In his review of Clark M. Neily III’s Terms of Engagement for the Wall Street Journal, Georgetown’s Randy Barnett discusses how the commonly applied principle of “judicial restraint” is based on the false notion that our laws always reflect the will of the people. In the name of “restraint” our high courts defer back to the legislators rather than judge laws on constitutional merits. The result is an explosion of legislation and regulations that curtail the individual liberties of American citizens.
"In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction. In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs. Because voters know little about these laws and their impact, they can’t hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election."
Barnett points to some of the surprising examples found in Neily’s book:
"He describes laws requiring Americans to take hundreds of hours of training to become state-licensed cosmetologists before they can braid hair, "even when they provide no other services and use no scissors, chemicals, or potentially hazardous instruments." Louisiana requires a florist license before a person can arrange flowers for pay; Louisiana and Tennessee require anyone who sells a casket to the public to be licensed as a funeral-home director."
Barnett then points to Neily’s concept of “Constitutional Conservatism” as an alternative “judicial restraint” — and outlines Neily’s three important premises:
"First…the Constitution establishes a legal framework that determines what actions the government may properly take and what actions it may not. Government officials are bound to obey the Constitution, and they must conform their actions to the limits it provides."
"Second…it is appropriate for judges to determine the unconstitutionality of government action…all three branches of government, including the judiciary, must inspect a law and concur before a measure can safely be imposed on the general public."
"Finally, Mr. Neily says, ‘judges should base their rulings on the text of the Constitution instead of their own policy preferences.’"
Read the full article here
For more on “Constitutional Conservatism”, and how we can effectively restore constitutional limits on government, read Neily’s indispensable new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government
Back at CIA headquarters in Washington, Encounter was regarded proudly as a “flagship”, an effective vehicle for advancing the arguments for a pax Americana. It even became a calling card for CIA agents. Arranging a meeting with Ben Sonnenberg, a rich young wanderer who worked for the CIA in the mid-1950s, an agent told him, “I’ll be carrying a copy of Encounter, so you’ll know who I am”. — Frances Stonor Saunders on Encounter magazine in The New Statesman, July, 1999
Townhall.com’s Scottie Hughes reminds us that Justice Ruth Bader Ginsburg thinks that the Roe v. Wade 1973 decision went “too far, too fast”. This week, Clarke D. Forsythe’s surprising new book, Abuse of Discretion: The Inside Story of Roe v. Wade, provides new evidence from the Justices’ case files, oral arguments, and personal papers that the landmark decision was indeed rushed. In fact, according to Forsythe, the outcome was in many ways a fluke of history—a rare blend of misinformation, arbitrary logic, and incomplete jurisprudence.
"First, the Supreme Court justices thought the decision was good for women’s health. There was a widespread belief in certain quarters that “abortion was safer than childbirth.” In the past four decades, many international studies have shown the opposite."
At the time of Roe v. Wade, there was also a widespread belief that the world’s population was going to increase drastically and dangerously if no measures were taken to control it.
"In this vortex of fear about a near future in which there would simply be too many people on earth to feed, abortion seemed almost scientific… But we now know there was no “population bomb”…Yes, the population has grown, but famines and starvation did not. Instead, life expectancy and average incomes rose due to trade, technology, and free enterprise – not population control.
The judges were also led to believe that the majority of Americans wanted abortions to be legal. However, today a clear majority of Americans support legal protection for the unborn child:
"Third, the Justices in Roe “thought they were riding a wave of cultural sentiment in favor of abortion,” says Forsythe. They never anticipated the backlash – the push for constitutional amendments, the thousands of people who march on the Supreme Court every anniversary of Roe, or the way the decision dominates the nomination process for Supreme Court Justices.”
For a serious examination of how the Roe v. Wade decision came to be, read Clark D. Forsythe’s important new book: Abuse of Discretion: The Inside Story of Roe v. Wade.
Read the full Townhall.com review here.
Join the conversation about Abuse of Discretion on Twitter using hashtag #AbuseOfDiscretion.
In the Wall Street Journal, Harvey Silverglate delves into the recently concluded trial of James “Whitey” Bulger, the 82-year-old mobster from Boston, where fellow accomplices avoided the death penalty by testifying against Bulger.
"It was not unusual that prosecutors relied on unsavory witnesses whose testimony came at the price of government leniency or immunity for the witnesses’ own horrendous crimes. But it is noteworthy that federal prosecutors rewarded witnesses otherwise subject to the death penalty with deals that allowed them to avoid execution. In other words, the witnesses "sang" for their lives."
One of Bulger’s former comrades in particular was able to make quite the profit off of his agreement with the feds:
"John Martorano, Bulger’s coldblooded enforcer, admitted to 20 murders and likewise faced the death penalty. He made a deal, was sentenced to 14 years and was released in 2007 after serving 12. The Drug Enforcement Administration paid him $20,000 upon his release. He later sold movie rights to his life story for $250,000 and received half of the $110,000 advance for Boston Herald columnist Howie Carr’s Martorano biography, "Hitman." At Bulger’s trial, Martorano joined Flemmi in blaming multiple murders on his former boss."
Although it has not been approved by any specific legislation, convicting a defendant based on the testimonies from rewarded witnesses has become “business as usual” according to Silverglate. Which, of course, raises some key questions:
"The trial of Bulger raises the question of whether a civilized legal system—which assures a defendant due process and otherwise harshly penalizes witness bribery—is compatible with the practice of allowing the testimony of government witnesses who have to testify for their very lives."
Read the full article here
For more on abuses within the federal criminal justice system, read Silverglate’s indispensable book, Three Felonies a Day: How the Feds Target the Innocent
(Pictured: Jack Nicholson as “Whitey” Bulger in The Departed)
The president of the United States should not state that presidents of countries in upheaval (e.g., Bashar Assad) “must go,” should not draw “red lines” and ignore them, should not devise plans to punish rogue leaders but not actually damage their war-making ability, should not promise action and send forces to carry out the action, and then have, in current parlance, a public “conversation” with himself about whether to do anything, and should not thereby abdicate his great office in all respects except the salary and perquisites. — Conrad Black in The New York Sun