Trouble in Capital City!

In my years as a university professor, I taught both the English Civil War (=Revolution) and the French Revolutions, and the American one as well, all of them at various levels of detail.  On all of them, I read far more material than ever got into my lectures.


I've always had an interest in constitutional law and constitutional change and so lots of facts and theories continue to rattle around in my head, waiting for a moment of relevance when they will pop out.

Here's today's moment of relevance.

It is a sign of real trouble to come that Trump has managed to alienate a large number judges in his first week in office.  Any political system that has a meaningful constitution (not necessarily a good, or  democratic or even a healthy constitution, just one that more or less functions) needs the support of the judiciary and the senior lawyers to get anything important done.  The collaboration (usually an uncomfortable one) between the elected officials and the judiciary etc. is a well-known feature of the American political system; but this applies to places like Pakistan where more than once a quite corrupt, autocratic and military-based government has been stopped in its tracks (or at least slowed down) by lawyers demonstrating and resisting.  (On at least one occasion I remember hearing that the lawyers brought clubs (which looked a lot like sticks of rattan!), whether for offensive or defensive purposes I don't know.

In both the English and French Revolutions, some of the earliest conflict was between the executive branch and the constitutional courts.  The judges, if I recall correctly, took a "conservative" stand, while the king and his  ministers were trying to introduce innovations (partly to raise money) and justifying their actions on the right of the king, or at least the crown, to tell everybody else what to do.  The argument over what was constitutional soon got out of hand.

I am not saying that we are on the brink of an American revolution.  But the situation has tremendous potential for instability.

Image:  Don't mess with this guy!

"The honour of the Crown is thus engaged here."

Thus says the Supreme Court of Canada about the failure of federal governments to fulfill an 1870 commitment to the native Metis, i.e., to distribute and convey title to an appropriate land allocation to them in what is now Manitoba.  The CBC has a good summary:

The Métis argued that Ottawa reneged on its promises under the Manitoba Act, which created the province and brought it into Confederation.

The Manitoba Act, made in 1870, promised to set aside 5,565 square kilometres of land for 7,000 children of the Red River Métis. That land includes what is now the city of Winnipeg.

The land transfer to the Métis outlined in the Act was to be a "concrete measure" to reconcile with the Métis community, the ruling agrees, calling its "prompt and equitable implementation... fundamental."

The land grants were meant to give the Métis a head start in the race for land in the new province, and that meant the grants had to be made while a head start was still possible, the justices wrote. "Everyone concerned understood that a wave of settlement from Europe and Canada to the east would soon sweep over the province."

The land deal was made in order to settle the Red River Rebellion, which was fought by Métis rebels struggling to hold onto their land amid growing white settlements.

However, it took 15 years for the lands to be completely distributed, while the Métis rebels faced hostility from large numbers of incoming settlers.

Lower courts found in federal government's favour

The federal government ultimately distributed the land through a random lottery, destroying the dream of a Métis homeland.

"Section 31 conferred land rights on yet-to-be-identified individuals – the Métis children," the ruling says. "Yet the record leaves no doubt that it was a promise made to the Métis people collectively, in recognition of their distinct community. The honour of the Crown is thus engaged here."

The Metis are not asking for the land allocation (which would include all of Winnipeg!) but for compensation.  How long will that take?

Linda Greenhouse on Robert Bork

If you have access to the New York Times, you may want to read about Robert Bork, one of the most controversial failed nominees to the Supreme Court of the United States; he recently died. I have included an excerpt, but you should read the whole thing and the very interesting comments that follow. It will teach you a lot about the ideological development of American politics.

No one who actually lived through the Senate Judiciary Committee hearing in September 1987 is without views on the subject, and I have previously offered mine. I think that the televised hearing, which held the country spellbound, provided a rare and valuable public seminar on the meaning of the Constitution, the methods of constitutional interpretation, and the different answers that competing methods offer to the most profound questions of individual autonomy and equality.... [What] “borking” really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted.... I [later] asked [Bork] whether, at any time during the hearing, he had felt that a member of the Judiciary Committee had met him on his own level in serious constitutional conversation.
“No,” he answered. “Not even Arlen Specter?” I asked. “Specter had his mind made up from the beginning,” he snapped. I knew that wasn’t true.... Specter, a Pennsylvania Republican, had in fact agonized over his vote, as I knew from having talked with him almost daily. A Yale Law School graduate and former prosecutor, the senator went head to head with the nominee through several rounds of questioning, hours of mesmerizing constitutional debate in which he probed for any sign of flexibility in Judge Bork’s view that the entire course of modern constitutional law was profoundly mistaken. Finding none, Senator Specter, who had assumed at the start of the hearing that he would vote for confirmation, decided to vote No.... Five other Republicans followed....

Bork couldn’t accept the legitimacy of his defeat.... Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened....
Senator Hatch served up what sounded like a concluding, softball question: “In your lengthy constitutional studies, is there any Supreme Court decision that has stirred more controversy or criticism amongst scholars and citizens than that particular case [Roe v. Wade]?” Then came the unexpected answer: “I suppose the only candidate for that, Senator, would be Brown v. Board of Education.”... As Senator Hatch immediately grasped, the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate. The 1954 school desegregation ruling was in fact the subject of substantial criticism within the legal academy in the 1950s and well into the 1960s; some eminent professors, while endorsing the outcome, took strong issue with the court’s analytical method. Awareness of the rich critical literature from that period had faded away by 1987, effaced by the decision’s celebrated unanimity and moral weight. So while Judge Bork’s answer to Senator Hatch was historically accurate, it was an obtuse accuracy. More to the point was how the moral dimension seemed to elude him as he tossed Brown into the same box with the abortion decision of which he had been so scathingly dismissive....

I see him as a tragic figure: not because he was dealt an unjust hand – he wasn’t – but because of his inability to understand what happened. He spent his final decades surrounded by acolytes who stoked his sense of victimhood, and there seemed to be no one around him to provide a reality check as his rants about the Supreme Court’s depredations and the collapse of Western civilization (he portrayed the two as inextricably linked) became ever more extravagant.... By 1996, in “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” he was taking aim at Darwinian evolution and embracing “intelligent design,” evidence for which he later called “overwhelming.” “A Country I Do Not Recognize,” a book he edited in 2005, found him plunging ever deeper into the culture wars

Two Americas on September 11, 2010

Anyone who reads this blog is probably aware of the outburst of Islamophobia in the USA recently, with intemperate denunciations of plans to build a Muslim community center a few blocks from the WTC site in Manhattan, threats to burn the Quran (exactly why I am not sure) and rabble-rousing about how (American!) Muslims might not deserve the full measure of 1st amendment protections.  Alarming and in some instances rather hysterical.  It's like the return of Millard Fillmore, in whose time it was the Irish who might not deserve the 1st amendment, because they were the wrong kind of Christian.

But bad as the active promotion of this stuff, by agitators obscure and prominent alike, may be, all may not as it seems.    Let me tell you what I saw this September 11.

I was invited to take part in an SCA medieval re-creation in Northern Illinois.   Despite the distance I decided to go.   Despite some early rain, the weather was mostly beautiful and there were probably 400 people there, dressed in a variety of medieval-style clothing and some very sharp-looking armor.  Among this crowd were some people playing the part of medieval Muslims, including a handful of ordinary black and white Americans wearing niqabs.

And no one said boo.

On September 11.

That evening I was at dinner with another participant, talking about a favorite SCA subject, one's upcoming artistic projects.  The lady in question expressed a more-than-idle desire to extend her knowledge of medieval culture by learning a foreign language. 

Arabic. 

About this point I began to feel that there must be two different USAs, on two different planets, one considerably less hysterical than the other.

Thank heaven.

I will remember this when the big-name agitators start thumping their drums, or start promoting some lunatic preacher or politician because they are steadfast against unAmerican Islam.

BTW, I did indeed see a remembrance ceremony of the 9-11 attacks, too.  The participants were very dignified and appropriate and had nothing to do with denouncing any religious tradition.

Image:  an attendee at the event in question.

Nipissing University historian goes to the US Supreme Court

...again! (At least his arguments did.)

Back in 2008, Nathan Kozuskanich, Nipissing University's Early American historian, was cited in supporting material submitted to the United States Supreme Court in regards to a case called "Heller" involving the Second Amendment to the Constitution, the one about bearing arms. Nathan's contribution was specifically to analyze 18th century American sources to see what "bearing arms" meant at the time the amendment was written and passed. His arguments did not win the day for the people who used them, but being noticed at all in that crowded forum is nothing to be sneezed at. Mountains of learned tracts have been written about the Second Amendment; his stood out anyway.

In the past week a second case concerning the interpretation of the Second Amendment, "McDonald," came up to the Supreme Court, and this time, Nathan's name and his crucial article on "bearing arms" were mentioned in the dissent of Justice Breyer ! I am linking to the Google docs version. I found it impossible to search for Nathan's last name or anything else when I followed the link to Google docs, so I will say that when I read the judgment, the citation was on page 3 of Breyer's dissent, page 182 of the file. Justice Breyer's dissent indeed incorporates recognizable logic from Nathan's original article.

We are all proud here to have a colleague playing in the big leagues on important issues.

Image: The Right to Bare Arms, the album.