Northern Ireland was mis-ruled until 1998 under a series of British Emergency Powers Acts virtually from the moment of its creation in 1921. Here’s one. Prior to 1921, it was quite common for Britain to govern Ireland via various “Coercion Acts”, most of which suspended habeus corpus. The USA adapted many British laws on anti-terrorism after the Oklahoma City bombing.
At this blog site, Joanne Namerow discusses the main Wikileaks outrage, from elites’ perspective: States’ use of surveillance technology, rendering subjects’ lives and political views transparent to rulers, can occasionally be used to make capitalist state and capitalist elite machinations transparent to the public. What Namerow doesn’t discuss is that transparency isn’t half of what’s required for political mobilization. The state has the advantage of being run on behalf of antidemocratic elite interests, whereas the capitalism in front of our faces remains illegible to most of the unorganized public. Further, the leaks can’t stop the great assembled masses of neocon strategists and secret polices from doing their job #1–suppressing democracy and promoting Anglosphere financial-militarist capitalist interests.
The public elite freak-out over Wikileaks is a nice, petulant, fascist law’n’order rallying cry and all, and it’s not like they don’t have the excess machinery to prosecute their campaign; but it is also a lot of wasted energy and resources. But hell– I’m all for elites & their retainers wasting their considerable, malevolent, ne’er-do-well energies, and they’re wasting our appropriated resources anyway.
Democracy Now! hosts a Dec 20, 2010 debate between a socialist feminist, Naomi Wolf, and a neoliberal feminist, Jaclyn Friedman over the international persecution of Wikileaks’ Julian Assange.
What’s at stake in this debate is setting the criteria for the circumstances in which socialist feminists coalesce with neoliberal feminists, and the circumstances in which socialist feminists must break off from neoliberal feminists and regroup as a separate network (cf Nancy Fraser).
When Karl Rove comes knocking at your door and tells you he will let you decry rape for 15 minutes on teevee if you sell imperial tyranny for him, and your reaction is “OK! Sounds like a bargain!”, you know you’re a fucking neoliberal tool. If and only if in the context of an international antidemocratic elite campaign, you do not believe that women have the capacity to make decisions, then you are not a feminist; you are a paid neoliberal shill. Since we are strict pomos and we must allow women to label themselves feminist if they want (or if it serves their career networking), we could gamely specify them as Karl Rove feminists. Which version of feminism led Friedman naturally to resort to yelping, “Fear! Fear! Fear is the reason!” at the end of the Democracy Now! debate.
Yes, most of us women and many men have been raped; it involved fear and other emotions, and rape is one of the overlapping abuses of power in a rapacious, proliferating, inequality-based political-economic culture of alienation and “unmaking,” as Elaine Scarry might put it. The existence of abuse in individual relationships requires us to morally oppose the further development of the institutions that foster such oppression. The long elite antidemocratic campaign is a central corrupt and corrupting institution.
Inasmuch as it first pointed to hypocrisy (as articulated by Naomi Wolf and Michael Moore), the charge that Sweden underprosecutes rape is a distortion of the actual legal strength of women in Sweden vis-a-vis sexual violence. Sweden has a very different legal system that approaches almost all crime with restitution, rather than vindictive, long-term punishment as in the Anglosphere; and that social democratic legal tradition is an asset that reduces alienation and oppression. (In ignoring this, Amnesty is cooperating with a local Swedish effort to use the international public sphere for local political purposes. Perhaps in the Swedish context, Amnesty’s classification of women in Sweden as particularly vulnerable to consequence-free violence supports women’s emancipation; perhaps instead it supports neoconservative efforts to augment inequality by replacing the current legal system with a punitive, capitalist class-biased Anglo legal system.) There is a very good reason why some Swedes are angry with the state prosecutor and the neoliberal feminists for assaulting that reconstructive social democratic tradition.
This Assange prosecution case will most definitely NOT make Sweden and the world better at opposing rape, contrary to Friedman’s baseless assertion. It will only continue to give conservatives license to destroy democracy in the glorious, cynical, patriarchal name of protecting the sub-rational womenchildren sub-citizens. Sweden has a conservative Law’n’Order government that got into power and stays there by flogging the idea that swarthy immigrants threaten the virtue and accomplishments of “real,” “liberated” Swedish women. Those politics of pimping out feminism are honed to a fine art in Sweden, as you can see from watching the cynical Swedish lawyer in the Democracy Now! report.
Sweden’s conservative government is absolutely colluding with other conservative states to pimp out women’s fear and rage at being raped for these rulers’ own antidemocratic purposes. Wolf knows what she’s talking about, and her incisive analysis is impressive.
Assessment of socialist-feminist / neoliberal feminist coalition:
In the Assange case, the neoliberal feminists are not fighting for rape victims or any women. They are serving as a voluntary army for politically-organized international capital. But simply wrapping the terrifying, bloody flag of sex victimhood around the shoulders of this conservative campaign cannot make it liberatory for anyone but already overly-mobile capital, rapist of whole communities and societies, progenitor of alienated, dehumanizing, abusive, exploitive relationships. And I speak not just from a political perspective, but also from an experiential perspective, as a feminist who was raped by an IDF soldier.
This is a point where socialist feminists cannot reconcile with the political program of neoliberal feminists, which has led directly into the pit of extreme social inequality, including gender inequality–if you recognize that women make up the majority of the world’s poor, exploited, dispossessed and disenfranchised. In today’s political context, mutual opposition to rape and patriarchy is not enough, nor is mutual commitment to women’s advancement. Which rape? Which patriarchy? Which women’s advancement? These are crucial questions, because the neoliberal feminists’ abstracted emotional triggers cannot hide the bloody flood of wretched disparities in life chances that we have seen and will continue to see under the management regime of such neoliberal supplicants to the conservative movement.
This is a point at which socialist feminists must regroup around their own separate, historically-rooted Left feminism. They can and must fight sexual violence and promote women’s networks separately from the neoliberal feminists. Mobilize their own constituency. Build upon their tradition’s own ideas. The neoliberal feminists’ only policy answers are sealed within the bleak, corrupting world of Reagan, Thatcher, Mulroney, and Reinfeldt, wherein Karl Rove’s Angels can sell their glossy, full-color magazines to the self-righteous daughters and wives of finance, insurance, and real estate.
Considered strategically, socialist feminists should remember, however, that over an historical sweep, the existence of elite conservative feminist hegemony–while destructive in many terrible ways–can produce something of a hegemonic check on Left patriarchs. As Paul Lichterman’s work has shown, it’s sometimes wise to refrain from enjoining fierce bullying with all your firepower–but rather to practice some jijitsu. You don’t want to completely alienate or destroy all enemies.
Naomi Wolf is a good model. She articulates a consistent, clear socialist feminism firmly and confidently, even while she is being savaged by the neoliberal feminists. The trick is to regroup with other socialist feminists at such junctures–not to let the neoliberals get inside your head.
There will come a point in the future where the competing feminist groups will have temporary use of each other. You want your head clear to take advantage of that moment.
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2023 Update: Naomi Klein wrote a whole book denouncing Naomi Wolf. I do not have the bandwidth to read it. I have regarded both of their work highly in the past. Wolf really doesn’t like the combination of pharmaceutical companies and authoritarianism, and since this position is absolutely verboten with liberals (and dutiful left-liberals), the champions of vaccination as health, Wolf was reduced to explaining her anti-authoritarian, anti-pharmaceutical research and theory to patriarchal Canadian Right-Stoicist, psychologist Jordan Peterson. Maybe Wolf’s very relateable opposition to pandemic patriarchal authoritarianism (ask most Moms) went down a sideways path, and she didn’t craft a convincing interrogation of the costs (including health costs) of population management maximizing publicly-subsidized, for-profit vaccine development. It’s hard to imagine she emphasized the sexist aspect of pandemic authoritarianism on the Peterson show. I’m not going to listen to Peterson any further than I did to compare Anglo Right stoicism to Danish Left stoicism, and I haven’t dug into Wolf’s work these days and so I cannot comment. If I did, I might well be disappointed with Wolf. The pandemic did not bring out the best in people. I certainly am disappointed with Klein. Fresh off the pandemic, going after Wolf to delineate her brand is not going to be one of Klein’s democratic contributions.
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OK, It’s worse than I thought. I did go listen to the April 2024 Jordan Peterson interview with Wolf. Peterson has labeled it “The Demise of the Left.” Basically Peterson does a lot of mansplaining, as well as using his psychology skills to ask questions about Wolf’s background, rape trauma. He’s obsessed with the product of that trauma, her Beauty Myth book. Wolf spends the interview often in pain. She is palpably disturbed by Peterson a lot of the time. But she is also using the interview to inject a feminist view of rape into his broadcast.
Wolf is also re-traumatized by people’s behavior in the pandemic years, particularly “The Left” authoritarianism, shaming and shunning practices. She and Peterson most agree on the horror of the “Left’s” descent into freaky, discriminatory disease-pollution psychology. Peterson is surprised that the “Left” embraced the pharmaceutical industry so hard. That embrace seems to have pushed Wolf to follow research critical of the COVID mRNA vaccines. Somebody’s got to dig there, and unlike the liberal meritocrats, I don’t think the inquiry threatens civilization. Science isn’t truth. It’s bigger than that, and it proceeds toward better knowledge.
But I myself am not enraptured by the possibility–or probability–that vaccines are partly poisonous. When it’s not about mechanically attempting to fix broken body parts, that’s profiteering medicine in a nutshell: Partly poison. Cancer treatment is poison. Human health is a heavily-hyped sidehustle to capitalist medicine, just like circulating wealth is a heavily-hyped sidehustle to asset coding and financial speculation. Capitalist “solutions” are not about healthy human development, certainly not in a militantly-inegalitarian milieu of proprietarian absolutism.
Rather, the fundamental problem with liberal party meritocrats’ pandemic approach is that, as patriarchal, militaristic loan policy from isolating and immobilizing Palestinians and other enemies of inegalitarian, antidemocratic oil geopolitics, it radically discounts human development and comprehensive health, and it sacrifices science in favor of profitable positivist-mechanism. So it reproduces pandemic-generating conditions.
I am not surprised that the Liberal Left and liberals more generally emerged as COVID vaccine fundamentalists. The Liberal Left is part of the Anglo North American meritocracy. It is rooted in the Democrat Party and other liberal parties in Canada, and has thick ties to the pharmaceutical industry, which is no small part of the American economy. Corporate headquarters are all over the US Northeast, near the political headquarters, and employ perhaps hundreds of thousands of people in very good jobs. The liberal meritocracy was up in arms for vaccine-centric “health care” since way before COVID. I know otherwise very nice Liberal Lefts with close ties to the DC-area Dem Party and Dem-adjacent unions–and with an immune-compromised family member–who were on a pro-vaccine crusade for at least a good decade before the pandemic. They obsessed over their enemies in the media. Liberal party vaccine warriors comprised a massive social media community. If Wolf is traumatized by the hard Liberal Left “sudden” betrayal, perhaps she missed the earlier memo from the liberal-pharmaceutical bloc.
I guess that Naomi Klein went after Wolf because, as she says, she’s annoyed to be mistaken for Wolf, and also because Wolf is right: Canada was godawful in the pandemic. It was awful to live here. It was horrible to work here. Canadian pandemic policy was narrow, rigid, and authoritarian and unhealthy af. Nothing but unhealthy lockdowns targeting women and children for years and years, irrationally alongside wide-ranging patriarchal policing, well into vaccine distribution; piles of scientistic irrationality; health researchers converted into police sanctimoniously imprisoning traveling Americans; Anglo ethno-nationalist identarian vilification of non-conforming minority ethnicities like the Mennonites; rigid absolutism–neglecting all other means (testing) or any variation (walking outdoors) in managing the pandemic. Liberal Canadians glorify duty and identify with liberal meritocrats. With the burning hatred of a thousand suns, they detest what they see as populist Americans, millions of indistinguishable Trump deplorables, responsible in liberal Canadian minds for all the ills going back to the worst of them all, the American Revolution.
I’m given to understand (by asking) that how Canadian liberals pychologically processed the pandemic was that, scared, they went to the well, the sacred duty to sacrifice, and that sacrifice itself is what compels their bitter, sanctimonious authoritarianism. Canadian Anglos are here for the mining and the quiescence and optionally the charity, not democracy. They don’t have Enlightenment. They just have trickle-down, thin democracy and profitable positivist-mechanism along with duty-bound authoritarianism. They consider that their liberal virtue.
Well, what that virtue means is that like other liberal and conservative-run societies, they have engaged in no (zero) reform of the inegalitarian institutions that reproduce outsized Indigenous vulnerability to morbidity and mortality, as well as immune dysfunction and vulnerability across the population. They’re just going to wait around until the next epidemic or pandemic, and then lock all the civvies up all over again–especially those disgusting, “inessential” disease vectors, women and children– until the US reactively produces some more vaccines.
I hope Wolf gets over her trauma and outrage. There is trauma to get over, for sure, and nothing has improved, in terms of the roots of global health crises. Wolf is right: Authoritarianism is the opposite of a solution. The problem, however, is not “Left” authoritarianism, unless she defines the Left with a liberal center. I hope she doesn’t sink back into Cold War liberalism, projecting Anglo authoritarianism onto The Left; she should research why and how Sweden as an egalitarian country did not follow the authoritarian pandemic playbook.
Including Abolition and Enlightenment recuperation more generally, I think some really promising socialist developments are definitely arising post-pandemic, and should not be missed. I hope Klein does not miss these real Left advancements either. Wolf has been good because she’s been far more interested in the military state basis of authoritarianism than most other Liberal Leftists, who whistle past that graveyard. In Shock Doctrine Klein, for example, was only interested in how the Chicago economists supported fascist authoritarianism in Chile. It’s distressing and weird that meritocratic Left Liberals forbid public knowledge of the military and policing roots and reason of population governance models, including those roots in the authoritarian pandemic policies. Dutiful or meritocratic authoritarianism and pharmaceutical industry loyalty is no more a Leftist way forward than regurgitating the Cold War myth of Left Totalitarianism. It’s too bad Klein wasted ink on what I suspect is a cranky, unhelpful Doppelganger book. Both Naomis can stand to look up from their self pity parties and hop back on that horse.
Andreas Wagner points out that influence is based in effluent. Publish all your thoughts (for real, not in a blog) and some will land. It strikes me that where mindfulness culture counsels observing your thoughts, and cultivating a friendly, depersonalized relationship with your thoughts, as a model for relating to other people, in the Postwar Jewish tradition the emphasis has rather been on expressing in public every thought that tumbles through one’s head. The Naomis have published some good stuff. But even they should be encouraged to practice mindfulness sometimes.
In LA, a neoliberal coalition involving the ACLU got a court to reduce teachers’ union-negotiated seniority protection, on behalf of poor students.
The Principal Established: “In Social Crises, Unions are Not Compatible with the Public Good”
In “partly” getting rid of seniority, the point is the establishment
of a governance principle: “The public good is diminished by unions’
negotiating power in establishing work conditions (in the form of linking both
compensation and job security with experience).” That principle is
what the neoliberal education reform industry was trying to achieve,
because it lays further ground for the claim that working class
organization (unions) violates civil law, which can be diffused across
American law and education policy.Why seniority is essential to quality jobs, unions and education quality:
Protecting seniority protects workers against being fired when their
union-negotiated wages and benefits begin to compensate for both
training and experience. Without seniority, the compensation won in
negotiations cannot be realized, and this means the union involves a
lot of work without being able to secure any effect. The union becomes nonviable.
Inasmuch as this is the motivated interest behind the neoliberal education
reform and privatization campaign, it is not always sufficient to make
the case that this private interest (opposed to unions) represents the public good.
The market discriminates in providing goods and services. (Or, if you think the
public education system discriminates against the poor, you aint seen nothin yet…) Those education consumers who have the effective demand (wealth) will (have to) get a much better product in the market than those who do not, and this drop in service quality to the working class will be much larger than with a publicly-provided good or service. That’s why charter schools underperform public schools.Teachers’ unions are the basis for a middle class in society. When the education market is privatized, individual families and the public pay largely for privatized profits, instead of middle class wages for educated professionals. With privatization and deunionization, profit must be generated out of education (a no- to low-profit sector in the poverty, working class and middle class markets), so you have to rid society of a large sector of middle-wage skilled jobs and replace them with a few highly-compensated upper management jobs and a large sector of low-wage junk jobs.
Unions professionalize teachers; and devolving education decision-making power to professional–that is, responsible, judicious, skilled, competent–teachers, in interaction with parents and communities, creates the best, most responsive education decisions and innovation. Without the cultural respect for education and educators that strong unions can promote, education is degraded and devalued, as in Arizona for one example; skills and competencies consequently decline across the region.
An example of frame transformation can be for example where some of the 4,000 jurists members of the venerable American Law Institute over time came to see the death penalty, which they had promoted and managed for decades, as a moral and practical failure.
They disbanded the organization last fall. Though they themselves developed the modern death penalty in 1962, and were the death penalty’s intellectual and juridical champions, they ended throwing up their hands at what they came to see as “intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” After decades of honing the death penalty in the US, capital punishment was ultimately observed in an ALI-commissioned study to be used unfairly; it was usually racist; it was enormously expensive, though legal defenders received almost no compensation for their work; it was riddled with politics; and innocent people tended to be executed.
Like Justice Harry A. Blackmun, the American Law Institute as an organization traveled from seeing capital punishment as jurisprudence necessary to securing the good society, to seeing it as the state “tinker(ing) with the machinery of death.”
In an historic ruling, Arar v. Ashcroft 2009, the US Second Circuit Court of Appeals ruled by a wide margin that the US Executive branch is no longer subject to US law. The Obama administration supported this interpretation of US Constitutional law.
Filthy buggers in bed together: California Democrat Jane Harman, Alberto Gonzales, and AIPAC.
Read Greenwald’s report about this “deepest kind of corruption.”
Harman was the Bush Administration’s public point man on warrantless wiretapping, denouncing journalists for exposing Bush’s lawless wiretapping program. In return for her performance of this attack-dog task for the Bush Administration, Gonzales stepped in to stop the Justice Department’s investigation of Harman’s clandestine work on behalf of AIPAC. See Stein, Jeff. 2009. “Wiretap recorded Harman discussing aid for AIPAC defendents.” CQ Politics, April 19. AIPAC (American Israel Public Affairs Committee) is the most powerful pro-Israel organization in Washington.
Harman is notable for her long involvement in intelligence issues as a US Representative, and her belligerent right-wing communication style. Harman is also a member of the new neocon organization, the blandly-named Foreign Policy Initiative (FPI).
Despite AIPAC’s political backing, however, Harman failed to secure posts on the House Intelligence Committee or in the Obama Administration. Some of her wiretapping chickens had apparently come home to roost.
Links to US torture reports:
The New York Times
Knowlton, Brian. 2009. “Report gives new detail on approval of brutal techniques.” New York Times, April 22.
Shane, Scott and Mark Mazzetti. 2009. “In adopting harsh tactics, no inquiry into their past.” New York Times, April 22.
Shane, Scott. 2009. “2 suspects waterboarded 266 times.” New York Times, April 20.
The editors. 2009. “The torturers’ manifesto.” New York Times, April 18.
Danner, Mark. 2009. “Tales from torture’s dark world.” The New York Times, March 14.
Krugman, Paul. 2009. “Reclaiming America’s soul.” The New York Times, April 23.
Glenn Greenwald
Greenwald, Glenn. 2009. “The NYT’s definition of blinding American exceptionalism.” Salon.com, May 8. In which Greenwald points out that the American press calls all non-American-based torture by its name.
“(U)sing the editorial standards of America’s journalistic institutions — as explained recently by the NYT Public Editor — shouldn’t this (non-US-based torture) be called ‘torture’ rather than torture — or ‘harsh tactics some critics decry as torture’? Why are the much less brutal methods used by the Chinese on Fischer called torture by the NYT, whereas much harsher methods used by Americans do not merit that term? Here we find what is clearly the single most predominant fact shaping our political and media discourse: everything is different, and better, when we do it. In fact, it is that exact mentality that was and continues to be the primary justification for our torture regime and so much else that we do.”
A POLLYANNAISH TAKE ON OUR DECLINING SIGNFICANCE, from the conservatives
I’m archiving big chunks of this one. While the author’s dominant analysis is conservative, the finding: declining judicial influence, is important.
What this article should spur is a less moronic (“ooh! the American specialness of contempt for human rights!”), much more critical inquiry into the many abuses of American Exceptionalism. There’s nothing to celebrate or preserve with loving care, in being an island of rural idiocy. Another piece of reflection this article could spur is this: Who wants to live in a country where legal scholars and communications professionals fetishize and follow an increasingly isolating legacy of devotion to private property, individualism, and a fascistic approach to crime?
In the original article (hit this entry’s title for the NYTimes link) author Liptak is frequently ahistorical, in his attempt to help conservatives protect their egos. All spin aside, the fact is that the US and the US courts have been less fascistic than they now are, and in those more liberal periods, they were respected more. And that’s about right. Yes, the US has a fucked history, but conservatism doesn’t equal Americanism, no matter how conservatives like to flatter themselves.
Conservatives decry less fascistic judges as “activist”, arguing either that (1) liberal jurisprudence is out of step with inherently conservative legislatures and the faithful conservative public (as is asserted in this particular article), or (2) that liberal jurisprudence refuses to follow the mystified intent of the Founding Fathers. It is flat-out ridiculous that journalists allow conservatives to have it both ways; but either way, that spin is only conservative self-flattery. Conservatives are activists, activists of conservatism. Conservatives are not the soul of the public; they are not the soul of legislators; and they are not the soul of the founding fathers (well, Jefferson anyway). If you’re just talking public opinion, at best, surveys of the US public indicate that 11% of Republican (not the total) voting base subscribes to their brand of conservatism even today (according to a recent Pew survey), after decades of elite-sponsored right-wing social movement. More Republican voters subscribe to cultural bits of conservatism, but not the whole enchilada. Then there are the legions of citizens who are not conservative at all.
It is testament to the redeemability of humanity worldwide, that the US is followed when it is less fascistic, and its ideas and laws are rejected when its Great Men scurry about, making life a living hell almost everywhere.
The thing to be concerned about is this: US conservatives have exerted great influence over the politics of not only the US, but other countries as well. Doesn’t it strike you as odd, that when the US throws a Bush up into leadership, Germany, England, Canada, Italy, Sweden, etc. follow suit? Are voters around the world calculating: “Well electing this right-wing asshole locally will make the American conservative assholes more comfortable, so I’ll help elect him!”? No, that’s not how it goes. It’s world wide elite social movement organization that gets country after country to vote for a conservative platform or a liberal platform. What Liptak’s conservatives are saying between the lines here is that despite all their efforts to export the conservative model world-wide, judiciaries are still resistant institutions outside the US. This means that conservative activists are lining other countries’ judiciaries up in their gun sights.
Citizens of the world, prevent the further spread of barbarism! Protect your judiciaries from fascism!
September 18, 2008
AMERICAN EXCEPTION
U.S. Court Is Now Guiding Fewer Nations
The New York Times
By ADAM LIPTAK
Tom Torok and Kitty Bennett contributed reporting
WASHINGTON —
RIGHTWARD SHIFT, DIMINISHED INFLUENCE:
“Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.
But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.
“One of our great exports used to be constitutional law,” said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. “We are losing one of the greatest bully pulpits we have ever had.”
From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.
Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.
The story is similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”
The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court’s fading influence, legal experts said. The new courts are, moreover, generally more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another.
Another reason is the diminished reputation of the United States in some parts of the world, which experts here and abroad said is in part a consequence of the Bush administration’s unpopularity around the world. Foreign courts are less apt to justify their decisions with citations to cases from a nation unpopular with their domestic audience.
“It’s not surprising, given our foreign policy in the last decade or so, that American influence should be declining,” said Thomas Ginsburg, who teaches comparative and international law at the University of Chicago.”
…
Justice Michael Kirby of the High Court of Australia said that his court no longer confined itself to considering English, Canadian and American law. “Now we will take information from the Supreme Court of India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa,” he said in an interview published in 2001 in The Green Bag, a legal journal. “America” he added, “is in danger of becoming something of a legal backwater.”
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THE UNSURPRISING CONSERVATIVE AVERSION TO NON-CONSERVATIVE LAW ANYWHERE
“The adamant opposition of some Supreme Court justices to the citation of foreign law in their own opinions also plays a role, some foreign judges say.
“Most justices of the United States Supreme Court do not cite foreign case law in their judgments,” Aharon Barak, then the chief justice of the Supreme Court of Israel, wrote in the Harvard Law Review in 2002. “They fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and strengthens the democratic ties and foundations of different legal systems.”
Partly as a consequence, Chief Justice Barak wrote, the United States Supreme Court “is losing the central role it once had among courts in modern democracies.”
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BUT IN FACT THERE’S A LONG HISTORY OF US JUSTICES RELYING ON FOREIGN LAW, STARTING WITH ENGLISH LAW
“The opinion of the world community,” Justice Anthony M. Kennedy wrote for the majority in Roper v. Simmons, the 2005 decision that struck down the death penalty for juvenile offenders, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Justice Kennedy cited, among other things, the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and the Criminal Justice Act from the United Kingdom.
In Lawrence v. Texas, the 2003 decision striking down a Texas law making homosexual sex a crime, Justice Kennedy cited three decisions of the European Court of Human Rights, noting that homosexual conduct was accepted as “an integral part of human freedom” in many countries.
Fascist Justice Antonin Scalia, dissenting in Roper v. Simmons, fired back. “The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand,” he wrote.
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The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.
Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.
Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.
Chief Justice John Marshall, sitting as a circuit court judge, discussed the question in 1811. “It has been said that the decisions of British courts, made since the Revolution, are not authority in this country,” he said. “I admit it — but they are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”
Indeed, American judges cite all sorts of things in their decisions — law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy.
“Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge,” Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of South Africa. “But they can add to the story of knowledge relevant to the solution of trying questions.”
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HISTORICAL INFLUENCE OF LIBERAL US LAW
“The rightward shift of the (US) Supreme Court may partly account for its diminished influence. Twenty years ago, said Anthony Lester, a British barrister, the landmark decisions of the court were “studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C.”
That is partly because the foundational legal documents of many of the world’s leading democracies are of quite recent vintage. The Indian Constitution was adopted in 1949, the Canadian Charter of Rights and Freedoms in 1982, the New Zealand Bill of Rights in 1990 and the South African Constitution in 1996. All drew on American constitutional principles.
Particularly at first, courts in those nations relied on the constitutional jurisprudence of the United States Supreme Court, both because it was relevant and because it was the essentially the only game in town. But as constitutional courts around the world developed their own bodies of precedent and started an international judicial conversation, American influence has dropped.
Judge Guido Calabresi of the federal appeals court in New York, a former dean of Yale Law School, has advocated continued participation in that international judicial conversation.
“Since World War II, many countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory and practice,” he wrote in a 1995 concurrence that cited the German and Italian constitutional courts.
“These countries are our ‘constitutional offspring,’ ” Judge Calabresi wrote, “and how they have dealt with problems analogous to ours can be very useful to us when we face difficult constitutional issues. Wise parents do not hesitate to learn from their children.” (Judge Calabresi is Professor Calabresi’s uncle.)
The openness of some legal systems to foreign law is reflected in their constitutions. The South African Constitution, for instance, says that courts interpreting its bill of rights “must consider international law” and “may consider foreign law.” The constitutions of India and Spain have similar provisions.
…
The signature innovations of the American legal system — a written Constitution, a Bill of Rights protecting individual freedoms and an independent judiciary with the power to strike down legislation — have been consciously emulated in much of the world. And American constitutional law has been cited and discussed in countless decisions of courts in Australia, Canada, Germany, India, Israel, Japan, New Zealand, South Africa and elsewhere.
In a 1996 decision striking down a law that made it a crime to possess pornography, for instance, the Constitutional Court of South Africa conducted a broad survey of American First Amendment jurisprudence, citing some 40 decisions of the United States Supreme Court. That same year, the High Court of Australia followed a 1989 decision of the Supreme Court in a separation-of-powers case, ruling that a judge was permitted to prepare a report for a government minister about threats to aboriginal areas because the assignment did not undermine the integrity of the judicial branch.
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THE GROWING INFLUENCE OF OTHER COUNTRIES’ LAW
Many legal scholars singled out the Canadian Supreme Court and the Constitutional Court of South Africa as increasingly influential.
“In part, their influence may spring from the simple fact they are not American,” Dean Slaughter wrote in a 2005 essay, “which renders their reasoning more politically palatable to domestic audience in an era of extraordinary U.S. military, political, economic and cultural power and accompanying resentments.”
Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian Supreme Court had been particularly influential because “Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.”
In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin, New Zealand.
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“A SPECIAL PEOPLE WITH A SPECIAL IDEOLOGY”: CONSERVATIVES’ SPIN ON THEIR OWN DESTRUCTION OF US LEGITIMACY
“American popular attitudes toward the citation of foreign law, by contrast, Mark C. Rahdert wrote in the American University Law Review last year, “tap into a longstanding tradition of exceptionalism.”
That tradition is rooted in a popular devotion to the Constitution unknown in the rest of the world. It is supported by aspects of the American character that were formed by the nation’s initial geographic isolation and pioneer spirit, which emphasized freedom, private property and individual responsibility. That has led, for instance, to a near-absolute commitment to free speech and a particularly tough approach to crime.
In “ ‘A Shining City on a Hill’: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law,” a 2006 article in the Boston University Law Review, Professor Calabresi concluded that the Supreme Court should be wary of citing foreign law in most constitutional cases precisely because the United States is exceptional.
“Like it or not,” he wrote, “Americans really are a special people with a special ideology that sets us apart from all the other peoples.””
Here is apparently another case where “special” is a polite euphemism for “retarded”.
US legal precedence for indefinite detention, military tribunals, and torture is based on rulings from the 1940s:
Korematsu: The Court ruled that Americans of Japanese ethnicity can be imprisoned in interment camps.
Korematsu was based on:
Quinin: Which created the power of the executive to establish military tribunals.
The legal precedence for Quinin?
There was no legal precedence in US law.
So the Court based Quinin on the Divine Right of Henry III, King of England.
Thus, the legality of military tribunals in the U.S. is based on the Divine Right of Kings.
In other words, military tribunals are based on: lawless tyranny.
Beautiful. What do you get when you mix tyranny with inequality with massive wealth and power?
Get. Me. Out. of. Here.
Slightly adapted from:
A Little Help
Dozen Top Legal Scholars Line Up for Libby Appeal
By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 11, 2007; Page A15
A dozen of the country’s most respected constitutional scholars have leapt to I. Lewis “Scooter” Libby’s aid, asking a federal judge if they could try to convince him about critical legal questions that favor letting Libby remain free while he appeals his conviction in the Valerie Plame leak case.
Within hours of Friday’s filing from the scholars, U.S. District Judge Reggie B. Walton wrote back. In the teeny-tiny print of a footnote, he said he was delighted to know that such a distinguished group was available to help argue on behalf of criminal defendants on “close questions” of the law.
Walton promised he’d ring them up very soon when there might be poor defendants who need big legal minds to avoid incarceration, as opposed to Vice President Cheney’s well-padded former chief of staff facing the threat of the slammer.
Walton sentenced Libby last week to 30 months in prison and will hold a hearing on Thursday to consider whether Libby can remain free while his case is appealed.
“It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant,” Walton wrote. It is unclear whether he intends to grant the Right-wing Legal/Academic A-team’s request.
Walton added: “The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step up to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions.”
Indeed, it was an impressive group, including former Supreme Court nominee Robert Bork and beloved Zionist hatchet man Alan Dershowitz.
Also joining the brief were Vikram Amar of the University of California’s Hastings law school, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers and Robert Nagel of the University of Colorado.
The Gang of Twelve argued in a six-page brief that Libby, who was convicted of lying to investigators probing the leak of Plame’s identity, has a decent shot at appeal on the question of Special Counsel Patrick J. Fitzgerald’s appointment to investigate that leak. That appointment was likely inappropriate, they argued, because Fitzgerald lacked any supervision that would make his superiors “politically accountable”, presumably to Republican overlords.
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Note: In this article, the journalist uses Dershowitz’s own, deeply Orwellian title for himself: “civil libertarian”. Clearly, she was frightened, as well she should be from that monster. When she tries to argue that Dershowitz is “no friend of the Bush administration”, the author also evinces an inexplicable innocence as to the existence of the Right-wing political group known as neocons, to which all the above “constitutional” lawyers belong.
The Indomitable Neoliberals FC 