March 3, 2010


Biskupic, Joan, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Sarah Crichton Books/Farrar, Straus & Giroux, 2009) (In his review, "Man of Influence," NYT Book Review, 1/3/10, Jeffrey Rosen is correct when he write, "It's hard to write a fair-minded biography of such a polarizing figure, but that's what Joan Biskupic has dome with "American Original." When one reads a Scalia in his owen words, such as the in the following passage, one can hear his honesty, hear his anger, hear his resentment, yet hear his tin ear. "'My father came to this country when he was a teen-ager,' Scalia said, launching into a lesson in ethnic resentment during his Washington University speech. 'Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man. There are, of course, many white ethnic groups that came to this country in great numbers relatively late in its history--Italians, Jews, Irish, Poles--who not only took no part in, and derived no profit from, the major historic suppression of the currently acknowledged minority groups, but were, in fact, themselves the object of discrimination by the dominant Anglo-Saxon majority . . . [T]o compare their racial debt . . . with that of those who plied the slave trade, and who maintained a formal caste system for many years hereafter, is to confuse a mountain with a molehill.'" Referring to the white judges who were responsible for such rulings, Scalia also said, '[C]uriously enough, we find that in the system of restorative justice established by the [John Minor] Wisdoms and the [Lewis F.] Powells and he [Byron R.] Whites, it is precisely these groups [the Italian, Jews, Irish, Poles] that do most of the restoring. It is they who, to a disproportionate degree, are the competitors with the urban blacks and Hispanics for jobs, housing, education--all those things that enable one to scramble to the top of the social heap where one can speak eloquently (and quite safely) of restorative justice.'" Id. at 70-71 (citation omitted). I have asked myself, what makes a person a 'true American' (or a 'true German' or a 'true Scot'). This is not the question of what makes someone a 'patriotic American.' It seemed to me that the accident of place of birth, parents, etc., or the legalities of citizenship or naturalization are at the essence of being a 'true American.' I think it requires that one both knows and embraces the particular country's long history, both the good and the bad. It requires one to not simply be proud for the many great things its peoples have accomplished (including it continued efforts at democracy), but also to be disgusted with oneself (ourselves) for its peoples' gross failures: slavery, Indian removal, Japanese-American internments, etc. It is not enough to acknowledge these as part of our distant past, or as something that others did. To be an American is to say that 'I am part of the WE that did those things. I think it is what it means to be a people rather than a rag tag collection of individuals who just happen to occupy a particular time and place. Scalia does not view himself as part of that particular vision of "We the people." Originalist that he is, he does not see his personal history as having a branch that weaves back to, and includes, the injustices that we Americans inflicted upon each other for centuries. Note: As cosmopolites, however, we should aspire toward being citizens of the world, a highly connected, integrated, global community.).

Bollinger, Lee C., Uninhibited, Robust, and Wide-Open: A Free Press For a New Century(Oxford & New York: Oxford U. Press, 2010) (This is a short, thoughtful book utilizing the history of freedom of the press under the First Amendment to identify and arguing for the need to secure a free (i.e., uninhibited, robust, and wide-open) global press in the twenty-first century.).

Dreisbach, Daniel L. & Mark David Hall, eds., The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding (Indianapolis: Liberty Fund, 2009).

Friedman, Barry, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009) ("As often as not, fights over judicial power really are fights over the meaning of the Constitution. This is not to say that judicial power isn't an issue in and of itself; it is always a fair question in a democracy whether a public official has too much power, or is insufficiently accountable to the people. But judicial power becomes an issue precisely because judges interpret the Constitution and because judicial decisions seem so very final. This has been the case from the start. . . ." "Caught up in immediate controversy, Americans can overlook this point. They fail to see that what looks to be a roaring battle over judicial power is simply the latest round in a much broader struggle over the proper interpretation of the Constitution. In a constitutional democracy, majority will regularly is pitted against minority rights. This tension, which is at the heart of constitutional democracy, would exist even if there were no judges. It is the meaning of the Constitution itself that is up for grabs, and judicial power is nothing more than a pawn in that battle." "In a sense, the history of the relationship between judicial review and the popular will has been one of great continuity. The justices decide cases involving constitutional questions of substantial importance to the American people. Given the seemingly finality of judicial decisions, those who disagree with the justices lash out at the Court and the power of judicial review. Those who agree with the justices jump to their defense waving the Constitution. And a fight over the Constitution becomes one about the judges." Id. at 8-9. This is an interesting and worthwhile read, which it not to say that it is right on all points.).

Lipsky, Seth, The Citizen's Constitution: An Annotated Guide (New York: Basic Books, 2009) (See Adam Liptak's review, "More Perfect," NYT Book Review, 1/10/10. Also see my comments on Jack Rakove's book below.).

Marshall, John, Writings selected by Charles F. Hobson (New York: Library of America, 2010) (From a letter to Joseph Story: "I am truly delighted that your commentaries are published. I shall read them eagerly myself, and wish most ardently that they may be read by others to whom they would be still more useful. The copy intended for the schools will do much good where the teachers introduce it. I greatly fear that, south of the Potomack, where it is most wanted, it will be least used. It is a Mahomedan rule, I understand, 'never to dispute with the ignorant,' and we of the true faith in the South abjure the contamination of infidel political works. It would give our orthodox Nullifyer a fever to read the heresies of your commentaries. A whole school might be infected by the atmosphere of a single copy should it be placed on one of the shelves of a book case." Id. at 834, 835.).

Nussbaum, Martha C., From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford & New York: Oxford U. Press, 2010) (Nussbaum discusses what she characterizes as a transition from the 'politics of disgust' to the 'politics of humanity.' The latter, I think, might be better labeled and understood as the 'politics of empathy.' This would underscore that the politics of humanity/empathy no less essentially appeals to the emotional, as opposed to appeal to the rational, than does the politics of disgust. The basis for ending discriminatory and inferior treatment of women, of racial, ethnic, and religious minorities, of most forms of physical disabilities, etc., is not that men, members of the racial, ethnic, and religious majorities, of the nondisabled (or, as they say, the temporarily able) empathize with the former. Rather, such discrimination ought to cease because such discrimination actually makes little sense (i.e., it is actually rather stupid), and is socially and economically destructive. Appeals to disgust and empathy are appeals to our lesser capabilities. Then again, maybe our brains are not developed enough to reason these issues through, so we fall back exclusively on our emotional intelligence. Moreover, 'disgust' is easily thought of as something which can be quantified (i.e., units, levels, intensities, etc., of disgust). 'Humanity' is, I think, less thought of as quantifiable. So, again, I would suggest "empathy' rather than 'humanity' (i.e., units, levels, intensities, etc., of empathy). Also, empathy is not a very stable sentiment. Appeal to empathy may well be quite useful, even necessary, in motivating people to rethink their positions. I am less convince that empathy is a solid foundation upon which to maintain social and political institutions. Empathizing with slaves may have motivated many northerners to oppose slavery, but it did not result in strong sentiment toward social, political, or legal equality with those slaves, former slaves, and fellow citizens. One might also note that between the extremes of disgust and empathy, there is a place called "indifference." From the vantage points of disgust and empathy, indifference appears to be a negative state. But that truly so? If a person is indifferent as to whether someone is a practicing Roman Catholic, Anabaptist, a Jew, Muslim, Hindu, atheist, or whatever, is that a bad attitude to have? If not, cannot the same be said regarding a person's indifference as to the sexual preference/orientations? So, maybe disgust is bad and empathy is ideal; but perhaps indifference is good enough. All that said, Nussbaum is a worthwhile, nontechnical read.).

Rakove, Jack N., ed., The Annotated U.S. Constitution and Declaration of Independence (Cambridge, Massachusetts & London, England Belknap/Harvard U. Press, 2009) (I often wonder as to the percentage of Americans who have read the suubject documents period; with what frequency they reread these documents; what percentage of practicing American lawyers and/or law professors read these documents on an annual basis; etc. In regards to the latter, I would suggest that practising American lawyers and law professors at American law schools--if not all citizens and residents of the United States--- should read and think about these documents annually. Rakove annotated versions of these documents would make it a productive annual event. Also see Adam Liptak's review mention in comments on Seth Lipsky's book above.).

Tribe, Laurence H., The Invisible Constitution(Oxford & New York: Oxford U. Press, 2008) ("The Ninth Amendment . . . expressly says, 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' In plain English, there's more there than meets the eye." "Whether people trying to figure out what that instruction means, or what anything else in the Constitution means, are to consult what the words meant to those who wrote them, or the ordinary person in the public to whom they were originally addressed, or to readers of the text at the time it is being interpreted and appled, are issues that the Constitution's own text can't hope to resolve. Pursuing each of these possible sources of meaning entails investigating matters of empirical fact. And making choices among those sources of ne=meaning is a task on which the Constitution's text is silent. Thus, in resolving such matters, readers are compelled to look outside of and beyond the text--to various possible historical accounts, to political and moral philosophy, to theories of language and meaning . . . , to functional and pragmatic considerations of how well various alternative would work, to institutional factors (who 's asking and why?), and to a host of other sources beyond the Constitution that we can all see and read. Indeed, one of the ways the Constitution works is that it puts us all to work, pushing us to look more deeply into our shared and separate histories and values, making us conform what we might otherwise not notice or might even positively avoid. In reading it, we discover matter beyond its horizons that we must take into account in deciding who we are to become, or avoid becoming." Id. at 7-8. Several points: (1) Any student taking Constitutional Law should buy and read this book. (2) Any person who decides to open his or her mouth to express an opinion as to what the Constitution says or means, what their or another's constitutional rights are or are not, etc., should read this book. (3) Everyone, but particularly law students and the law teachers, should read and reread the passage I have quoted. Not just because of what it says about how to approach and work with the Constitution, but because of what it says about competency. ASSUMING YOU WANT TO GET BEYOND THE SUPERFICIAL, THEN YOU GOT TO KNOW STUFF, A WHOLE LOT OF STUFF, TO BEGIN TO BE COMPETENT IN KNOWING HOW SOMETHING REALLY WORKS. AND THAT REQUIRES A LOT OF READING TO APPRECIATE WHAT OTHERS HAVE SAID, WRITTEN, TRIED, ARGUED, ETC. So, try to know stuff. It can't hurt, and usually helps.).

Wills, Garry, Bomb Power: The Modern Presidency and The National Security State (New York: The Penguin Press, 2010) ("This book has a basic thesis, that the Bomb altered our subsequent history down to its deepest constitutional roots. It redefined the presidency, as in all respects America's 'Commander in Chief' (a term that took on a new and unconstitutional meaning in this period). It fostered an anxiety of continuing crisis, so that society was pervasively militarized. It redefined the government as a National Security State, with an apparatus of secrecy and executive control. It redefined Congress, as an executor of the executive. Only one part of the government had the supreme power, the Bomb, and all else must defer to it, for the good of the nation, for the good of the world, for the custody of the future, in a world of perpetual emergency superseding ordinary constitutional restrictions" Id. at 1. This book should be read in conjunction with Yoo's book below. Also, see the Walter Isaacson's review of both book, "Who Declares War?", NYT Book Review, 1/24/10.).

Yoo, John, Crisis and Command: A History of Executive Power From George Washington to George W. Bush (New York: Kaplan Publishing, 2009) (See comments on Wills above. I am unconvinced by Yoo's skewed reading of history. Moreover, I am reminded of the problem of management by crisis. It is one thing to be an effective manager when there is an actual crisis; it is another thing to adopt 'crisis' as one's management style. The latter has a tendency--and I suspect that it is intentional--to quash informed decision-making because it cuts off discussion, varied perspectives, and consideration of alternatives. That is, there is no time for meaningful debate and discussion because there is an alleged crisis. Everyone, therefore, must defer to the one. It reflects a power grab by the decision maker (i.e., "the decider"). However, though it may project power, it actually reflects weakness: the inability of the deccision-maker to risk that his or her perspective, ideas, thoughts, strategies, goals, etc., are not the best and would not have prevailed were they forced to compete opening. Garry Wills is correct to suggest that the United States has placed itself in permanent crisis, or war, mode. I would argue that we have ceased to be a republic, let alone a truly representative democracy, as more and more power has been vested in the presidency because of the constant state of crisis and emergency, both real and manufactured.).

Zuckert, Michael P. & Derek A. Webb, eds., The Anti-Federalist Writings of the Melancton Smith Circle (Indianapolis: Liberty Fund, 2009).