Judicial Power Quotes

Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.

In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.

I like money, I love it, I use it wisely, constructively, and judiciously. Money is constantly circulating in my life. I release it with joy, and it returns to me multiplied in a wonderful way. It is good and very good. Money flows to me in avalanches of abundance. I use it for good only, and I am grateful for my good and for the riches of my mind.

You know, the press is as much part of our democracy as Congress or the executive branch or the judicial branch. It has to keep things in check. And when the powerful control the press, or make the press useless, if the people can’t trust the press, the people lose. And the powerful can do what they want.

What men want is not talent, it is purpose; in other words, not the power to achieve, but will to labor. I believe that labor judiciously and continuously applied becomes genius.

One of the essential characteristics of the state of exception-the provisional abolition of the distinction among legislative, executive, and judicial powers-here shows its tendency to become a lasting practice of government.

Emotion is a powerful rethorical tool, but only when used judiciously. Calculated anger can be terrifying. Tantrums and hsyteria are pathetic.

In particular, the State has arrogated to itself a compulsory monopoly over police and military services, the provision of law, judicial decision-making, the mint and the power to create money, unused land ("the public domain"), streets and highways, rivers and coastal waters, and the means of delivering mail...the State relies on control of the levers of propaganda to persuade its subjects to obey or even exalt their rulers.

In many areas of life, freedom is not so much the absence of restrictions as finding the right ones, the liberating restrictions. Those that fit with the reality of our nature and the world produce greater power and scope for our abilities and a deeper joy and fulfillment. Experimentation, risk, and making mistakes bring growth only if, over time, they show us our limits as well as our abilities. If we only grow intellectually, vocationally, and physically through judicious constraints–why would it not also be true for spiritual and moral growth? Instead of insisting on freedom to create spiritual reality, shouldn’t we be seeking to discover it and disciplining ourselves to live according to it?

A jury is always a more orthodox body than any defendant brought before it; for blacks it is usually a whiter group, for poor people, a more prosperous group... Another lesson about the justice system: the way the judge charges the jury inevitably pushes them one way or the other, limits their independent judgment.

I realize that what happened in Bosnia could happen anywhere in the world, particularly in places that are diverse and have a history of conflict. It only takes bad leadership for a country to go up in flames, for people of different ethnicity, color, or religion to kill each other as if they had nothing in common whatsoever. Having a democratic constitution, laws that secure human rights, police that maintain order, a judicial system, and freedom of speech don't ultimately guarantee long lasting peace. If greedy or bloodthirsty leaders come to power, it can all go down. It happened to us. It can happen to you.

A man who wants to gain power over a woman must follow the example of women and condition his sex drive. If he succeeds in becoming as cold as she, she can no longer bait him with sex into the role of provider. At most she could offer herself as an equal sex partner, as dependent on him as he is on her. If men could abstain from sex at judicious intervals they might even succeed in normalizing the female sex drive - even make women desire them more than the other way around.

Maybe the greatest power of all is the power of restraint.

Going high is about learning to keep the poison out and the power in. It means that you have to be judicious with your energy and clear in your convictions. You push ahead in some instances and pull back in others, giving yourself opportunities to rest and restore. It helps to recognize that you are operating on a budget, as all of us are. When it comes to our attention, our time, our credibility, our goodwill toward and from others, we work with a limited but renewable set of resources.

and line of cases. Justice Byron R. "Whizzer" White, a JFK appointee, dissented, calling Doe an act of "raw judicial power," as it took these decisions from the states and enshrined their determination in the Supreme Court's reasoning.

In Ake v. Oklahoma, the Court said: “When a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense…. Justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

He is wretched indeed, who goes up and down in the world, without a God to take care of him, to be his guide and protector, and to bless him in his affairs [. . .] That unconverted men are without God shows that they are liable to all manner of evil [. . .] liable to the power of the devil, to the power of all manner of temptation [. . .] to be deceived and seduced into erroneous opinions [. . .] to embrace damnable doctrines [. . .] to be given up of God to judicial hardness of heart [. . .] to commit all manner of sin, and even the unpardonable sin itself. They cannot be sure they shall not commit that sin. They are liable to build up a false hope of heaven, and so to go hoping to hell [. . .] to die senseless and stupid, as many have died [. . .] to die in such a case as Saul and Judas did, fearless of hell. They have no security from it. They are liable to all manner of mischief, since they are without God. They cannot tell what shall befall them, nor when they are secure from anything. They are not safe one moment. Ten thousand fatal mischiefs may befall them, that may make them miserable forever. They, who have God for their God, are safe from all such evils. It is not possible that they should befall them. God is their covenant God, and they have his faithful promise to be their refuge.

Every time we let ourselves believe for unworthy reasons, we weaken our powers of self-control, of doubting, of judicially and fairly weighing evidence. We all suffer severely enough from the maintenance and support of false beliefs and the fatally wrong actions which they lead to, and the evil born when one such belief is entertained is great and wide.

Only the weak are corrupted by power. The strong judiciously use it as a tool in service to others

From my keen observation, it is a very sad fact that the Philippines’ current administration's drug war crisis has fully pressed the pedal of acceleration to more division, hatred, cycles of violence (copycat killings, summary killings, extra judicial killings, collateral victims of drug war), toxic revenge, and perpetual impunity. ~ Angelica Hopes, reflections on Drug War in the Philippines

Perhaps the reader is astonished by the frankness with which I expose and emphasize my mediocrity; let him remember that frankness is the virtue most appropriate to a defunct. In life, the watchful eye of public opinion, the conflict of interests, the struggle of greed against greed oblige a man to hide his old rags, to conceal the rips and patches, to withhold from the world the revelations that he makes to his own conscience; and the greatest reward comes when a man, in so deceiving others, manages at the same time to deceive himself, for in such case he spares himself shame, which is a painful experience, and hypocrisy, which is a hideous vice. But in death, what a difference! what relief! what freedom! How glorious to throw away your cloak, to dump your spangles in a ditch, to unfold yourself, to strip off all your paint and ornaments, to confess plainly what you were and what you failed to be! For, after all, you have no neighbors, no friends, no enemies, no acquaintances, no strangers, no audience at all. The sharp and judicial eye of public opinion loses its power as soon as we enter the territory of death. I do not deny that it sometimes glances this way and examines and judges us, but we dead folk are not concerned about its judgment. You who still live, believe me, there is nothing in the world so monstrously vast as our indifference.

As Machiavelli observed, Rome showed, tyrant after tyrant, how those reared in palatine luxury, expecting to be master of the world, basely abused the godlike authority that fell to them unearned, while those promoted through merit—Hadrian, Antoninus Pius, Marcus Aurelius—made judicious use of the Imperium of which they considered themselves, not owners, but custodians. It is not power that corrupts, but the belief that it is yours.

Whether in Bolshevism, Fascism, or Nazism, we meet continually with the forcible and ruthless usurpation of the power of the State by a minority drawn from the masses, resting on their support, flattering them and threatening them at the same time; a minority led by a charismatic leader and brazenly identifying itself with the State. It is a tyranny that does away with all the guarantees of the constitutional State, constituting as the only party the minority that has created it, furnishing that party with far-reaching judicial and administrative functions, and permitting within the whole life of the nation no groups, no activities, no opinions, no associations or religions, no publications, no educational institutions, no business transactions, that are not dependent on the will of the Government.

The Africans and the underdeveloped peoples, contrary to what is commonly believed, are quick to build a social and political consciousness. The danger is that very often they reach the stage of social consciousness before reaching the national phase. In this case the underdeveloped countries’ violent calls for social justice are combined, paradoxically enough, with an often primitive tribalism. The underdeveloped peoples behave like a starving population—which means that the days of those who treat Africa as their playground are strictly numbered. In other words, their power cannot last forever. A bourgeoisie that has only nationalism to feed the people fails in its mission and inevitably gets tangled up in a series of trials and tribulations. If nationalism is not explained, enriched, and deepened, if it does not very quickly turn into a social and political consciousness, into humanism, then it leads to a dead end. A bourgeois leadership of the underdeveloped countries confines the national consciousness to a sterile formalism. Only the massive commitment by men and women to judicious and productive tasks gives form and substance to this consciousness.

Always have these two principles in readiness. First, to do only what the reason inherent in kingly and judicial power prescribes for the benefit of mankind. Second, to change your ground, if in fact there is someone to correct and guide you away from some notion.

Empires are synonymous with centralized—if occasionally schismatized—hierarchical power structures in which influence is restricted to an economically privileged class retaining its advantages through—usually—a judicious use of oppression and skilled manipulation of both the society’s information dissemination systems and its lesser—as a rule nominally independent—power systems. In short, it’s all about dominance.

Woodrow Wilson would write approvingly in his 1908 book, Constitutional Government in the United States, that “the War between the States established… this principle, that the federal government is, through its courts, the final judge of its own powers.” 26 This was the Jeffersonians’ greatest fear. Thanks to Lincoln's war, states’ rights would no longer perform its most important function: protecting the citizens of the states from federal judicial tyranny.

If logic and reason, the hard, cold products of the mind, can be relied upon to deliver justice or produce the truth, how is it that these brain-heavy judges rarely agree? Five-to-four decisions are the rule, not the exception. Nearly half of the court must be unjust and wrong nearly half of the time. Each decision, whether the majority or minority, exudes logic and reason like the obfuscating ink from a jellyfish, and in language as opaque. The minority could have as easily become the decision of the court. At once we realize that logic, no matter how pretty and neat, that reason, no matter how seemingly profound and deep, does not necessarily produce truth, much less justice. Logic and reason often become but tools used by those in power to deliver their load of injustice to the people. And ultimate truth, if, indeed, it exists, is rarely recognizable in the endless rows of long words that crowd page after page of most judicial regurgitations.

Capitalism differs from other social forms because producers depend on the market for access to the means of production (unlike, for instance, peasants, who remain in direct, non-market possession of land); while appropriators cannot rely on 'extra-economic' powers of appropriation by means of direct coercion - such as the military, political and judicial powers that enable feudal lords to extract surplus labour from peasants - but must depend on the purely 'economic' mechanisms of the market. This distinct system of market dependence means that the requirements of competition and profit-maximization are the fundamental roles of life. Because of these rules, capitalism is a system uniquely driven to improve the productivity of labour by technical means. Above all, it is a system in which the bulk of society's work is done by propertyless labourers who are obliged to sell their labour-power in exchange for a wage in order to gain access to the means of life and of labour itself.

Some words have more power than we can imagines. Use your words judiciously.

Three circumstances seem to me to contribute more than all others to the maintenance of the democratic republic in the United States. The first is that federal form of government which the Americans have adopted, and which enables the Union to combine the power of a great republic with the security of a small one. The second consists in those township institutions which limit the despotism of the majority and at the same time impart to the people a taste for freedom and the art of being free. The third is to be found in the constitution of the judicial power. I have shown how the courts of justice serve to repress the excesses of democracy, and how they check and direct the impulses of the majority without stopping its activity.

Although the delegates appear to have assumed that the federal courts would exercise some form of judicial review over federal and state laws, Article III says nothing explicit on the subject. It states in broad terms that the federal courts’ judicial power “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties.

majority described the pressure on the Court and explained why “principles of institutional integrity” required that Roe v. Wade be reaffirmed. A “terrible price would be paid for overruling,” the three justices wrote, adding that such a step “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.

EXECUTIVE, n. An officer of the Government, whose duty it is to enforce the wishes of the legislative power until such time as the judicial department shall be pleased to pronounce them invalid and of no effect.

LEXICOGRAPHER, n. A pestilent fellow who, under the pretense of recording some particular stage in the development of a language, does what he can to arrest its growth, stiffen its flexibility and mechanize its methods. For your lexicographer, having written his dictionary, comes to be considered "as one having authority," whereas his function is only to make a record, not to give a law. The natural servility of the human understanding having invested him with judicial power, surrenders its right of reason and submits itself to a chronicle as if it were a statue. Let the dictionary (for example) mark a good word as "obsolete" or "obsolescent" and few men thereafter venture to use it, whatever their need of it and however desirable its restoration to favor — whereby the process of improverishment is accelerated and speech decays. On the contrary, recognizing the truth that language must grow by innovation if it grow at all, makes new words and uses the old in an unfamiliar sense, has no following and is tartly reminded that "it isn't in the dictionary" — although down to the time of the first lexicographer (Heaven forgive him!) no author ever had used a word that was in the dictionary. In the golden prime and high noon of English speech; when from the lips of the great Elizabethans fell words that made their own meaning and carried it in their very sound; when a Shakespeare and a Bacon were possible, and the language now rapidly perishing at one end and slowly renewed at the other was in vigorous growth and hardy preservation — sweeter than honey and stronger than a lion — the lexicographer was a person unknown, the dictionary a creation which his Creator had not created him to create.

The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution, – it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and the Congress has not.” “The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation, – the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity...” “The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers... We are impatient of state legislatures because they seem to us less representative of the thoughtful opinion of the country than Congress is. We know that our legislatures do not think alike, but we are not sure that our people do not think alike...

To the bankrupt poet, to the jilted lover, to anyone who yearns to elude the doubt within and the din without, the tidal strait between Manhattan Island and her favorite suburb offers the specious illusion of easy death. Melville prepared for the plunge from the breakwater on the South Street promenade, Whitman at the railing of the outbound ferry, both men redeemed by some Darwinian impulse, maybe some epic vision, which enabled them to change leaden water into lyric wine. Hart Crane rejected the limpid estuary for the brackish swirl of the Caribbean Sea. In each generation, from Washington Irving’s to Truman Capote’s, countless young men of promise and talent have examined the rippling foam between the nation’s literary furnace and her literary playground, questioning whether the reams of manuscript in their Brooklyn lofts will earn them garlands in Manhattan’s salons and ballrooms, wavering between the workroom and the water. And the city had done everything in its power to assist these men, to ease their affliction and to steer them toward the most judicious of decisions. It has built them a bridge.

I had lived through four revolutions on three continents. Whether in Iran, West Africa, or Haiti, all shared common characteristics, and all taught me lessons about dictators and authoritarians and their hunger to consolidate power and obtain, or at least convey legitimacy. That quest for legitimacy played out in a host of ways. One was the desire to manipulate, control, or discredit media. A relentless distortion of reality numbs a country’s populace to outrage and weakens its ability to discern truth from fiction. Another way dictators sought to secure power and legitimacy was by co-opting the power of the state, its military, law enforcement, and judicial systems, to carry out personal goals and vendettas rather than the nation’s needs. Still, another was by undermining dissent, questioning the validity of opposition, and refusing to honor public will, up to and including threatening or preventing the peaceful transfer of power.

If American society judiciously modelled the traditions of the various Native nations, the place of women in society would be central, the distribution of goods and power would be egalitarian, the elderly would be respected, honoured and protected as a primary social and cultural resource, the ideals of physical beauty would be considerably enlarge (the include "fat", strong-featured women, grey-haired and wrinkled individuals and others who in contemporary american culture are viewed as "ugly")

The Supreme Court, the final arbiter of legal conflicts, reviews, acts of the executive and Congress. With this power, the Court is seen as a political institution as well. "Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power," Joaquin Bernas, a Jesuit priest and constitutionalist, said.

now there are three things in all states which a careful legislator ought well to consider, which are of great consequence to all, and which properly attended to the state must necessarily be happy; and according to the variation of which the one will differ from the other. The first of these is the [1298a] public assembly; the second the officers of the state, that is, who they ought to be, and with what power they should be entrusted, and in what manner they should be appointed; the third, the judicial department.

Principles of Liberty 1. The only reliable basis for sound government and just human relations is Natural Law. 2. A free people cannot survive under a republican constitution unless they remain virtuous and morally strong. 3. The most promising method of securing a virtuous and morally strong people is to elect virtuous leaders. 4. Without religion the government of a free people cannot be maintained. 5. All things were created by God, therefore upon him all mankind are equally dependent, and to Him they are equally responsible. 6. All men are created equal. 7. The proper role of government is to protect equal rights, not provide equal things. 8. Men are endowed by their Creator with certain unalienable rights. 9. To protect man's rights, God has revealed certain principles of divine law. 10. The God-given right to govern is vested in the sovereign authority of the whole people. 11. The majority of the people may alter or abolish a government which has become tyrannical. 12. The United States of America shall be a republic. 13. A constitution should be structured to permanently protect the people from the human frailties of their rulers. 14. Life and Liberty are secure only so long as the Igor of property is secure. 15. The highest level of securitiy occurs when there is a free market economy and a minimum of government regulations. 16. The government should be separated into three branches: legislative, executive, and judicial. 17. A system of checks and balances should be adopted to prevent the abuse of power. 18. The unalienable rights of the people are most likely to be preserved if the principles of government are set forth in a written constitution. 19. Only limited and carefully defined powers should be delegated to the government, all others being retained by the people. 20. Efficiency and dispatch require government to operate according to the will of the majority, but constitutional provisions must be made to protect the rights of the minority. 21. Strong human government is the keystone to preserving human freedom. 22. A free people should be governed by law and not by the whims of men. 23. A free society cannot survive a republic without a broad program of general education. 24. A free people will not survive unless they stay strong. 25. "Peace, commerce, and honest friendship with all nations; entangling alliances with none." 26. The core unit which determines the strength of any society is the family; therefore, the government should foster and protect its integrity. 27. The burden of debt is as destructive to freedom as subjugation by conquest. 28. The United States has a manifest destiny to be an example and a blessing to the entire human race.

No doubt the odds are against dissenters in any nation’s judicial system. But human beings are not machines, and however powerful the pressure to conform, they sometimes are so moved by what they see as injustice that they dare to declare their independence. In that historical possibility lies hope.

Equal justice is forgotten in our current judicial system. Wealth, power, and prestige protect the ruling class. The counterfeiters, the warmongers, and the thieves who steal from the treasury go free. Our prisons are filled will nonviolent drug users and disproportionately by minorities and the poor.

The difference between the past and the present is that individual freedom and security no longer fall to be protected solely through the D vehicle of common-law maxims and presumptions which may be altered or repealed by statute, but are now protected by entrenched constitutional provisions which neither the Legislature nor the Executive may abridge. It would accordingly be improper for us to hold constitutional a system which, as Sachs J has noted, confers on creditors the power to consign the person of an impecunious debtor to prison at will and without the interposition at the crucial time of a judicial officer.

When I forget that the only way that God could stand to have me in his family was by crushing the Son he loves-that without the perfect record of someone else I could not stand before his judicious holiness, that on my own I do not have within me either the desire or the power to please God-I am tempted to believe that I'm really pretty good. And although I might need a nip or tuck, if I try hard enough, I can accomplish all he has called me to. It's when we forget the gospel, when we think we're not really all that bad, not so much in need, not so far from Christlikeness, that pride, arrogance, and the inevitable guilt crush hope and faith.

The misuse of history to condemn evils common around the world as if they were peculiarities of the West has serious practical implications. Two wrongs do not make a right but undermining the society which has the smaller evil only makes it more vulnerable to the greater evils in other societies and in international terrorist networks. Far more is involved than questions of objectivity or honesty, important as such questions are. Without understanding the features of one’s own society that have provided a prosperity, a freedom, and a security rare to non-existent over much of the rest of the world, one risks losing by default all these things for oneself and posterity. American society is one whose underlying bases are always under attack by both internal opportunists and external enemies. Those who have no conception of the Constitution of the United States, except as an object of nit-picking, cannot be expected to defend its integrity against the inevitable encroachments of political opportunists and judicial power-seekers. Those who have no conception of the unique heritage of Western civilization have no idea what losing that heritage would mean – to them and to generations yet unborn – and why it must be defended against passing fads at home and lethal threats from abroad.

Modern governments actually spend relatively little on programs and systems that benefit all citizens, such as national defense or the judicial system; mainly they are concerned with infringing on the property rights of one (less politically powerful) group of citizens for the benefit of another (more politically powerful) group.

This balance, I think, is what Elaine Aron would say is our natural state of being, at least in Indo-European cultures like ours, which she observes have long been divided into “warrior kings”and “priestly advisers,”into the executive branch and the judicial branch, into bold and easy FDRs and sensitive, conscientious Eleanor Roosevelts.

The combination in the same hands of the power to make the laws and the power to carry them out is the essence of arbitrary rule by decree, the founders believed, guided by such writers as the Baron de Montesquieu, John Locke, and William Blackstone. For them, the separation of powers was key to the protection of liberty from such tyranny, Thomas writes. The Constitution vested all legislative power in Congress, all executive power in the president, and all judicial power in the Supreme Court and inferior courts, because the framers did not want to have those powers delegated to other hands, lest it bring about the “gradual concentration of the several powers in the same department,” as Madison put it in Federalist 51.

One instance of this failure is the case of smoke, as well as air pollution generally. In so far as the outpouring of smoke by factories pollutes the air and damages the persons and property of others, it is an invasive act. It is equivalent to an act of vandalism and in a truly free society would have been punished after court action brought by the victims. Air pollution, then, is not an example of a defect in a system of absolute property rights, but of failure on the part of the government to preserve property rights. Note that the remedy, in a free society, is not the creation of an administrative State bureau to prescribe regulations for smoke control. The remedy is judicial action to punish and proscribe pollution damage to the person and property of others.48 In

The joy of life is living, is to put out all one's powers as far as they will go; that the measure of power is obstacle overcome; to ride boldly at what is in front of you, be it fence or enemy; to pray, not for comfort, but for combat; to keep the soldier's faith against the doubts of civil life, more besetting and harder to overcome than all the misgivings of the battle-field, and to remember that duty is not to be proved in the evil day, but then to be obeyed unquestioning; to love glory than the temptations of wallowing ease, but to know that one's final judge and only rival is oneself: with all our failures in act and thought, these things we learned from noble enemies in Virginia or Georgia or on the Mississippi, thirty years ago; these things we believe to be true.

Leadership Philosophy: Understand where we have been; focus on the present and plan for the future. Everything has a triangle which encompasses three major points. Discipline, Competence and Trust comprise the first triangle. Trust was the base of the triangle. We were expected to be able to look in the mirror, not out the window. Confidence and familiarity with even the smallest tasks established this. Competence was next. There was always an expectation to focus on the fundamentals, understand the psychology of war, and do the right thing. The final and most crucial ingredient was discipline; discipline in yourself and in your soldiers. To Lieutenant Colonel Bolduc, discipline was not about power, it was about the judicious use of authority and responsibility. Special Forces had a boatload of both.

The decision’s significance, of course, lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall declared—a line that the Court has invoked throughout its history, down to the present. In the guise of modestly disclaiming authority to act, the Court had assumed for itself great power.

I was starting to remember the whole problem now: I hate these fucking people [people at Tea Party rallies, ed]. It's never been just political, it's personal. I'm not convinced anyone in this country except the kinds of weenies who thought student council was important really cares about large versus small government or strict constructionalism versus judicial activism. The ostensible issues are just code words in an ugly snarl of class resentment, anti-intellectualism, old-school snobbery, racism, and who knows what else - grudges left over from the Civil War, the sixties, gym class. The Tea Party likes to cite a poll showing that their members are wealthier and better educated than te general populace, but to me they mostly looked like the same people I'd had to listen to in countless dive bars railing against "edjumicated idiots" and explaining exactly how Nostradamus predicted 9/11, the very people I and everyone I know fled our hometowns to get away from. So far all my interactions at the rally were only reinforcing my private theory - I suppose you might call it a prejudice - that liberals are the ones who went to college, moved to the nearest city where no one would call them a fag, and now only go back for holidays; conservatives are the ones who married their high school girlfriends, bought houses in their hometowns, and kept going to church and giving a shit who won the homecoming game. It's the divide between the Got Out and the Stayed Put. This theory also account for the different reactions of these two camps when the opposition party takes power, raising the specter of either fascist or socialist tyranny: the Got Outs always fantasize about fleeing the country for someplace more civilized - Canada, France, New Zealand; the Stayed Put just di further in, hunkering down in compounds, buying up canned goods and ammo.

I found this method safest for myself and very embarrassing to those against whom I used it; therefore I took a delight in it, practis'd it continually, and grew very artful and expert in drawing people, even of superior knowledge, into concessions, the consequences of which they did not foresee, entangling them in difficulties out of which they could not extricate themselves, and so obtaining victories that neither myself nor my cause always deserved. I continu'd this method some few years, but gradually left it, retaining only the habit of expressing myself in terms of modest diffidence; never using, when I advanced any thing that may possibly be disputed, the words certainly, undoubtedly, or any others that give the air of positiveness to an opinion; but rather say, I conceive or apprehend a thing to be so and so; it appears to me, or I should think it so or so, for such and such reasons; or I imagine it to be so; or it is so, if I am not mistaken. This habit, I believe, has been of great advantage to me when I have had occasion to inculcate my opinions, and persuade men into measures that I have been from time to time engag'd in promoting; and, as the chief ends of conversation are to inform or to be informed, to please or to persuade, I wish well-meaning, sensible men would not lessen their power of doing good by a positive, assuming manner, that seldom fails to disgust, tends to create opposition, and to defeat every one of those purposes for which speech was given to us, to wit, giving or receiving information or pleasure. For, if you would inform, a positive and dogmatical manner in advancing your sentiments may provoke contradiction and prevent a candid attention. If you wish information and improvement from the knowledge of others, and yet at the same time express yourself as firmly fix'd in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error. And by such a manner, you can seldom hope to recommend yourself in pleasing your hearers, or to persuade those whose concurrence you desire. Pope says, judiciously:           "Men should be taught as if you taught them not,           And things unknown propos'd as things forgot;" farther recommending to us "To speak, tho' sure, with seeming diffidence.

take care that your style and diction run musically, pleasantly, and plainly, with clear, proper, and well-placed words, setting forth your purpose to the best of your power, and putting your ideas intelligibly, without confusion or obscurity. Strive, too, that in reading your story the melancholy may be moved to laughter, and the merry made merrier still; that the simple shall not be wearied, that the judicious shall admire the invention, that the grave shall not despise it, nor the wise fail to

but merely to take care that your style and diction run musically, pleasantly, and plainly, with clear, proper, and well-placed words, setting forth your purpose to the best of your power, and putting your ideas intelligibly, without confusion or obscurity. Strive, too, that in reading your story the melancholy may be moved to laughter, and the merry made merrier still; that the simple shall not be wearied, that the judicious shall admire the invention, that the grave shall not despise it, nor the wise fail to praise it.

It always helps to have the referees on your side. Modern states possess various agencies with the authority to investigate and punish wrongdoing by both public officials and private citizens. These include the judicial system, law enforcement bodies, and intelligence, tax, and regulatory agencies. In democracies, such institutions are designed to serve as neutral arbiters. For would-be authoritarians, therefore, judicial and law enforcement agencies pose both a challenge and an opportunity. If they remain independent, they might expose and punish government abuse. It is a referee’s job, after all, to prevent cheating. But if these agencies are controlled by loyalists, they could serve a would-be dictator’s aims, shielding the government from investigation and criminal prosecutions that could lead to its removal from power. The president may break the law, threaten citizens’ rights, and even violate the constitution without having to worry that such abuse will be investigated or censured. With the courts packed and law enforcement authorities brought to heel, governments can act with impunity.

This divide is characterized by the demonization and privatization of public services, including schools, the military, prisons, and even policing; by the growing use of prison as our primary resolution for social contradictions; by the degradation and even debasement of the public sphere and all those who would seek to democratically occupy it; by an almost complete abandonment of the welfare state; by a nearly religious reverence for marketized solutions to public problems; by the growth of a consumer culture that repeatedly emphasizes the satisfaction of the self over the needs of the community; by the corruption of democracy by money and by monied interests, what Henry Giroux refers to as “totalitarianism with elections”;88 by the mockery of a judicial process already tipped in favor of the powerful; by the militarization of the police; by the acceptance of massive global inequality; by the erasure of those unconnected to the Internet-driven modern economy; by the loss of faith in the very notion of community; and by the shrinking presence of the radical voices, values, and vision necessary to resist this dark neoliberal moment.89

These decisions sparked a strong negative response from conservatives in Congress. In 2004, after the Atkins and Lawrence rulings, the chairman of the House Judiciary Committee, F. James Sensenbrenner, a Republican from Wisconsin, addressed the members of the Judicial Conference, gathered for their spring meeting at the Supreme Court. “Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our Founders, and threatens to undermine the legitimacy of the American judicial process,

It is in no way remarkable, and in no way a vindication of textual evolutionism, that taking power from the people and placing it instead with a judicial aristocracy can produce some creditable results that democracy might not achieve. The same can be said of monarchy and totalitarianism. But once a nation has decided that democracy, with all its warts, is the best system of government, the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is. Nonoriginalism, by contrast, imposes on society statutory prescriptions that were never democratically adopted.

How are we going to bring about these transformations? Politics as usual—debate and argument, even voting—are no longer sufficient. Our system of representative democracy, created by a great revolution, must now itself become the target of revolutionary change. For too many years counting, vast numbers of people stopped going to the polls, either because they did not care what happened to the country or the world or because they did not believe that voting would make a difference on the profound and interconnected issues that really matter. Now, with a surge of new political interest having give rise to the Obama presidency, we need to inject new meaning into the concept of the “will of the people.” The will of too many Americans has been to pursue private happiness and take as little responsibility as possible for governing our country. As a result, we have left the job of governing to our elected representatives, even though we know that they serve corporate interests and therefore make decisions that threaten our biosphere and widen the gulf between the rich and poor both in our country and throughout the world. In other words, even though it is readily apparent that our lifestyle choices and the decisions of our representatives are increasing social injustice and endangering our planet, too many of us have wanted to continue going our merry and not-so-merry ways, periodically voting politicians in and out of office but leaving the responsibility for policy decisions to them. Our will has been to act like consumers, not like responsible citizens. Historians may one day look back at the 2000 election, marked by the Supreme Court’s decision to award the presidency to George W. Bush, as a decisive turning point in the death of representative democracy in the United States. National Public Radio analyst Daniel Schorr called it “a junta.” Jack Lessenberry, columnist for the MetroTimes in Detroit, called it “a right-wing judicial coup.” Although more restrained, the language of dissenting justices Breyer, Ginsberg, Souter, and Stevens was equally clear. They said that there was no legal or moral justification for deciding the presidency in this way.3 That’s why Al Gore didn’t speak for me in his concession speech. You don’t just “strongly disagree” with a right-wing coup or a junta. You expose it as illegal, immoral, and illegitimate, and you start building a movement to challenge and change the system that created it. The crisis brought on by the fraud of 2000 and aggravated by the Bush administration’s constant and callous disregard for the Constitution exposed so many defects that we now have an unprecedented opportunity not only to improve voting procedures but to turn U.S. democracy into “government of the people, by the people, and for the people” instead of government of, by, and for corporate power.

the causes of poverty as put forth in the Bible are remarkably balanced. The Bible gives us a matrix of causes. One factor is oppression, which includes a judicial system weighted in favor of the powerful (Leviticus 19:15), or loans with excessive interest (Exodus 22:25-27), or unjustly low wages (Jeremiah 22:13; James 5:1-6). Ultimately, however, the prophets blame the rich when extremes of wealth and poverty in society appear (Amos 5:11-12; Ezekiel 22:29; Micah 2:2; Isaiah 5:8). As we have seen, a great deal of the Mosaic legislation was designed to keep the ordinary disparities between the wealthy and the poor from becoming aggravated and extreme. Therefore, whenever great disparities arose, the prophets assumed that to some degree it was the result of selfish individualism rather than concern with the common good.

Given the religious nature of the Middle Eastern culture, how might a Middle Eastern democracy [be] structured? Will there be three or four branches of government? Should a religious branch be added to the executive, legislative and judicial branches to ensure that Islamic beliefs and law are followed? A simple answer might be yes, but that is probably not the best means. Ideally, the legislative, executive and judicial bodies should all take Islamic beliefs into consideration when carrying out their duties. As such, there should be no need for a separate religious branch. However, to codify the major tenets of the Islamic faith, they should be represented in the constitution or similar document. This does not mean a theocracy will be established, rather it means that a democracy will be established built upon Islamic beliefs.

Why, for almost forty years now, have Aboriginal peoples won virtually every time they go to the Supreme Court? Because our history and the law, if fairly interpreted, cannot help but re-establish our long-standing – long betrayed – agreements. If I look for the leading constitutional voice of historical accuracy and ethical understanding in Canada over the last few decades, the sound is clear. It comes from the indigenous community and the Supreme Court’s rulings on Aboriginal issues. Some people protest that this is judicial interference in the political sphere. They are missing the point. It is happening because the political class and the civil service are not only not doing their job, they are acting badly. The indigenous community, on the other hand, is paying attention to our history and to our legal history. The Supreme Court is responding intelligently to this reality.

The mind is hurried out of itself, by a crowd of great and confused images; which affect because they are crowded and confused. For separate them, and you lose much of the greatness; and join them, and you infallibly lose the clearness. [...] But painting, when we have allowed for the pleasure of imitation, can only affect simply by the images it presents; and even in painting, a judicious obscurity in some things contributes to the effect of the picture; because the images in painting are exactly similar to those in nature; and in nature, dark, confused, uncertain images have a greater power on the fancy to form the grander passions, than those have which are more clear and determinate. But where and when this observation may be applied to practice, and how far it shall be extended, will be better deduced from the nature of the subject, and from the occasion, than from any rules that can be given.

In fact, only six days later, with Chief Justice Marshall not participating, the Court avoided a possible constitutional confrontation. Voting 5–0 in Stuart v. Laird (1803), the justices upheld Congress’s repeal of the Judiciary Act of 1801, a move some historians see as reflecting the Court’s unwillingness to test the full dimensions of the power it had just claimed for itself. More than half a century would pass before the Supreme Court again declared an act of Congress unconstitutional. That was the Dred Scott decision of 1857 (Scott v. Sandford), invalidating the Missouri Compromise and holding that Congress lacked authority to abolish slavery in the territories. That notorious decision, a step on the road to the Civil War, was perhaps not the best advertisement for judicial review. But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional more than 150 times.

Or, stated in a familiar way, increasing cognitive load* should make people more conservative. This is precisely the case. The time pressure of snap judgments is a version of increased cognitive load. Likewise, people become more conservative when tired, in pain or distracted with a cognitive task, or when blood alcohol levels rise. Recall from chapter 3 that willpower takes metabolic power, thanks to the glucose demands of the frontal cortex. This was the finding that when people are hungry, they become less generous in economic games. A real-world example of this is startling (see graph on previous page)—in a study of more than 1,100 judicial rulings, prisoners were granted parole at about a 60 percent rate when judges had recently eaten, and at essentially a 0 percent rate just before judges ate (note also the overall decline over the course of a tiring day). Justice may be blind, but she’s sure sensitive to her stomach gurgling.

The Constitutional Convention quickly agreed to the proposal of Governor Edmund Randolph of Virginia for a national government of three branches: legislative, executive, and judicial. Randolph’s resolution “that a national Judiciary be established” passed unanimously. Debating and defining the powers of Congress in Article I and of the president in Article II consumed much of the delegates’ attention and energy. Central provisions of Article III were the product of compromise and, in its fewer than five hundred words, the article left important questions unresolved. Lacking agreement on a role for lower courts, for example, the delegates simply left it to Congress to decide how to structure them. The number of justices remained unspecified. Article III itself makes no reference to the office of chief justice, to whom the Constitution (in Article I) assigns only one specific duty, that of presiding over a Senate trial in a presidential impeachment.

In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void. To appreciate the originality of this argument, we must recall that the country still lacked a federal judiciary. The state legislatures had been deemed the most perfect expression of the popular will and were supposed to possess supreme power. Mrs. Rutgers’s lawyers asserted state supremacy and said congressional action could not bind the New York legislature. At bottom, Rutgers v. Waddington addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or a loose federation of states? Hamilton left no doubt that states should bow to a central government: “It must be conceded that the legislature of one state cannot repeal the law of the United States.

Black life as despised humanity runs parallel to the life of Christ, who entered into socially rejected and scandalized life. The question about this poor Jew from Nazareth living under Roman oppression—“Can anything good come out of Nazareth?” (John 1:46)—demonstrates the extent to which Jesus was seen as an insignificant and punishable body. His body was one that could be grabbed at night without recourse and then run through an unjust judicial process. Like the thousands of black bodies that hung from trees, having been executed by the hands of white mobs, Jesus’ body was hung on that old rugged tree as a public spectacle of Rome. It was a death reserved for bandits and revolutionaries. That Jesus identified so intimately with “the wretched of the earth,” even to the point of death, should result in God’s church daring to see humanity from the perspective of God. To follow Jesus every day demands that we also must dare to interpret vulnerable and outcast bodies through the lens of the crucified Christ, through whom God’s wisdom and power is revealed.

The American idea was summed up in the most widely read pamphlet during the American Revolution, Thomas Paine’s Common Sense. In it, Paine explained, “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”30 Though animated by a deep distrust of authority, America’s Founding Fathers recognized nonetheless that society required a government. Otherwise, who would protect citizens from foreign threats, or violations of their rights by criminals at home? But they wrestled with a dilemma. A government powerful enough to perform its essential functions would tend toward tyranny. To manage this challenge, they designed, as Richard Neustadt taught us, a government of “separated institutions sharing power.”31 This deliberately produced constant struggle among the executive, legislative, and judicial branches that meant delay, gridlock, and even dysfunction. But it also provided checks and balances against abuse. As Justice Louis Brandeis explained eloquently, their purpose was “not to promote efficiency, but to preclude the exercise of arbitrary authority.”32

Article IV The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

There cannot be any hard and fast rules. But there can be suggestions and useful analogies. The most useful, to my mind, is that of the difference between the English and French judicial systems. In England (and America), the task of the court in criminal cases, which it devolves upon a jury, is to arrive at a verdict of ‘guilty’ or ‘not guilty’ on the evidence presented by prosecuting and defending counsel in turns. Trials are conflicts and verdicts are decisions; the two sides ‘win’ or ‘lose’. In France, and other countries which observe Roman Law, the task of the court in a criminal case is to arrive at the truth, as far as it can be perceived by human eyes, and the business of establishing the outlines of the truth falls not on a jury, which is strictly asked to enter a judgement, but upon a juge d’instruction. This officer of the court, unknown to English law, is accorded very wide powers of interrogation–of the suspect, his family, his associates–and of investigation–of the circumstances and scene of the crime–at which the suspect is often required to participate in a reconstruction. Only when the juge is satisfied that a crime has indeed occurred and that the suspect is responsible will he allow the case to go forward for prosecution. The character of these two different legal approaches is usually defined as ‘accusatorial’ (English) and ‘inquisitorial’ (French) respectively.

While I was intent on improving my language, I met with an English grammar (I think it was Greenwood's), at the end of which there were two little sketches of the arts of rhetoric and logic, the latter finishing with a specimen of a dispute in the Socratic method; and soon after I procur'd Xenophon's Memorable Things of Socrates, wherein there are many instances of the same method. I was charm'd with it, adopted it, dropt my abrupt contradiction and positive argumentation, and put on the humble inquirer and doubter. And being then, from reading Shaftesbury and Collins, become a real doubter in many points of our religious doctrine, I found this method safest for myself and very embarrassing to those against whom I used it; therefore I took a delight in it, practis'd it continually, and grew very artful and expert in drawing people, even of superior knowledge, into concessions, the consequences of which they did not foresee, entangling them in difficulties out of which they could not extricate themselves, and so obtaining victories that neither myself nor my cause always deserved. I continu'd this method some few years, but gradually left it, retaining only the habit of expressing myself in terms of modest diffidence; never using, when I advanced any thing that may possibly be disputed, the words certainly, undoubtedly, or any others that give the air of positiveness to an opinion; but rather say, I conceive or apprehend a thing to be so and so; it appears to me, or I should think it so or so, for such and such reasons; or I imagine it to be so; or it is so, if I am not mistaken. This habit, I believe, has been of great advantage to me when I have had occasion to inculcate my opinions, and persuade men into measures that I have been from time to time engag'd in promoting; and, as the chief ends of conversation are to inform or to be informed, to please or to persuade, I wish well-meaning, sensible men would not lessen their power of doing good by a positive, assuming manner, that seldom fails to disgust, tends to create opposition, and to defeat every one of those purposes for which speech was given to us, to wit, giving or receiving information or pleasure. For, if you would inform, a positive and dogmatical manner in advancing your sentiments may provoke contradiction and prevent a candid attention. If you wish information and improvement from the knowledge of others, and yet at the same time express yourself as firmly fix'd in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error. And by such a manner, you can seldom hope to recommend yourself in pleasing your hearers, or to persuade those whose concurrence you desire. Pope says, judiciously:           "Men should be taught as if you taught them not,           And things unknown propos'd as things forgot;" farther recommending to us "To speak, tho' sure, with seeming diffidence." And he might have coupled with this line that which he has coupled with another, I think, less properly, "For want of modesty is want of sense." If you ask, Why less properly? I must repeat the lines,           "Immodest words admit of no defense,           For want of modesty is want of sense." Now, is not want of sense (where a man is so unfortunate as to want it) some apology for his want of modesty? and would not the lines stand more justly thus?           "Immodest words admit but this defense,           That want of modesty is want of sense." This, however, I should submit to better judgments.

The belief that order must be intentionally generated and imposed upon society by institutional authorities continues to prevail. This centrally-directed model is premised upon what F.A. Hayek called “the fatal conceit,” namely, the proposition “that man is able to shape the world according to his wishes,”3 or what David Ehrenfeld labeled “the arrogance of humanism.”4That such practices have usually failed to produce their anticipated results has generally led not to a questioning of the model itself, but to the conclusion that failed policies have suffered only from inadequate leadership, or a lack of sufficient information, or a failure to better articulate rules. Once such deficiencies have been remedied, it has been supposed, new programs can be implemented which, reflective of this mechanistic outlook, will permit government officials to “fine tune” or “jump start” the economy, or “grow” jobs, or produce a “quick fix” for the ailing government school system. Even as modern society manifests its collapse in the form of violent crime, economic dislocation, seemingly endless warfare, inter-group hostilities, the decay of cities, a growing disaffection with institutions, and a general sense that nothing “works right” anymore, faith in the traditional model continues to drive the pyramidal systems. Most people still cling to the belief that there is something that can be done by political institutions to change such conditions: a new piece of legislation can be enacted, a judicial ruling can be ordered, or a new agency regulation can be promulgated. When a government-run program ends in disaster, the mechanistic mantra is invariably invoked: “we will find out what went wrong and fix it so that this doesn’t happen again.” That the traditional model itself, which is grounded in the state’s power to control the lives and property of individuals to desired ends, may be the principal contributor to such social disorder goes largely unexplored.

sure what happened after the accident was client-protected,” he told Mazzone. By their silence, “Markham and Gargan were taking the big fall to protect Ted Kennedy.” Paul Redmond doubted the lawyer-client issue would even arise at the inquest. “People were walking around Boston whaling the bee-jesus out of Paul Markham and Joe Gargan for not reporting the accident—that was so unfair. Here were two guys, good lawyers and fine men, made to look like stooges or worse by the press.” Gargan had told him he could not have reported an accident in which a driver faced a possible manslaughter charge, Redmond said. “It’s no secret Joe was a dear friend. When I left the U.S. Attorney’s office, Paul Markham took my spot.” A week before the inquest, Redmond bumped into Gargan in the elevator of the building in which both had law offices. The Boiler Room girls were “upstairs,” Redmond said. “They haven’t seen you in a long time. I think they’d like to say hello.” Gargan went straight to Redmond’s office for “a nice reunion, a pleasant chat. Very friendly.” There was no discussion about the inquest. Gargan did not want to become involved in the preparation of anybody else’s testimony. As one of two persons at the party who wasn’t “a bit bombed,” Gargan’s memory of the occasion was “clear as a bell.” So it was Gargan’s description of the party that, along with the Senator’s two public versions of the accident, would provide the scenario for inquest testimony. If Gargan testified to the Senator’s attempt to cover up his involvement in the accident as the reason he had failed to report it until the next day, he could blow the entire lid off the case. But that prospect became moot when a writ of certiorari was filed on Tuesday, September 2, asking the Massachusetts Supreme Judicial Court to determine whether “errors of law” had been made in Judge Boyle’s ruling on the conduct of the scheduled inquest in re: Mary Jo Kopechne. Justice Paul Reardon scheduled a hearing for three o’clock. Notified an appeal had been filed,

Just as, in the eyes of the liberal, the state is not the highest ideal, so it is also not the best apparatus of compulsion. The metaphysical theory of the state declares— approaching, in this respect, the vanity and presumption of the absolute monarchs— that each individual state is sovereign, i.e., that it represents the last and highest court of appeals. But, for the liberal, the world does not end at the borders of the state. In his eyes, whatever significance national boundaries have is only incidental and subordinate. His political thinking encompasses the whole of mankind. The starting-point of his entire political philosophy is the conviction that the division of labor is international and not merely national. He realizes from the very first that it is not sufficient to establish peace within each country, that it is much more important that all nations live at peace with one another. The liberal therefore demands that the political organization of society be extended until it reaches its culmination in a world state that unites all nations on an equal basis. For this reason he sees the law of each nation as subordinate to international law, and that is why he demands supranational tribunals and administrative authorities to assure peace among nations in the same way that the judicial and executive organs of each country are charged with the maintenance of peace within its own territory. For a long time the demand for the establishment of such a supranational world organization was confined to a few thinkers who were considered utopians and went unheeded. To be sure, after the end of the Napoleonic Wars, the world repeatedly witnessed the spectacle of the statesmen of the leading powers gathered around the conference table to arrive at a common accord, and after the middle of the nineteenth century, an increasing number of supranational institutions were established, the most widely noted of which are the Red Cross and the International Postal Union. Yet all of this was still a very far cry from the creation of a genuine supranational organization.

questioning the lawfulness of a long-standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as “Jerusalem” rather than “Israel or Jordan” in his passport.43 The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as “Israel” if the citizen so wished. Did the statute unconstitutionally interfere with the President’s power to conduct foreign affairs?44 The lower courts had decided that the case presented an unreviewable political question.45 But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.

But nothing in my previous work had prepared me for the experience of reinvestigating Cleveland. It is worth — given the passage of time — recalling the basic architecture of the Crisis: 121 children from many different and largely unrelated families had been taken into the care of Cleveland County Council in the three short months of the summer of 1987. (p18) The key to resolving the puzzle of Cleveland was the children. What had actually happened to them? Had they been abused - or had the paediatricians and social workers (as public opinion held) been over-zealous and plain wrong? Curiously — particularly given its high profile, year-long sittings and £5 million cost — this was the one central issue never addressed by the Butler-Sloss judicial testimony and sifting of internal evidence, the inquiry's remit did not require it to answer the main question. Ten years after the crisis, my colleagues and I set about reconstructing the records of the 121 children at its heart to determine exactly what had happened to them... (p19) Eventually, though, we did assemble the data given to the Butler-Sloss Inquiry. This divided into two categories: the confidential material, presented in camera, and the transcripts of public sessions of the hearings. Putting the two together we assembled our own database on the children each identified only by the code-letters assigned to them by Butler-Sloss. When it was finished, this database told a startlingly different story from the public myth. In every case there was some prima fade evidence to suggest the possibility of abuse. Far from the media fiction of parents taking their children to Middlesbrough General Hospital for a tummy ache or a sore thumb and suddenly being presented with a diagnosis of child sexual abuse, the true story was of families known to social services for months or years, histories of physical and sexual abuse of siblings and of prior discussions with parents about these concerns. In several of the cases the children themselves had made detailed disclosures of abuse; many of the pre-verbal children displayed severe emotional or behavioural symptoms consistent with sexual abuse. There were even some families in which a convicted sex offender had moved in with mother and children. (p20)

Sometimes, as in the case of the copper companies, the nationalizations were achieved through legislation that won overwhelming support. (By now, no one in Chile loved the American companies; even the head of Chile’s Roman Catholic bishops declared that nationalization was right and just.) At other times the methods skirted or even overstepped the bounds of legality. The government would simply approve the seizures of farms and factories, one of those “loopholes” Allende was relying on. Perhaps the most important—and pernicious—method was by squeezing the companies economically, as he tried to do with El Mercurio. The government had the authority to approve price hikes and wage increases. Companies that were targets for takeovers were prohibited from raising their prices but were forced to raise their workers’ pay. Moreover, as the government extended its control of the banks, credit for distressed companies dried up. Forced bankruptcies were a favorite tool of Allende’s Socialists. And who was there to run these companies once they were taken over? Ambassador Davis reports: “Government-appointed managers were usually named on the basis of a political patronage system that would have put Tammany Hall to shame.” Many formerly profitable companies were soon incurring heavy losses. In the countryside, where peasants—often illiterate—were seizing control of the estates, there was resistance even to the simplest methods of accounting and cost calculation. As Allende told Debray, “We shall have real power when copper and steel are under our control, when saltpeter is genuinely under our control, when we have put far-reaching land reform measures into effect, when we control imports and exports through the state, when we have collectivized a major portion of our national production.” But it wasn’t just the economy that Allende was trying to control. He was also taking steps to centralize the government and restrict political freedom. He saw his most important political reform as replacing the bicameral legislature with a single chamber in order to strengthen the presidency and weaken congress’s ability to block his objectives. It would also have the power to override judicial decisions. He called the proposed new body the “People’s Assembly,” but he never gained sufficient support from the “people” to call a plebiscite on the question.

I continu'd this method some few years, but gradually left it, retaining only the habit of expressing myself in terms of modest diffidence; never using, when I advanced any thing that may possibly be disputed, the words certainly, undoubtedly, or any others that give the air of positiveness to an opinion; but rather say, I conceive or apprehend a thing to be so and so; it appears to me, or I should think it so or so, for such and such reasons; or I imagine it to be so; or it is so, if I am not mistaken. This habit, I believe, has been of great advantage to me when I have had occasion to inculcate my opinions, and persuade men into measures that I have been from time to time engag'd in promoting; and, as the chief ends of conversation are to inform or to be informed, to please or to persuade, I wish well-meaning, sensible men would not lessen their power of doing good by a positive, assuming manner, that seldom fails to disgust, tends to create opposition, and to defeat every one of those purposes for which speech was given to us, to wit, giving or receiving information or pleasure. For, if you would inform, a positive and dogmatical manner in advancing your sentiments may provoke contradiction and prevent a candid attention. If you wish information and improvement from the knowledge of others, and yet at the same time express yourself as firmly fix'd in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error. And by such a manner, you can seldom hope to recommend yourself in pleasing your hearers, or to persuade those whose concurrence you desire. Pope says, judiciously: "Men should be taught as if you taught them not, And things unknown propos'd as things forgot;" farther recommending to us "To speak, tho' sure, with seeming diffidence." And he might have coupled with this line that which he has coupled with another, I think, less properly, "For want of modesty is want of sense." If you ask, Why less properly? I must repeat the lines, "Immodest words admit of no defense, For want of modesty is want of sense." Now, is not want of sense (where a man is so unfortunate as to want it) some apology for his want of modesty? and would not the lines stand more justly thus? "Immodest words admit but this defense, That want of modesty is want of sense." This, however, I should submit to better judgments.

Power is seeping away from autocrats and single-party systems whether they embrace reform or not. It is spreading from large and long-established political parties to small ones with narrow agendas or niche constituencies. Even within parties, party bosses who make decisions, pick candidates, and hammer out platforms behind closed doors are giving way to insurgents and outsiders—to new politicians who haven’t risen up in the party machine, who never bothered to kiss the ring. People entirely outside the party structure—charismatic individuals, some with wealthy backers from outside the political class, others simply catching a wave of support thanks to new messaging and mobilization tools that don’t require parties—are blazing a new path to political power. Whatever path they followed to get there, politicians in government are finding that their tenure is getting shorter and their power to shape policy is decaying. Politics was always the art of the compromise, but now politics is downright frustrating—sometimes it feels like the art of nothing at all. Gridlock is more common at every level of decision-making in the political system, in all areas of government, and in most countries. Coalitions collapse, elections take place more often, and “mandates” prove ever more elusive. Decentralization and devolution are creating new legislative and executive bodies. In turn, more politicians and elected or appointed officials are emerging from these stronger municipalities and regional assemblies, eating into the power of top politicians in national capitals. Even the judicial branch is contributing: judges are getting friskier and more likely to investigate political leaders, block or reverse their actions, or drag them into corruption inquiries that divert them from passing laws and making policy. Winning an election may still be one of life’s great thrills, but the afterglow is diminishing. Even being at the top of an authoritarian government is no longer as safe and powerful a perch as it once was. As Professor Minxin Pei, one of the world’s most respected experts on China, told me: “The members of the politburo now openly talk about the old good times when their predecessors at the top of the Chinese Communist Party did not have to worry about bloggers, hackers, transnational criminals, rogue provincial leaders or activists that stage 180,000 public protests each year. When challengers appeared, the old leaders had more power to deal with them. Today’s leaders are still very powerful but not as much as those of a few decades back and their powers are constantly declining.”3

Authorities this broad give the national security bureaucracy the power to scrutinize the personal lives of every law-abiding American. Allowing that to continue is a grave error that demonstrates a willful ignorance of human nature. Moreover, it demonstrates a complete disregard for the responsibilities entrusted to us by the Founding Fathers to maintain robust checks and balances on the power of any arm of the government. That obviously raises some very serious questions. What happens to our government, our civil liberties and our basic democracy if the surveillance state is allowed to grow unchecked? As we have seen in recent days, the intelligence leadership is determined to hold on to this authority. Merging the ability to conduct surveillance that reveals every aspect of a person’s life with the ability to conjure up the legal authority to execute that surveillance, and finally, removing any accountable judicial oversight, creates the opportunity for unprecedented influence over our system of government.

As a young officer, it is very frustrating," recalls David Silverman. "My tour in Iraq in 2005, 2006-early on, we got a target list by the higher powers that said, 'This person is a bad person, you should take out the bad guy.' We planned, executed and were able to capture this person and turn him into the judicial system for prosecution. And then, literally five months later, the same target package ends up on my desk again. I said, 'Wait a minute, I just risked life and limb to go find this guy.'

the creative power of the judicial system in shaping the law cannot be overlooked entirely. This factor needs to be consciously accepted as one of the elements  in shaping the legal system and the laws, however, without least opposing the Supremacy of the Sovereign statutes promulgated in the land.The chasm in the contemporaneous legal scheme and the legislation in Oman harbingers for such a practice to secure the ends of justice, probability of decisions to be given primacy rather than approximation to a model format.

We have had campaign-finance reform, and reform of the seniority system in Congress, and endless rounds of anticorruption measures in the federal government. Calls for “transparency” and “accountability” have meant more administrative and judicial supervision. In turn, power flows to impersonal institutions (agency review boards, courts, and so on) and away from elected leaders who can get things done—and who can be punished at the ballot box for delay and disappointment.

The danger of an administrative return to an extralegal regime becomes particularly concrete when one recognizes the potential for evasion. Administrative law evades not only the law but also its institutions, processes, and rights. The central evasion is the end run around acts of Congress and the judgments of the courts by substituting executive edicts. This suggests that there can be an alternative system of law, which is not quite law, but that nonetheless can be enforced against the public. As if this were not enough, the evasion also gets around the Constitution’s institutions and processes. For example, when the executive makes regulations, it claims to escape the constitutional requirements for the election of lawmakers, for bicameralism, for deliberation, for publication of legislative journals, and for a veto. Similarly, when the executive adjudicates disputes, it claims to sidestep most of the requirements about judicial independence, due process, grand juries, petit juries, and judicial warrants and orders. The judicial evasion is particularly troubling when one realizes that it escapes almost all of the procedural rights guaranteed by the Constitution. Recognizing at least the due process problem, courts and commentators sometimes suggest that administrative adjudication is subject to a lesser, administrative version of due process. It remains unclear, however, how a fraction of a right can substitute for the whole, or how the due process of administrative power in an administrative tribunal can substitute for the due process of law in a court. This is like a substitution of water for whisky, and the fact that both are liquid does not hide the evasion.

On behalf of the deference under the Administrative Procedure Act, it is said that Congress is not constitutionally barred from authorizing deference—as if Congress can detract from the office of the judges. The office of the judges, however, was an element of the Constitution’s grant of judicial power, and it required the judges to exercise independent judgment in accord with the law of the land. Put another way, when the Constitution authorized judicial power, it took for granted that judges, by their nature, had such a duty.19 This judicial duty was recognized very early, because it was the foundation of what nowadays is called “judicial review.” When writing about the judicial power of North Carolina in 1786, James Iredell explained: “The duty of the power I conceive, in all cases, is to decide according to the laws of the state,” and as “the constitution is a law of the state,” a statute “inconsistent with the constitution is void.” Or as put by John Marshall in Marbury v. Madison, where “both the law and the constitution apply to a particular case” the court “must determine which of these conflicting rules governs the case,” this being “of the very essence of judicial duty.”20 Judicial review, in other words, is entailed by judicial duty—a duty that accompanies judicial power and that requires judges to exercise their own independent judgment in following the law. And another result of this duty is that a mere statute cannot justify the judges in abandoning their independent judgment or in following extralegal rules or interpretations. As if this were not enough, the U.S. Constitution adds that no person shall be “deprived of life, liberty, or property, without due process of law.” If this means anything, it surely requires a judge not to defer to one of the parties, let alone to defer systematically to the government. Nonetheless, on the basis of a mere statute, the judges generally defer. The next step is to examine the varieties

The alienation of Americans from the democratic process has also eroded knowledge of the most basic facts about our constitutional architecture of checks and balances. When the Annenberg Public Policy Center at the University of Pennsylvania conducted a broad survey on our Constitution, released in September 2006, they found that more than a third of the respondents believed the executive branch has the final say on all issues and can overrule the legislative and judicial branches. Barely half—53 percent—believed that the president was required to follow a Supreme Court decision with which he disagreed. Similarly, only 55 percent of those questioned believed that the Supreme Court had the power to declare an act of Congress unconstitutional. Another study found that the majority of respondents did not know that Congress—rather than the president—has the power to declare war. The Intercollegiate Studies Institute conducted a study in 2005 of what our nation’s college students knew about the Constitution, American government, and American history that provoked the American Political Science Association Task Force on Civic Education to pronounce that it is “axiomatic that current levels of political knowledge, political engagement, and political enthusiasm are so low as to threaten the vitality and stability of democratic politics in the United States.” The study found that less than half of college students “recognized that the line ‘We hold these truths to be self-evident, that all men are created equal’ is from the Declaration of Independence.” They also found that “an overwhelming majority, 72.8 percent, could not correctly identify the source of the idea of ‘a wall of separation’ between church and state.” When the John S. and James L. Knight Foundation conducted a survey of high school students to determine their feelings toward the First Amendment, they found that “after the text of the First Amendment was read to students, more than a third of them (35 percent) thought that the First Amendment goes too far in the rights it guarantees. Nearly a quarter (21 percent) did not know enough about the First Amendment to even give an opinion. Of those who did express an opinion, an even higher percentage (44 percent) agreed that the First Amendment goes too far in the rights it guarantees.” The survey revealed that “nearly three-fourths” of high school students “either don’t know how they feel about [the First Amendment] or they take it for granted.

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States; —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Pope Demotes U.S. Cardinal Critical of His Reform Agenda By JIM YARDLEY ROME — Pope Francis on Saturday sidelined a powerful American cardinal who has emerged as an unabashed conservative critic of the reform agenda and the leadership style that the Argentine pontiff has brought to the Roman Catholic Church. In an expected move, Cardinal Raymond L. Burke was officially removed as head of the Vatican’s highest judicial authority, known as the Supreme Tribunal of the Apostolic Signatura. He was demoted to the ceremonial position of chaplain for the Knights of Malta, a charity group.

the American system of checks and balances disperses federal lawmaking authority among multiple, overlapping political forums. As a result, federal policymaking power is shared: Congress is given the primary power to draft laws, subject to the president's veto and judicial review; the executive branch is given the primary power to implement laws, subject to congressional oversight and judicial review; and the courts have the primary power to interpret laws, subject to a variety of legislative and executive checks, including the appointment process, budgetary powers, and the passage of "overrides"-laws that explicitly reverse or materially modify existing judicial interpretations of statutes.

Holmes believed that law is nothing more than the commitment to use force in the service of collective norms, which are merely the subjective preferences of a majority of the people. There are no “transcendental” principles of law, because law “does not exist without some definite authority behind it.”74 To suppose that it has any deeper meaning than the ruler’s arbitrary command, he said, is “churning the void in the hope of making cheese.”75 The idea that people have certain rights at all times and in all places is absurd: rights are only what a society’s power-wielders choose to allow. “All my life I have sneered at the natural rights of man,” he told a friend, and he meant it.76 His judicial writings were guided by the view that law is only an expression of power in a universe devoid of other meaning.

We the people have more power than we know, and we must learn to use it judiciously.

Over one thousand people live within these walls. The Vatican issues its own coins, postage stamps and has its own postal service. The head of state is his holiness Pope Benedict XVI. He is the 265th Pope of the Roman catholic church. He has full legislative and judicial powers with freedom under the Lateran treaty to organize his armed forces. He is also free to move or live through Italy as he should so desire.

It is difficult to overstate the extent to which congressionally bestowed retroactive immunity represents a profound departure from basic norms of justice. Ordinary Americans are sued every day and forced to endure the severe hardships and sometimes ruinous costs of litigation. When that happens, it is the role of the courts alone to determine who is at fault and whether liability should be imposed. The Constitution vests “the judicial Power of the United States” in courts, not Congress. And when it comes to lawsuits brought against ordinary Americans, that is how such suits are always resolved: by courts issuing rulings on the merits. The very idea that Congress would intervene in such proceedings and act to protect ordinary Americans from lawsuits is too outlandish even to entertain. But when the wealthiest, most powerful, and most well-connected financial elites are caught red-handed violating the privacy rights of their customers and committing clear felonies, their lobbyists call for a new law that has no purpose other than to declare that the old laws do not apply to them. That is the living, breathing embodiment of our two-tiered justice system—a lawless Wild West for elites in which anything goes. Examining how the telecoms pursued the amazing feat of getting full immunity for their systematic lawbreaking highlights how and why the rule of law is so easily discarded in the United States. The

Reconstruction is part of our lives even today. Issues that agitate American politics—who is an American citizen and what rights come along with citizenship, the relative powers of the national government and the states, affirmative action, the relationship between political and economic democracy, the proper response to terrorism—are Reconstruction questions. Reconstruction is embedded in our judicial processes. Every session of the Supreme Court adjudicates issues arising from the Fourteenth Amendment and the civil rights legislation of Reconstruction.

Getting somebody confirmed to the Supreme Court has never been a slam dunk, in part because the Court’s role in American government has always been controversial. After all, the idea of giving nine unelected, tenured-for-life lawyers in black robes the power to strike down laws passed by a majority of the people’s representatives doesn’t sound very democratic. But since Marbury v. Madison, the 1803 Supreme Court case that gave the Court final say on the meaning of the U.S. Constitution and established the principle of judicial review over the actions of the Congress and the president, that’s how our system of checks and balances has worked. In theory, Supreme Court justices don’t “make law” when exercising these powers; instead, they’re supposed to merely “interpret” the Constitution, helping to bridge how its provisions were understood by the framers and how they apply to the world we live in today. For the bulk of constitutional cases coming before the Court, the theory holds up pretty well. Justices have for the most part felt bound by the text of the Constitution and precedents set by earlier courts, even when doing so results in an outcome they don’t personally agree with. Throughout American history, though, the most important cases have involved deciphering the meaning of phrases like “due process,” “privileges and immunities,” “equal protection,” or “establishment of religion”—terms so vague that it’s doubtful any two Founding Fathers agreed on exactly what they meant. This ambiguity gives individual justices all kinds of room to “interpret” in ways that reflect their moral judgments, political preferences, biases, and fears. That’s why in the 1930s a mostly conservative Court could rule that FDR’s New Deal policies violated the Constitution, while forty years later a mostly liberal Court could rule that the Constitution grants Congress almost unlimited power to regulate the economy.