September 19, 2006


As the first few posts begin to describe the background and the reasons for our little conversation, let us digress here to pose a rhetorical question to assist in framing our issues.
Yesterday, two criminal defendants pleaded guilty to charges against them and helped raise a serious concern with which we will be dealing. Congressman Bob Ney and former college football player Maurice Clarett both now face sentencing after prior vehement protestations in the press over their innocence and the unfairness of their prosecution and those bringing it. Each defendant went before a judge and admitted, under oath, that he was pleading guilty because he was indeed guilty.
Rep. Ney made his own pre-plea yelps (dutifully re-broadcast by radio and blog syncophants), and it is his responsibility to now to own up to his persistent lying.
Maurice Clarett, however, has basically remained silent throughout this process. It is his lawyers who have continually howled his absolute innocence (and the attendant unfairness) in the variety of cases he faced and to some of which he has now admitted guilt.
This situation raises a question of responsibility that is frequently ignored: how are Clarett’s lawyers “off the hook” for their untrue statements, for their unfair and unsupported attacks on the legal system and the process of justice (and on the facts themselves)? Is this all really just show business as usual or is the system entitled to some respect and the players to some form of personal responsibility?
Is it any wonder that most people pronounce “lawyer” and “liar” the same?

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August 29, 2006

Opening Comment

Okay - boys and girls - we are going to start this little conversation (if that is what we can call it) with a discussion of reality.

The purpose of this occasional rant is to comment and to instruct on the world of the law and lawyers, and the first problem we need to overcome is the fantasyland that most people envision is the American justice system. Our system is the best in the world: it functions on a huge scale and, generally, functions rather well (yes, there are the occasional aberrations, but, as in all human undertakings – consider even your own family – sometimes events just do not go as expected or required).
One major problem is that most of us (stressing the “you” here, not me) really know little of which we purport to speak.

The fundamental cause of this failure is that most of us receive our understanding (which is much too generous a word for what is meant here) from a very limited number of sources – unfortunate sources, if you will: Court TV, Fox News and CNN (regular television programs and movies are a special case we will get to eventually). Just consider the frenzy this week over the spectacularly phony JonBenet (see, we do not even need last name or place, do we? we’re all so familiar already) confessor. The news has been filled with “facts” (please notice the ironic use of the quotation marks – evidence is ONLY what comes out on a court proceeding – we, as the public, have no evidence yet, even though the television and radio commentators just love to use that inaccurate word) and numerous “experts” (notice the quotes again: always ask yourself what makes these people experts other than the appropriate network saying so – and we’ll examine this phenomenon in the next few postings) have already analyzed possible scenarios that will never be shown (unfortunately, eventually) to be even remotely accurate but which will somehow take their place in the “truth” we perceive and remember.

The key to understanding and then learning (the real message of these postings) is recognizing that these televised events are not news but are entertainment, and the supposed neutral commentators are simply entertainers, as we will discuss in the next post.

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May 02, 2006

The Right To Dignity: William Brennan's Activism and the Modern Court

(The following essay is a guest contribution submitted by Travis DeArman, a student of International Relations at The University of southern California.)

Before the final draft of the Constitution was even ratified, debate raged over need to protect individual liberties from government usurpation, as well as the scope of the new federal government’s powers. During this debate, John Jay, Alexander Hamilton, and James Madison authored the Federalist Papers in which Madison declares, “What is government itself but the greatest of all reflection on human nature?” By the assertion of its principle author, the constitution is more than a framework for government. The role of the constitution beyond establishing democratic government is a subject of debate over interpretation. The judicial branch is the center of this incessant debate regarding the fundamental purpose and function of the constitution. On one side, proponents of judicial restraint argue for a rigid, literal reading of the constitution or for deference to the legislature as the “voice of the people.” On the other side, supporters of an active judiciary appeal to thee true purpose and function of the constitution. That purpose and that function are threefold. The constitution is a framework for a representative democracy, a safeguard against the dangers inherent in the same democratic system, and the enshrinement of a philosophy of liberty, initiated by the bill of rights, that is constantly evolving to reflect contemporary zeitgeist.

Too often, the debate over constitutional interpretation focuses on the first function of the constitution, resulting in justification of the doctrine of “Judicial restraint” as opposed to activism. Various theories espouse restraint, but they all ignore fundamental truths about the constitution, namely that its ambiguities require broad interpretation, and that it is a normative document. The Judicial branch, ultimately the Supreme Court, is not simply an auditing division, created to check the actions of the legislature and executive against the test of the articles of the constitution. The Supreme Court must also evaluate all government actions against the normative values enshrined in the Bill of Rights and subsequent amendments. In so doing the court fulfills its primary role as Madison’s “reflection of human nature,” in that it dictates contemporary application of the constitution as a reflection of contemporary ideology and philosophy.

Strict Textualism is advanced as an intellectually unsophisticated challenge to the court’s role as interpreter of the constitution. This theory dictates that the court should act only if government action violates the direct enumeration of the constitution, and is immediately inapplicable because of the ambiguities intentionally included in the constitution. This ambiguity that precludes any textual method of interpretation, allows the constitution to adapt to changing social and cultural standards. As the late Supreme Court justice William Brennan phrased it, “Like every text worth reading, it [the constitution] is not crystalline.”1 If a reference to the text of the constitution would suffice, there would be no need for the incessant debate regarding proper interpretation.
The Majoritarian theory of constitutional interpretation is more nuanced than simple textualism, but remains myopically focused on the constitution’s function in establishing a democratic government. Current Supreme Court justice Antonin Scalia presents the textualist/majoritarian argument in his work A Matter of Interpretation, and in fact, he presents a compelling argument for adhering to text in statutory law. His argument is that in resolving cases of statutory law the judge must look to the text of the law rather than appealing to the intent of the legislation or legislature. In his words, “The Text is law, and it is the text which must be observed” (22). The limited scope of textualism is entirely appropriate when resolving a dispute involving the strictly limited function of statutory law. Through specific statues, the legislature confronts specific legal conundrums, often providing lengthier texts than the constitution to outline specific penalties and definitions. The parallel fails however, when one crosses from statutory law adjudication to constitutional interpretation.
Scalia asserts that if one accepts that courts are bound to rigidly interpret statutory law, then the same standard must “apply a fortiori to a constitution.” Scalia’s arguments hinge on a closed view of the constitution. The bill of rights, to Scalia, is a comprehensive list of liberties protected by the constitution. He rejects the notion of a “living constitution” that adapts to changing social norms, asserting that the codification of the bill of rights is evidence in and of itself of such rejection (40). This argument is subject to two fundamental weaknesses. First, and most importantly, any assertion as to the intention of the framers of the constitution is entirely speculative. It is impossible do definitively determine the mind-set of the nation’s founding fathers. Any theory that appeals to the framer’s intent is truly reflects the ideological and analytical bias of the individual expounding the theory.

Secondly, the appeal to the intent of the framers is a fundamentally flawed measure that emerges in nearly every theory of constitutional interpretation. It logically follows that the courts must consider the intent of the framers of the fourteenth amendment when considering issues of due process. Nearly one hundred years separate the 14th amendment and the original ten, creating a massive disconnect between the intent of the original framers and the author’s of the post Civil War amendments. Upon which “intent” do we focus? The historical guessing game that is “intent” is simply a mask for an unsophisticated bias in constitutional interpretation. It is the ability of the constitution to adapt and reflect the greater philosophy of liberty, or as justice William Brennan put it, “the principle of human dignity,” in contemporary application that underlies its effective governance.

Scalia’s final flaw is the fundamental failure of a majoritarian approach. Scalia argues that the concept of a living constitution is invalid because it often restricts the functioning of democratic government rather than facilitating it. It is the classic argument that, in the case of ambiguity, the judiciary should defer to the democratic process, to the “majority,” to political discourse. This approach reflects modern societies nearly mythical deference to the term “democracy;” in contemporary US culture the word has become synonymous with liberty.

In fact, the constitution is not a carte blanche endorsement of the divine properties of unchecked democracy. Any legitimate theory of interpretation must recognize the constitution as a democratic framework, but must also recognize constitutional restrictions on pure democratic governance. In this vein, Brennan cautions against the majoritarian process, asserting that, “Unabashed enshrinement of majority will would permit the imposition of a social caste system…”(Brennan 26). Tyranny of the majority is every bit as real as the tyranny of an oppressive government, and the constitution was deliberately crafted to shelter the American people from such oppression.

The Judiciary is clearly designated as the guardian against such wanton democracy, and an active and independent judiciary is vitally necessary to preserving constitutional integrity. The lifelong terms dictated by the constitution for federal judges are direct measures of removing those who interpret the law from the majority will that write it. It was Madison himself who championed the judicial branch as the ideal check to majority power, asserting in the seventy-eighth federalist paper that the judiciary controls neither the “sword” nor the “purse” of the government and is therefore the least likely to usurp the people’s liberty.

The role of an active judiciary as a check to democracy is further necessitated by the danger of factionalism within the political branches. Madison recognized the dangers of factionalism in the eighteenth century, and Justice Stephen Breyer quotes Madison in his contemporary work on constitutional interpretation. (Breyer 28-29). The reality of contemporary US politics is that small interests groups wield enormous power in electoral politics. In turn, they claim significant power of both houses of the legislature as well as the executive. One need look no farther than the US trade policy towards Cuba or the bloated subsidy programs for agriculture and steel to witness this influence. With voter turnout hovering around fifty percent in presidential elections (and significantly lower in congressional election) the majority has abdicated their right to participate in the government. Breyer dubs this participatory freedom “Active Liberty.” As he asserts, its protection is a vital function of the constitution, it is part of the constitution establishment of a democratic government. As this first function of government is undermined, the need for a strong judiciary to counter democratic tyranny is doubly required. Tyranny of the majority must be guarded against but the tyranny of factions has lost even the legitimacy of the public will.

The final function of the constitution is intimately linked to the first two. The addition of the Bill of Rights to the constitution as well the subsequent amendments represent the enshrinement of a greater philosophy of liberty. These liberties facilitate the functioning of democratic governance and they serve to safeguard against popular tyranny. Liberty is not constitutionally defined as he product of democracy, rather it is the an independent value, at times in conflict with democracy. William Brennan referred to this greater philosophy of liberty as the principle of “human dignity”. The point of the Bill of rights is not to enumerate specific liberties that are products of democratic process and exclusive and unchangeable except through the same. Rather they are the reflections of principles of liberty, applied to a certain time period. Brennan acknowledges the essential adaptability of the constitution to changing societal realities (27-28).

Such adaptation is readily visible in the application of the first amendment guaranteeing the freedoms of religion and expression. Throughout the 19th century, the courts held that the religious clause of the first amendment prohibited religious persecution, but allowed for the “encouragement” of Christianity ( Subsequent cases haves abandoned this interpretation in favor of a much more absolute separation of church and state. In Abington School District v. Schempp, 374 U.S. 203, 222 (1963). The court established a test to evaluate the religious nature of legislation, declaring that the major purpose of such enactments cannot be either “the advancement or inhibition of religion,” that the same must have a “secular purpose,” and that they must avoid “entanglement of government and religion” ( Clearly, the court’s application of the religious clause has adapted over time. This evolution is not the product of the framer’s intention, nor is it a reflection of majoritarian desires as expressed through representative legislation. It is the product of a changing understanding of liberty that demands renewed application of constitutional guarantees. The movement from a relatively lax separation of Church and State to a much stricter division is a normative evolution. The justices of the 19th and 20th centuries applied the constitution according to an ideal of liberty.

There is little need to superimpose democratic theory in interpreting the constitution. That is not to suggest that democracy is not the key principle of government established by the constitution. It is simply that there is no need to interpret a role for democracy. That role, the first function, is clearly enumerated in the articles of the constitution. Democratic power is firmly vested in the two most powerful branches of government. Majoritarian control of the “sword” and “purse” of the executive and legislature (respectively) is guaranteed. The true role of the judicial branch in interpreting the constitution is to check this majoritarian power. Textualists and Majoritarians dispute this claim; Scalia artfully warns that an active judiciary will politicize he appointment process, thereby politicizing the courts (47). The assertion is artful because it suggests that an active court will author the very imbalance it ostensibly seeks to prevent. It is perplexing proposition, that the judicial branch save itself from political infiltration by abdicated its decision-making responsibility to the political process.

The appointment process may be political, but this is the check upon the courts power. It is the influence of democratic theorists beloved majority. Beyond that influence the court must remain the voice of liberty acting in concert with the voice of democracy. The two terms are not synonyms. The majoritarian voice has its necessary place in the government of the United States. But in deciding how to interpret the constitution one must constantly acknowledge the role of liberty as a greater ideal. It is often expressed democratically, but at other times it must be applied contrary to majority will by an active judicial branch.

Works Cited

William Brennan JR. “The Constitution of the United States: Contemporary ratification.

Stephen Breyer. Active Liberty: Interpreting our Democratic Constitution. Random House Inc.

James Madison. The Federalist Papers No. 78 [online] available at: (accessed 2/5/06)

Antonin Scalia. A Matter of Interpretation: Federal Courts & the Law. Princeton University Press: 1997.

US Government Printing Office Access (GPOACCESS). “The Constitution of the United States: First Amendment – Religion and Expression.” [online] available at: (accessed 2/3/05)

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"A Whitman for our Time."
- Jerome Loving,
"Stephen John Mack's The Pragmatic Whitman: Reimagining American Democracy, [is] The most thoroughly informed philosophical reading of Whitman to appear in decades. Mack develops the premise . . . that Whitman shares with John Dewey a vision of democracy as a 'civic religion' in America, a profoundly secularist and progressive perspective.

- M. Jimmie Killingsworth, Texas A & M University
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