo.     

“Birtherism” and Anti-Blackness: The Anti-Islamic Ante-Life of Africanized Slavery

The first black President of the United States, Barack Obama, entered office on a wave of racial optimism. But rather than transcending the United States’ racialized history, Obama's presidency has in a sense “outed” it, exposing this history's anti-Islamic origins. This article establishes a link between anti-blackness and the Islamophobic reaction to his election: late medieval and early modern European Christians could classify newly Africanized peoples as uniquely and ontologically enslaveable only because they previously had imagined Muslims as such.     

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

This analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.     

Mostafa Malekian: Spirituality,Siyasat‐Zadegi and (A)political Self‐Improvement

Mostafa Malekian has yet to receive much attention in Western academic literature pertaining to Iranian intellectual life, but inside Iran, he has emerged as a popular public intellectual; seen as both a culmination of and rupture with the project of “religious intellectualism.” Rather than offer a revolutionary and politically engaged vision of Islam, or a “reformist” or “democratic” interpretation of Shi?ism, his project seeks to integrate what he calls “rationality” (?aqlaniyat) and “spirituality” (ma?naviyat). As Malekian's project has developed, it has broken, in a number of important respects, with mainstream Islam as practiced in Iran, the religious reformist project, and even organized religion as a whole. This article seeks not only to offer one of the first comprehensive analysis of his existential and social thought in English, but also to analyze his project's deep affinities with a pervasive fatigue vis‐à‐vis collective projects of political emancipation and even “politics” tout court, in the latter phases of the “reformist” President Hojjat al‐Islam Seyyed Mohammad Khatami's tenure.     

Bush,Obama and a faith‐based US foreign policy

In a calculated move to appeal to his core constituency during his first term, President George W. Bush launched domestic and international faith‐based initiatives designed to leverage public finance for religious groupings to carry out social and welfare functions formerly performed by government or secular organizations. In December 2002 the Center for Faith‐Based and Community Initiatives (CFBCI) was extended to the United States Agency for International Development (USAID). The Center's intention was to ‘create a level playing field’ for faith‐based and community groups to compete for foreign assistance funding. These presidential initiatives are problematic, however, calling into question the first amendment—the separation of church and state. Upon taking office Barack Obama set up the Office of Faith‐based and Neighborhood Partnerships, promising a greater emphasis on community/neighbourhood programs. The CFBCI remains a fixture in USAID and Obama shows as much enthusiasm for the initiative as his predecessor. Faith‐based international relations and political science scholars have sought to build on these initiatives and call for a greater role for faith in US foreign policy. On the eve of the 2012 presidential election, this article considers the claims for a faith‐based foreign policy by examining the construction of a faith‐based discourse by academics and successive presidents. Using faith‐based initiatives and USAID as a case–study, the article discusses criticisms of the policy and focuses on the role of a conservative evangelical organization, Samaritan's Purse, to illustrate the advantages and disadvantages of faith‐based approaches. The article argues that advocates of faith‐based foreign policy, in seeking special privileges for ecumenical religious actors, overlook their declining international significance and the opportunities afforded to less tolerant but more populist religious actors which have the potential seriously to harm US foreign policy objectives.     

The Modi lahar (wave) in the 2014 Indian national election: A critical realignment?

In India's 2014 general election, the Bharatiya Janata Party (BJP) secured an outright majority of seats, the first time any party has done so since 1984. This has led to claims that this is a ‘critical’ or ‘realigning’ election. Yet, most Indian elections are initially described as ‘critical’ elections, which suggests that this concept needs to be further refined to be analytically useful in India's electorally volatile and regionalised political context. This commentary conceptualises critical elections in India as those that enable the winning party to build lasting regional social coalitions. Such coalitions need to be consolidated in subsequent elections for a realignment to take place. A mastery of regional politics was crucial to the BJP's 2014 win, which does mark this as a potentially realigning election. Yet, questions remain about its ability to consolidate the coalitions that delivered this result.

2014年的普选中,印度人民党获得了绝对多数的议席,破了1984以来各政党的记录。这被看作一次“关键性”的、改弦易辙的选举。不过,印度的选举一开始也多被说成“关键性”的选举。所以,这个概念尚需推敲,以便能够用来分析印度变幻不定的选情以及地区化的政情。本文将印度的“关键性”选举界定为获胜党得建立长久的地区社会联盟。这个联盟需要在日后的选举中加固,才谈得上改弦易辙。把握好地区政治对于人民党2014年选举的胜利至关重要,它使得这次选举成为潜在的改弦易辙。但它是否有能力加固联盟以释放改弦易辙的效果,则还是一个问题。     

Attorney General Kennedy versus Solicitor General Cox: The Formulation of the Federal Government's Position in the Reapportionment Cases

In a recent article in this journal, “May It Please the Court? The Solicitor General's Not-So-‘Special' Relationship: Archibald Cox and the 1963–1964 Reapportionment Cases,” ¹ Helen J. Knowles shows how the Supreme Court went beyond the arguments of the Solicitor General, Archibald Cox, in establishing “one man, one vote” as the governing principle for the election of state legislators. In making this demonstration, Ms. Knowles also shows how Attorney General Robert Kennedy prevailed on Cox to support the plaintiffs in six reapportionment cases despite Cox's serious doubts about this position. ² In doing so, Ms. Knowles was more than generous in describing my small part in this story.     

Beneath the “Zunami”: Jacob Zuma and the Gendered Politics of Social Reproduction in South Africa

Abstract: In April 2009, African National Congress leader Jacob Zuma was swept into power in South Africa's fourth democratic general election. To date, this political “Zunami” has largely been presented as either a leftist rebellion against Mbeki's neoliberalism, a reassertion of patriarchal “traditionalism”, or an example of Zulu ethnic mobilization. This article draws on a long‐term ethnographic study to provide a critical gendered perspective on Zuma's rise. It argues that Zuma resonates with many poor South Africans, including women, in part because of his ability to connect the personal and political in ways that talk to South Africa's “crisis of social reproduction”. A key point the article emphasizes—one virtually absent from contemporary discussions about Zuma—is the profound gendering of growing class divisions, specifically the way this manifests itself in huge reductions in marital rates and heightened gendered contestations.     

Islam and politics in Turkey: the 2007 presidential elections and beyond

The changing role of Islam in the public life of Turkey is about to come under renewed scrutiny, the key issue being the potential candidates for the May 2007 presidential election. Erdoǧan, the Prime Minister and head of the first Islamist majority government in the republic's history, is likely to stand. Arguments already abound as to the legitimacy of such a move, with the opposition declaring that they will boycott the election if Erdoǧan becomes a candidate. Equally, Erdoǧan's own supporters are, in public, at least occasionally uncertain, conscious that when the late Özal moved to become president, his party suffered. Secularists grimly wonder whether they will be able to survive such an overt transfer to an Islamist figure, one whom they fear would be a great contrast to the pro‐Republican present incumbent, President Sezer. Yet, how should we face such a transition? What implications does it have for Turkey's politics, both internally in terms of the social life of the country, and in external affairs?     

Letter to the Movement: Antiwar Strategies on the Eve of Destruction and Occupation

Author's Intro: This is a two‐part essay on antiwar strategy and tactics. The first part was finished a few hours after George Bush's TV announcement that the US would invade and begin bombing Iraq. The second part was finished in mid‐May 2003, as the US occupation forces formally announced their colonization of Iraq, with cracker Tommy Franks goose‐stepping around Iraq as the latest jewel in the American empire. The question remains for the whole world, especially for those of us living in what is more appropriately named than ever “the belly of the beast”: What are we going to do about the United States?     

William Howard Taft,the 1908 Election,and the Future of the American Presidency

Although the first presidential election where both major party candidates (William Howard Taft and William Jennings Bryan) hit the campaign trail, the election of 1908 is a neglected election. When scholars do address it, they typically focus on retiring incumbent president Theodore Roosevelt and his role therein. This article turns the focus away from Roosevelt, and also Bryan, and places it firmly on Taft, a reluctant candidate. Taft's role in 1908 is important because his very reluctance to embrace the changing expectations of the presidency helps to highlight the tensions between the old and new ways of campaigning and, more broadly, the traditional and modern presidencies.

The article first addresses Taft's decision to abandon his “front-porch” campaign. Taft's initial inclination toward a front-porch campaign reveals well his more traditional approach to the election and to the presidency in general, just as his decision to abandon this plan and “stump” for votes reflects his submission to developing trends and expectations. Second, the article examines the changing role of technology, this election being the first to feature phonograph recordings of the candidates, which would then be sold—and played—across the country. Third, the tours and speeches of Taft in the 1908 general election take center stage. The spectacle of these tours offers further evidence of the changing contours of American politics and presidential leadership, especially in elevating the personalities of the candidates. Finally, the 1908 election is examined from the standpoint of American political development and presidential history.