Nov
4
Position paper
November 4, 2009 | | Leave a Comment
Estanlin Llano
SCP 85
Prof. L. Quimby
Sept. 16, 2009
Position paper
The Civil Rights Movement tremendously changed United States civil laws. For example, the ruling in Brown v. The Board of Education declared school segregation unconstitutional, and thus it gave African American children and other children of colored equal protection of the law; in The Heart of Atlanta v. United States, the Supreme Court made it illegal for businesses, that do business with out of state customers and clients, to practice segregation; and lastly, in Jones v. Mayer Co. the Supreme Court declared it unconstitutional for private real estate companies to deny housing to people on the basis of race. Thus, the Jones case gave Congress the power to regulate real estate commerce. All of these cases and many more provided scholars with proof that the Supreme Court and its lower courts are an effective tool for social change (this theory shall henceforth be called the axiom). But that axiom assumes too much.
The common nature of these cases make it seem as though the courts are the best and most effective routes for organizations, such as the NAACP, which played a major role in all of the cases, social movements and individuals to make effective change in United States civil laws. The axiom became so commonly accepted that when Gerald N. Rosenberg, in his book titled, The Hollow Hope: Can the Courts Bring About Social Change, challenged it, he was met with many critics.
Rosenberg views the Courts as “fly paper for social reformers who succumb to the lure of litigation” (103). Rosenberg argues that because of activists are drawn to the courts; they loose sight of or do not take advantage of more valuable resources that would bring about social change faster and more effectively. Some of these resources include, creating new ways to mobilize, creating a social conscious of a particular injustice, picketing, protesting and getting wide national media attention. As with any axiom, it is self evident and only needs a little more facts and basis for it to be inarguably proven. Jeffrey Rosen, set out to provide theoretical and practical proof for the axiom.
In his book, The Most Democratic Branch, Rosen argued that the courts are one of the most effective ways for changing unjust laws because judges are the one’s who interpret the constitution in accordance with the will of the country. This is no easy task for anybody, and certainly twice as hard for judges; commonly, people that create a balance between laws and public opinions are politicians. Judges are not politicians. Thus, Rosen is arguing that it serves the public good if judges practice judicial activism, and discouraging judges to be exclusively confined to the constitution: in other words, judges should consider the will of the people when judging.
Rosenberg’s and Rosen’s view have yet to be applied to cases concerning detainee’s rights to habeas corpus and the outlawing of torture on prisoner of wars or other types of prisoners. The USA Patriot Act made it legal for George Bush Jr. to detain, torture and deny habeas corpus to both prisoners of war and U.S. Citizens. In addition, it gave Bush the ability to keep all the mentioned practices hidden from the public. Once activist’s found out about Bush’s practices, they began to mobilize against Bush and The USA Patriot Act. In my research thesis paper, I will provide the answer to the following questions: when it comes to illegal prison detention of U.S. citizens, “enemy combatants” (a term that originated from the Hamden v. Rumsfeld case) and prisoners of wars, are the courts the best route for activists and victims to seek justice? Instead of relying on the courts, could there be faster and more effective change if activists try to create a national consensus that shows the humanitarian injustice of such practices by our government? If so, how can that consensus be made? In my research, I have yet to see any articles that use Rosenberg and Rosen’s arguments on court’s as a tool for social change. Thus, I believe that by combining the social movement and judicial aspects of the illegal detention cases, I can bring something new to the discussion.
Both Rosenberg and Rosen have provided very strong arguments and it would be hard to agree with just one. Thus far, the questions that I am proposing are much to broad for a thesis paper, but with these questions, I will be able to narrow my thesis down to something more specific and direct that will prove three points: (1) The USA Patriot Act is in no way constitutional; (2) activist’s should rely very little on courts to bring about social change; (3) activist’s should rely more creating a national consensus, a will of the public, that looks down upon and condemns the mentioned detention practices.
Works Cited
O’Brien, David M., ed. Constitutionla Law and Politics. 6th ed. Vol. 1. New York: W. W. Norton and Company, 2005.
Rosen, Jeffrey. The Most Democratic Branch. New York: Oxford UP, 2006.
Rosenberg, Gerald N. The Hollow Hope: Can the Courts Bring About Social Change? London: University of Chicago, 1991.
Nov
4
Annotated bibliography
November 4, 2009 | | 1 Comment
The Hollow Hope: Can Courts Bring About Social Change- Gerald N. Rosenberg
Rosenberg views the Courts as “fly paper for social reformers who succumb to the lure of litigation” (103). Rosenberg argues that because activists are drawn to the courts, they lose sight of, or do not take advantage of more valuable resources that would bring about social change faster and more effectively. Some of these resources include, creating new ways to mobilize, creating a social conscious of a particular injustice, picketing, protesting and getting nation-wide media attention. This book will help me better understand one of the many differing perspective on how the Supreme Court checks the Executive Branch’s usage of emergency powers and alternative ways of bringing about social changes
The Most Democratic Branch: How The Courts Serve America-Jeffrey Rosen
In his book, Rosen argued that the courts are one of the most effective ways for changing unjust laws because judges are the ones who interpret the constitution in accordance with the will of the country. This is no easy task for anybody, and certainly extremely hard for judges; commonly, politicians create a balance between laws and public opinions. Judges are not politicians. Thus, Rosen is arguing that it serves the public good if judges practice judicial activism, and also argues against judges to be exclusively confined to the constitution. In other words, judges should consider the will of the people when judging. This book will help me to better understand why Judges succumbed to public pressure, especially during the communist interim cases.
“We Still Torture: The New Evidence from Guantanamo Bay”-Luke Mitchell
Harper’s Magazine-July 2009
In this investigative report, Mitchell makes a very provocative argument towards Obama supporters: The U.S. has and always will torture, but it has evolved over time. Obama’s use of torture, mandated by his inherent emergency powers as a president, is not at all different than Bush’s usage. Instead of stopping torture altogether and taking out the root of the problem, Obama’s administration is making methods of torture legal by claiming that some methods of torture do not work but other methods do. This report will be interesting when I consider how the Supreme Court will deal with this new view of torture and emergency powers.
“Judging the Next Emegency”-David Cole
Cole argues that the courts, not the Congress, serve as a better check on the presidents emergency powers. Cole develops his argument by providing several court cases that served as a check on emergency powers during wartime. By analyzing the Courts during the Civil War, World War I, World War II and the Vietnam War, Cole shows two aspects of Court’s decision that make it effective checks on the president: 1. The judge’s conventional wisdom does not follow cultural norms and thus Court decisions have constraint usage of emergency powers. 2. History shows that aside from a few instances, Judges do not fold under the pressure of national emergencies and thus judges are neutral in decisions regarding national security. This article will serve in helping me better understand how courts strike the balance between individual liberties and national security during wartimes. It will also serve as a model of how I should structure my research.
Supreme Court decision: Rasul v. Bush.
In this Supreme Court Decision, the constitutional question at hand was “Do United States courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the U.S. military in Guantanamo bay naval base in Cuba?” The Bush administration argued that it was within their inherent emergency powers to detain foreign enemies for national security purposes. In a 6 to 3 decision, the Court ruled that habeas corpus has to be given to everybody, including non-citizens, who are under control of a sovereign state. Justice Scalia dissented by arguing that the Congress, not the Supreme Court, should decide such issues.
Supreme Court decision: Hamdi v. Rumsfeld
In this Supreme Court decision, the two constitutional questions were: “did the government violate Hamdi’s 5th Amendment right to due process by holding him indefinitely without access to an attorney based solely on an executive branch declaration that he was an enemy combatant who fought against the United States?” More importantly, “does the separation of powers doctrine requires that federal courts defer to the Exectuive Branch’s determination that an American Citizen is an enemy combatant?” The Court issued a per curium opinion. O’Connor gave one of the most sound opinions. O’Connor argued that the 5th Amendment due process guarantees every citizen held in United States soil the right to have his case heard by a neutral decision maker. In my research, I will ask to what extent the ruling in this decision loosened or constrained Bush’s usage of Emergency powers.
Supreme Court decision: New York Times Co. v. United States
This case became to be known as the “pentagon cases”. Nixon attempted to stop The New York Times News Media Co. from publishing classified papers from the pentagon that contained information on the questionable history of U.S. dealings in Vietnam. The main question was, did the Nixon administration’s efforts to prevent publication of what it termed classified information violate the 1st Amendment? The Court issued a per curium opinion and ruled yes because the government failed to prove that publishing the reports would put national security at risk. More importantly, in his concurring opinion, Justice Black argued that the word “security” is too vague and it attempts to “abrogate the fundamental law embodied in the 1st Amendment”. Furthermore, Black strictly argued that neither the Legislative nor the Executive Branches have the inherit power to wipe out the 1st Amendment.
Supreme Court decision: Korematsu v. United States
In this decision, the Court went as far as to acknowledge that racial prejudice was being used by the Executive and Legislative Branches, but still allowed such actions in the name of national security. The main constitutional question was, “did the president and congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent?” This Court ruling will be critical in understanding how Courts balance individual liberties and national security even if a case hinges on racism.
“The Cheney Fallacy”- Jack Goldsmith
http://www.tnr.com/print/article/politics/the-cheney-fallacy
Goldsmith argues that the Obama administration is waging a more effective war on terror than George W. Bush because the administration is using Bush tactics in a different manner. The difference between Bush and Obama’s handling of the war is in their public relations strategies. For example, Goldsmith states, “The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.” Instead of not trying to find legal grounding for questionable policies and actions, the Obama administration argues publicly that it is following the laws. Obama’s interrogation policies are a prime example of Goldsmith’s argument: Obama ordered that the CIA use interrogation methods that are in accordance with law as oppose to bending the law to suit their own interrogation practices.
“The Law and the President: In a National Emergency, Who You Gonna Call?”- Harvey Mansfield
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/563mevpm.asp
Mansfield argues that the Executive branch, by its name and by nature, is suppose to be a strong branch of the government that can use extralegal discretion in times where the law is silent. Mansfield argues that the American presidency embodies this view because throughout its history presidents have overridden Congress’ advisement and used their own discretion: for example, Mansfield states that the Framers “made a strong executive in order to have both power and security, and they took note of emergency occasions where more power gives more security.” Rasul v. Bush, The Prize Cases, Hamdi v. Rumsfeld and Korematsu v. United States are all examples where presidents try to extend their power; however in all cases it was shown that the presidents overextended their power at the price of individual liberties.
“Unchecked Presidential Wars”- Louis Fisher
University of Pennsylvania Law Review, Vol. 148, No. 5 (May, 2000), pp. 1637-1672
Fisher argues that president’s war powers have increased in recent history while the ability of Congress to check the president’s war powers has decreased. Fisher contends that Congress’ inability to check the Executive branch is harmful to individual liberties and to the constitution at large because both branches are not working unilaterally to preserve the constitution and protect people’s liberties from encroachment amidst a war. Fisher’s argument and view of presidential powers is opposite of Mansfield view because Fisher believes that President’s have a narrower range of powers, specified by article two of the constitution; however Mansfield believes that article two of the constitution gives the president, as an executor of laws, a wide range of powers that need not be mentioned in the constitution.
Sep
16
Position Paper
September 16, 2009 | | 2 Comments
Estanlin Llano
SCP 85
Prof. L. Quimby
Sept. 16, 2009
Position paper
The Civil Rights Movement tremendously changed United States civil laws. For example, the ruling in Brown v. The Board of Education declared school segregation unconstitutional, and thus it gave African American children and other children of colored equal protection of the law; in The Heart of Atlanta v. United States, the Supreme Court made it illegal for businesses, that do business with out of state customers and clients, to practice segregation; and lastly, in Jones v. Mayer Co. the Supreme Court declared it unconstitutional for private real estate companies to deny housing to people on the basis of race. Thus, the Jones case gave Congress the power to regulate real estate commerce. All of these cases and many more provided scholars with proof that the Supreme Court and its lower courts are an effective tool for social change (this theory shall henceforth be called the axiom). But that axiom assumes too much.
The common nature of these cases make it seem as though the courts are the best and most effective routes for organizations, such as the NAACP, which played a major role in all of the cases, social movements and individuals to make effective change in United States civil laws. The axiom became so commonly accepted that when Gerald N. Rosenberg, in his book titled, The Hollow Hope: Can the Courts Bring About Social Change, challenged it, he was met with many critics.
Rosenberg views the Courts as “fly paper for social reformers who succumb to the lure of litigation” (103). Rosenberg argues that because of activists are drawn to the courts; they loose sight of or do not take advantage of more valuable resources that would bring about social change faster and more effectively. Some of these resources include, creating new ways to mobilize, creating a social conscious of a particular injustice, picketing, protesting and getting wide national media attention. As with any axiom, it is self evident and only needs a little more facts and basis for it to be inarguably proven. Jeffrey Rosen, set out to provide theoretical and practical proof for the axiom.
In his book, The Most Democratic Branch, Rosen argued that the courts are one of the most effective ways for changing unjust laws because judges are the one’s who interpret the constitution in accordance with the will of the country. This is no easy task for anybody, and certainly twice as hard for judges; commonly, people that create a balance between laws and public opinions are politicians. Judges are not politicians. Thus, Rosen is arguing that it serves the public good if judges practice judicial activism, and discouraging judges to be exclusively confined to the constitution: in other words, judges should consider the will of the people when judging.
Rosenberg’s and Rosen’s view have yet to be applied to cases concerning detainee’s rights to habeas corpus and the outlawing of torture on prisoner of wars or other types of prisoners. The USA Patriot Act made it legal for George Bush Jr. to detain, torture and deny habeas corpus to both prisoners of war and U.S. Citizens. In addition, it gave Bush the ability to keep all the mentioned practices hidden from the public. Once activist’s found out about Bush’s practices, they began to mobilize against Bush and The USA Patriot Act. In my research thesis paper, I will provide the answer to the following questions: when it comes to illegal prison detention of U.S. citizens, “enemy combatants” (a term that originated from the Hamden v. Rumsfeld case) and prisoners of wars, are the courts the best route for activists and victims to seek justice? Instead of relying on the courts, could there be faster and more effective change if activists try to create a national consensus that shows the humanitarian injustice of such practices by our government? If so, how can that consensus be made? In my research, I have yet to see any articles that use Rosenberg and Rosen’s arguments on court’s as a tool for social change. Thus, I believe that by combining the social movement and judicial aspects of the illegal detention cases, I can bring something new to the discussion.
Both Rosenberg and Rosen have provided very strong arguments and it would be hard to agree with just one. Thus far, the questions that I am proposing are much to broad for a thesis paper, but with these questions, I will be able to narrow my thesis down to something more specific and direct that will prove three points: (1) The USA Patriot Act is in no way constitutional; (2) activist’s should rely very little on courts to bring about social change; (3) activist’s should rely more creating a national consensus, a will of the public, that looks down upon and condemns the mentioned detention practices.
Works Cited
O’Brien, David M., ed. Constitutionla Law and Politics. 6th ed. Vol. 1. New York: W. W. Norton and Company, 2005.
Rosen, Jeffrey. The Most Democratic Branch. New York: Oxford UP, 2006.
Rosenberg, Gerald N. The Hollow Hope: Can the Courts Bring About Social Change? London: University of Chicago, 1991.
Sep
1
Autobiographical Statement
September 1, 2009 | | 2 Comments
Estanlin Llano
SCP-85
9/9/2009
Autobiographical Statement
The recent switch in the presidential administration, from a conservative at heart president to a more liberal democratic one, has caused many to cheer in the hopes of a better, prosperous and progressive America. Hope is the operative word used by the Obama campaign that captured the hearts of the new, the experienced and the young and old voters across the land. Despite the tremendous accomplishment achieved by Obama himself (defying and standing up to racial prejudices and notions to become the first African American President is no easy task), I believe that one can not be blinded by all the good that he has achieved. There is plenty of room for criticism, and only through constructive criticism can one truly reach great heights in any chosen field. Thus I ask, what issue has the Obama administration and the recent Democratic majority congress failed to address and fix correctly? How can it be fixed? How can I provide an answer different from any other answers that have already been proposed?
Torture and unlawful detention are the issues I want to discuss. Specifically speaking, I would like to focus on United States torture policy within the last eight to nine years, and how the judiciary branch has addressed the issue and its long history. In addition, when talking about its history, I will bring focus to how and why torture reached a high level of media coverage within the past eight years even though it has been a part of U.S. foreign and domestic policy for over 100 years.
I will approach and view the topic through judicial lenses. In other words, the essay will be guided and influenced by United States court decisions on United States and torture/ “enhanced interrogation techniques,” combatant detention policies, and denial of habeas corpus. Such court cases include, Hamdan v. Rumsfeld, Republic of Iraq v. Beaty, and Stewart v. LaGrand. Each one of these cases is unique in its own way: Hamdan v. Rumsfeld is case involving unlawful detention and interrogation on a prisoner of war; Republic of Iraq v. Beaty involves the torture of prisoner of wars in the Gulf War; and Stewart v. LaGrand highlights the issue of cruel and unusual punishment. The uniqueness of each of these court cases and others will allow the reader and I to better understand United States interrogation, prisoner punishment and torture both within United States jails and jails operated by the United States abroad.
Upon finishing the essay I believe that I will have shown that the United States has a long history of unlawfully detaining and torturing its citizens and prisoners of war. I would also like to answer a questions that have been in my mind for a quite a while: are the Supreme Court and lower courts making it easier for United States official to unlawfully detain and torture peoples or are the courts effectively stopping such practices by officials? How are the courts enabling it or disabling torture and unlawful detentions? How can the courts better help and serve those in prison?