: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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David Dow: Judicial Activism Makes America Great


A new book from David Dow: America’s Prophets: How Judicial Activism Makes America Great. I’ve been sending it to my FedSoc friends just to watch them gag and recoil in horror. Knowing David it will be nothing if not interesting, regardless of political persuasion or interpretive predilections.

America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. Dow confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America’s prophets. Dow argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But Dow argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Meyler on Daniel de Foe, Champion of Constitutionalism

Somewhere along the line I became an accidental de Foe scholar, primarily due to the influence of a favorite professor in undergrad, Dr. Irving Rothman, so it was particularly gratifying to read an excellent piece on de Foe’s role in promoting constitutionalism as a form of governance.

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents: even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned thisworldwide force, inaugurating a radically new form of political organization when it adopted the Constitution as its foundational text; yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe—English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, advocated the development of written documents setting forth the basic principles of a governmental order—and restraining the power of legislative majorities—in a number of disparate literary and political guises. Just as the individualist ethos of Robinson Crusoe grabbed the American imagination from the mid–eighteenth century onward, a conception of written constitutionalism similar to the one that he promulgated took root on American soil. This Article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe’s arguments with the scholarship of today, an alignment that suggests the persistence of some of the mythic ideals of written constitutionalism that Defoe constructed in the early eighteenth century.

Read here: Bernadette Meyler, Daniel Defoe and the Written Constitution (.pdf)

Google’s Gatekeepers

George Washington Law Prof Jeffrey Rosen has a fantastic piece in the New York Times today on Google’s Gatekeepers, chronicling the central role the company is playing, voluntarily or not, in setting a kind of global free speech policy.

In March of last year, Nicole Wong, the deputy general counsel of Google, was notified that there had been a precipitous drop in activity on YouTube in Turkey, and that the press was reporting that the Turkish government was blocking access to YouTube for virtually all Turkish Internet users. Apparently unaware that Google owns YouTube, Turkish officials didn’t tell Google about the situation: a Turkish judge had ordered the nation’s telecom providers to block access to the site in response to videos that insulted the founder of modern Turkey, Mustafa Kemal Ataturk, which is a crime under Turkish law. Wong scrambled to figure out which videos provoked the court order and made the first in a series of tense telephone calls to Google’s counsel in London and Turkey, as angry protesters gathered in Istanbul. Eventually, Wong and several colleagues concluded that the video that sparked the controversy was a parody news broadcast that declared, “Today’s news: Kamal Ataturk was gay!” The clip was posted by Greek football fans looking to taunt their Turkish rivals.

Wong and her colleagues asked the Turkish authorities to reconsider their decision, pointing out that the original offending video had already been voluntarily removed by YouTube users. But after the video was taken down, Turkish prosecutors objected to dozens of other YouTube videos that they claimed insulted either Ataturk or “Turkishness.” These clips ranged from Kurdish-militia recruitment videos and Kurdish morality plays to additional videos speculating about the sexual orientation of Ataturk, including one superimposing his image on characters from “Queer Eye for the Straight Guy.” “I remember one night, I was looking at 67 different Turkish videos at home,” Wong told me recently.

After having many of the videos translated into English, Wong and her colleagues set out to determine which ones were, in fact, illegal in Turkey; which violated YouTube’s terms of service prohibiting hate speech but allowing political speech; and which constituted expression that Google and YouTube would try to protect. There was a vigorous internal debate among Wong and her colleagues at the top of Google’s legal pyramid. Andrew McLaughlin, Google’s director of global public policy, took an aggressive civil-libertarian position, arguing that the company should protect as much speech as possible. Kent Walker, Google’s general counsel, took a more pragmatic approach, expressing concern for the safety of the dozen or so employees at Google’s Turkish office. The responsibility for balancing these and other competing concerns about the controversial content fell to Wong, whose colleagues jokingly call her “the Decider,” after George W. Bush’s folksy self-description.

Google is clearly a victim of its success in the sense that we no longer care what Altavista’s free speech policies are. Google policies matter because of the de facto monopoly power its overwhelming market share gives it. I suspect we’ll continue to see some very interesting case law in this arena, particularly internationally.

Jeffrey Rosen, Google’s Gatekeepers, New York Times, November 28, 2008

George Carlin, Rest in #$%*ing Peace

George Carlin died today. A sign of a well-earned obituary, his life is still more interesting for its events than for its passing. From the New York Times

In 1970, Mr. Carlin discarded his suit, tie, and clean-cut image as well as the relatively conventional material that had catapulted him to the top. Mr. Carlin reinvented himself, emerging with a beard, long hair, jeans and a routine that, according to one critic, was steeped in “drugs and bawdy language.” There was an immediate backlash. The Frontier Hotel in Las Vegas terminated his three-year contract, and, months later, he was advised to leave town when an angry mob threatened him at the Lake Geneva Playboy Club. Afterward, he temporarily abandoned the nightclub circuit and began appearing at coffee houses, folk clubs and colleges where he found a younger, hipper audience that was more attuned to both his new image and his material.

Among the more controversial cuts was a routine euphemistically entitled “Shoot,” in which Mr. Carlin explored the etymology and common usage of the popular idiom for excrement. The bit was part of the comic’s longer routine “Seven Words You Can Never Say on Television,” which appeared on his third album “Class Clown,” also released in 1972. “There are some words you can say part of the time. Most of the time ‘ass’ is all right on television,” Mr. Carlin noted in his introduction to the then controversial monologue. “You can say, well, ‘You’ve made a perfect ass of yourself tonight.’ You can use ass in a religious sense, if you happen to be the redeemer riding into town on one — perfectly all right.”

The material seems innocuous by today’s standards, but it caused an uproar when broadcast on the New York radio station WBAI in the early ‘70s. The station was censured and fined by the FCC. And in 1978, their ruling was supported by the Supreme Court, which Time magazine reported, “upheld an FCC ban on ‘offensive material’ during hours when children are in the audience.” Mr. Carlin refused to drop the bit and was arrested several times after reciting it on stage.

The Supreme Court case was FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

Be True to what You Said on Paper, Remembering Martin Luther King

At Concurring Opinions, Alice Ristroph’s Early Morning, April 4 turned me on to the full text of Martin Luther King’s I See The Promised Land. If you’ve never read it in it’s entirety, take a moment – it’s worth your while.

This portion in particular jumped out at me -

All we say to America is, “Be true to what you said on paper.” If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right.

“Be true to what you said on paper.”

If there is any better distillation of the essence of Constitutional Law I haven’t heard it.

See also, 40 Years Forward: What 1968 Taught Us

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