In a 1955 news show called See It Now Edward R. Murrow asked the inventor of the polio vaccine, Jonas Salk, who owned the patent to the vaccine. Salk In a 1955 news show called See It Now Edward R. Murrow asked the inventor of the polio vaccine, Jonas Salk, who owned the patent to the vaccine. Salk replied, "Well, the people. There is no patent. Could you patent the sun?"
This book is about a specific case, but it's also about much more, an indictment of the current patent system. Myriad Genetics, a company held the patents on two key genes, BRCA1 and BRCA2. Everyone has those genes, but women with certain mutations in their BRCA genes face much higher risks of breast or ovarian cancer. Through its patents, Myriad had essentially cornered the market on BRCA testing. The company charged more than $3,000 for a test, and insurers didn’t always cover it. Some women weren’t able to get tested because they couldn’t afford it. And the problem went beyond cost: One woman who joined the lawsuit as a plaintiff tested positive for a BRCA mutation but before undergoing surgical removal of her ovaries wanted a second opinion; because of Myriad’s patents, no other lab could confirm the diagnosis.
The Association for Molecular Pathology along with several other medical associations, doctors and patients sued the U.S.Patent and Trademark Office and Myriad Genetics to challenge several patents related to human genetics. The suit also challenged several method patents covering diagnostic screening for the genes. Myriad argued that once a gene is isolated, and therefore distinguishable from other genes, it could be patented. By patenting the genes, Myriad had exclusive control over diagnostic testing and further scientific research for the BRCA genes. Petitioners spearheaded by the ACLU, argued that patenting those genes violated the Patent Act because they were products of nature. They also argued that the patents limit scientific progress. Section §101 limits patents to "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."
The district court granted summary judgment in favor of petitioners, holding that isolating a gene does not alter its naturally occurring fundamental qualities. (Judge Robert Sweet was ably assisted by his clerk who had an advanced degree in the bio-sciences. Sweey's opinion is worth reading as a clear exposition of both the science and the legal aspects of the case. You can read it here**.)
The U.S. Court of Appeals for the Federal Circuit (specializing in patent cases, it was known as the "nerd's" court) reversed, holding that isolated genes are chemically distinct from their natural state in the human body. In March 2012, Petitioners sought certiorari; and in light of Mayo Collective Services v. Prometheus Laboratories. the U.S. Supreme Court vacated the Federal Circuit judgment and remanded, i.e., sent it back for further consideration On remand, the Federal Circuit again upheld the patentability of the BRCA genes. Again appealed to the Supreme Court which ruled unanimously that genes were not patentable although cDNA was, as it was not a product of nature.
The case was unusual in that the Solicitor General's Office took a position in opposition to that of the Patent Office which had declared that since they had permitted patenting of genes already, to reverse that would just mess up previously decided cases. That the SG's office did so, was the result of compromise worked out by many agencies brought together at the behest of Obama to determine what the position of the government should be. (It's worth remembering that Obama's mother had died of ovarian cancer at 56, fighting insurance companies until her death, and his grandmother died of breast cancer.) The compromise was orchestrated by Mark Freeman who serves a gold star for bringing such disparate parties together. It's also notable that Francis Collins, NIH director was adamantly opposed to gene patenting. He had been a co-worker with Mary Kelly and Mark Skolnick in isolating and linking the BRCA1 and BRCA2 gene mutations to breast and ovarian cancers. Skolnick had recognized the monetary potential in their discovery and founded Myriad genetics, over the opposition of Kelly and Collins, which monopolized BRCA testing and made lost of money.
There are some very appealing characters: Lori Andrews, the "Gene Queen" an attorney who was upset with the patenting of a test for Canavan Disease; Michael Crighton, whose book Next and NYT op-eds laid some of the public groundwork for the court cases; Dan Ravicher, a successful patent attorney who became disillusioned with the way patents were destroying innovation and who formed his own public interest firm to challenge patents; Tania Simoncelli, the individual most responsible for getting the ACLU interested in gene-patenting; and Chris Hansen, the ACLU attorney who argued the case before the court.
A very interesting read that raises all sorts of bioethical, medical, economic, and legal issues.
I remember the intense discussions surrounding the trial and the O.J. trial and the passions it engendered. We didn’t have over-the-air TV at the timeI remember the intense discussions surrounding the trial and the O.J. trial and the passions it engendered. We didn’t have over-the-air TV at the time (still don’t and don’t care) so we could only follow in the newspapers and on the radio.
Recently we watched the docudrama based on this book. It’s excellent and those participants who are still with us have indicated it’s quite accurate. I’ve always enjoyed Toobin’s books so I looked this one up; it’s spellbinding, providing a lot more detail and background than the TV show ever could.
To those insisting the jury should have found OJ guilty, I reply that the jury saw only a fraction of what TV viewers saw. They were sequestered for close to eight months with no access to TV or newspapers (the section on the jury revolt is entertaining) and of the original 12 seated jurors, only three remained by the end of the trial. I don’t know what would have happened had they run out of alternates and that was close to happening. The jurors were treated like prisoners for the many months of the trial, often being sent out of the court while the lawyers argued over interesting points of law, many times with attendant fireworks. They were not permitted TVs or radios, had their newspapers censored and cut up, had their room keys taken away every night, and were permitted one “conjugal” visit per week with their spouse. Conversations with other jurors were monitored to make sure they didn’t talk of the trial.
Couple all this with the long history of police abuse of blacks in Los Angeles and you have a recipe for the verdict. Toobin sets the stage with a short history of the LAPD. It was another of those unintended consequences where an attempt to do something really good backfired in the long run. In an effort to eliminate the rampant corruption that had become the LAPD, it was separated from the highly political world and redesigned to become a more meritocracy. The LAPD became an entity unto itself, completely unaccountable, very self-defensive, and unfortunately a bastion of white privilege and racism.
Toobin gives a great deal of credit for the verdict (aside from a lot of prosecutorial arrogance and incompetence) to Barry Scheck (one of the early founders of the Innocence Project) on the defense team whose meticulous study of the DNA evidence and development of the complicated almost self-contradictory theory that the LAPD was both incredibly incompetent while being sinisterly brilliant. He worked tirelessly, unlike the more famous lawyers on the team who often seemed more interested in their own careers than their client’s future. Scheck’s theory melded perfectly with Cochran’s race-oriented approach and between the two provided mountains of doubt for the jury to deliberate.*
Ultimately, the question came down to reasonable doubt. A key moment was when Furman pled the fifth when he was asked if he had manipulated the evidence. That alone would supply enough reasonable doubt, not to mention the debacle with the glove, I would have voted for acquittal, too. The trial testimony reeked of reasonable doubt in spite of overwhelming physical evidence of Simpson’s guilt.
Some very amusing phrases by Toobin: “On the night of the murders, the jury learned, Kaelin spent from 7:45 to 8:30 P.M. in O.J.’s Jacuzzi—a marination of almost superhuman duration;” and describing one of the prosecutors as “ a trial lawyer with the stage presence of a voice-mail attendant.”
*A comment on how Schenk’s actions in the Innocence Project and the Simpson trial might appear at odds: “According to Richard Lewontin, a professor of population genetics at Harvard, ‘Unlike most lawyers, Barry and Peter really know what they’re talking about when it comes to the technology. When they’ve defended clients, they’ve done brilliant work in showing the problems with the DNA labs. On the other hand, I have to say, they have no compunction about supporting the technology when it’s useful for the defense. They are defense attorneys—and they’re not always consistent, because they’re defense attorneys.’ “
Truly a depressing book although Bryan Stevenson is a veritable hero. A good companion piece to read with this book is the profile of Stevenson in TheTruly a depressing book although Bryan Stevenson is a veritable hero. A good companion piece to read with this book is the profile of Stevenson in The New Yorker, August 22, 2016. It has more information about his Equal Justice Initiative and additional frightful details of how capital punishment is being used in the south to replace lynching. Studies have revealed that in the twelve southern states studied, they found records of about four thousand lynchings. It was the ultimate in terrorism.
Alabama has no legal defender system so many people have been incarcerated without legal representation. Bryan Stevenson was instrumental in using federal funds to create a non-profit organization that provided attorneys for the indigent. The book has many stories of the unjustly incarcerated not to mention children who have been sentenced to life in prison for crimes they supposedly committed while barely in their teens; sometimes crimes they were conned into by adults.
The book is a series of vignettes about people Stevenson has tried to help and who exemplify the problems with race and the “law” in the south. The link that holds all the disparate stories together is the McMillian case. McMillian was charged and held on death row for six years until, thanks to Stevenson, exonerated. The sheriff had buried evidence that showed McMillian could not possibly have committed the crime, but because he was having an affair with a white woman was ripe bait for an official lynching. Ironically, the case played out in Monroeville, Alabama, the town immortalized in Harper Lee's To Kill a Mockingbird.
Interracial marriage, not to mention sex, was feared in the south and made illegal, enforced not just legally but through the terror of lynching. It remained illegal in most of the country until 1967 and Loving v Virginia in 1967. The Alabama Constitution continued to prohibit it even in 1986. It was not until 2000 that a ballot initiative removed it from their Constitution, and even then 40% of Alabamians voted to retain it.
Alabama elects its judges and is one of the few states where a judge can overrule a jury’s recommendation for life in prison with the death penalty. This means that judges compete with one another to be the toughest on crime and what better way to demonstrate that conviction than by sentencing loads of people to death.
Stevenson has appeared several times before the Supreme Court. The McMillian case itself wound up before them. Because Sheriff Tate had withheld exculpatory evidence that would have freed McMillan, he sued but by a 5-4 decision the Court affirmed the lower courts which had decided that the sheriff was acting on behalf of the state rather than the County, and therefore the County could not be held liable for his actions.
Steven's crowning achievement came in Miller v Alabama in which the Supreme Court decided that a life sentence for juveniles was disproportionately severe and unconstitutional.
Reading this book is like watching a train wreck in slow motion. We know it’s painful and really shouldn’t watch, yet the grinding and twisting of theReading this book is like watching a train wreck in slow motion. We know it’s painful and really shouldn’t watch, yet the grinding and twisting of the family members, bashing each other and causing pain and suffering to each other, has a salacious interest that draws the reader in for more. It’s truly a Bleak House.
Americans suffer from the conflict of two myths: the lottery get-rich-quick syndrome versus the Puritan ethic of hard work and avoidance of luxury. The result of this struggle means that we love to see the rich suffer and be unhappy despite, or especially because, of all that money.
This Johnson family will battle presents a good case for why inheritances over, say $1,000,000, should be taxed at 100%. Not to mention a lesson in why there should be better oversight over the trustees. It’s a sad story of kids fighting over huge amounts of money they have done nothing to earn. The whole idea that a will could be successfully contested makes a mockery of the legal system. Johnson had a battery of lawyers drawing up the 48 page will. The children, after his death, didn’t like the result so it was challenged in court. It wasn’t fair,” was their argument. The lawyers didn't care, they were making millions off the battle. So why bother with a will if a court can intervene and change how the money is allocated? Just go straight to probate and let the court decide. Or, as I noted above, tax it all at 100%.
The trusts were set up in a rather bizarre fashion so that the children were skipped and the benefits devolved onto the grandchildren. They were also designed in such a way that control of the huge corporation remained in the hands of the family and not stockholders which provided substantial tax benefits. The trustees were virtually untouchable and exerted control at the expense of everyone but themselves, making themselves quite rich.
The book is structured in an unusual way, laced with snippets of interviews with the family members, often contradicting each other, always hostile. It sometimes feels disjointed with little sense of connectedness or linear feeling. Lots of interesting detail, but little of substance. You feel empty, sad, bewildered, and not a little angry at the selfishness and stupidity of nearly everyone.
The first part of the book is background, family history, setting the stage for the longest trial relating to a will in US history. When the elder J. Seward Johnson died in 1983, he left the bulk of his estate to Basia Johnson, his most recent wife, who was 42 years his junior.
The trial occupies the last section and here the anomalies were most apparent. One juror was heard to exclaim how she couldn't live on $12 a day and what was she to do. She was being asked to sit in judgement on a family, the individual members of which had a net worth of $50 to $100 million each and were fighting over the distribution of another $500 million. In the end, the trial, which lasted 17 weeks before it was settled, was hog heaven for the more than 200 lawyers who participated and who shared more than $24 million in legal fees. There were over 300,000 pages of documents. Had it gone to the jury (many of whom reported being totally appalled at the time they had spent for very little money when` a settlement ultimately resulted) no matter who had won, there would have been decades of appeals until, most likely, all of the inheritance had been transferred from the defendants and plaintiffs to the lawyers. Even lawyers who observed the case thought it represented a nadir of American trial law. I would disagree. We haven’t seen the bottom yet.
Audiobook that’s good shower listening. The dirt can be washed off immediately....more
I suppose that anyone who has read about the career of Clarence Darrow is familiar with his famous defense of Richard Loeb and Nathan Leopold. In shorI suppose that anyone who has read about the career of Clarence Darrow is familiar with his famous defense of Richard Loeb and Nathan Leopold. In short, a little Jewish boy (Richard’s cousin!) from a wealthy Chicago family, Bobby Franks, was kidnapped after school and murdered by two intelligent and wealthy college students, both also Jewish. Suspicion initially fell on teachers at the school Bobby attended, the Harvard School, and despite lots of exculpatory evidence several of them were held by the police and beaten severely to try to get them to confess. They didn’t and finally their lawyers convinced a judge to release them
Then there was an eyewitness who saw a gray Winton car right by the school at the time Bobby was kidnapped. Soon every person in Chicago with a gray Winton was being reported to the police. One owner parked his car in the garage and walked to work rather than having to face the police almost every day as people reported seeing him in his gray Winton. (The car they actually used was a dark green Willys-Knight.)
Pedophiles, homosexuals, anyone the police considered a “sexual deviant” were rounded up for questioning, although even the district attorney noted that it would be a rare event indeed for a pedophile to ask for a ransom and set up such an elaborate mechanism to collect it.
The story is horrifying in its depiction of the two psychopaths. Convinced they were smarter than everyone else (Richard was the youngest graduate of the University of Michigan,) they had successfully embarked on a series of petty vandalism before deciding to commit the “perfect murder.” They almost succeeded, except for Nathan’s glasses.
There was no question as to their guilt. They had confessed and revealed all the details to the police. They were perhaps lucky that they committed their crimes at a time when research in genetics and animal instinct was being popularized. Darrow, who had engaged in a “lifelong campaign on behalf of the defenseless” had read Altgeld’s book, Our Penal Machinery, which argued that “criminal behavior... was less a consequence of free will and deliberation and more a matter of education, upbringing, and environment. The majority of criminals—the overwhelming majority, Altgeld stressed—had grown up in circumstances of dire poverty, in families where one or both parents were absent, and without the benefits of education, schooling, or discipline.”
Darrow was also determined to rid society of capital punishment. He had defended numerous people who faced the death penalty. The Loeb/Leopold case was perfect “not because the defendants were deserving... the trial of Leopold and Loeb would capture the attention of the nation. … "The importance of instinct in the animal world, Darrow stated, provided a clue to its significance in higher forms of life. Human beings believe that they act rationally, but might they not also be subject to instinctual drives? …”human beings were no more capable of free agency than the mason bee or the red ant."
The trial provided a forum for the relatively new field of psychiatry (even then occasionally called “alienists”) that wanted to impress upon the rapt audience their “belief that criminal behavior was a medical phenomenon best interpreted by scientific experts.” That is, if they could avoid an adversarial battle between experts (each getting $1,000 a day - a huge amount of money in those days,) which would require the cooperation of the state’s attorney. The facts might not be at issue but the interpretations could very well be, and that would be embarrassing to the new profession. Darrow countered with the argument that no one wanted to see the boys freed by claiming insanity; they were trying to avoid the death penalty. Interestingly, efforts to broadcast the trial --a first -- were nixed after opposition from religious and social groups worried about their children being exposed to the filth (homosexuality) that would come out during testimony.
To explain Darrow’s brilliant strategy would be to reveal too much. Excellent read for anyone interested in Darrow, criminal motivations, and the justice system not to mention early nineteenth century culture....more
I remember sitting in school in 7th grade, counting down the seconds to the execution of Caryl Chessman. I was not one of those who cheered when the cI remember sitting in school in 7th grade, counting down the seconds to the execution of Caryl Chessman. I was not one of those who cheered when the clock struck the hour. I think even at that age, I was uncomfortable with the whole idea of the state killing someone. Today I’m against capital punishment for most situations, partly because I’m come to realize how incompetent the state and justice system usually are and that most punishment in this country, at least, has less to do with justice than it does with getting revenge.
This book has two stories: one the history of capital punishment in the United States; the second, the railroading of a minimal IQ black man in Greenwood, S.C. (why is it always South Carolina?) who was charged with the murder and rape of an elderly woman. The trial included perjury, incompetence and withheld evidence.
Charges for which capital punishment could be applied have changed drastically over the centuries. It used to be you could be put to death for stealing a loaf of bread or even marrying a Jew. Hangings were still public entertainment in the colonies and the Founding Fathers approved of it conceptually (Thomas Jefferson and Benjamin Franklin being opposed to it,) the eighth amendment provides interesting latitude in its application by the states. There is a movement in the legal community now to regard capital punishment as not so much cruel as “unusual” and therefore should be declared unconstitutional. Certainly, it’s become more rare, fewer and fewer states glorying in their toughness and celebrating their “frontier justice.” Michigan was the earliest to abolish it (1846) followed shortly thereafter by Wisconsin (1853,) Maryland being the latest (2013.)
The background of Elmore’s innocence project lawyers makes a fascinating story in itself. Diana Holt, for example, had been sexually abused by her stepfather, involved with drugs, done poorly in school, generally a mess, when she had something of an epiphany. She went to community college** where she got straight A’s followed by continued academic achievement at Texas A&M and then also in law school while raising children. According to her colleagues she was a tenacious investigator and brilliant at getting people to talk. She discovered all sorts of malfeasance in the prosecution of Elmore. For example, pubic hair samples linked to Elmore had been collected *after* he was arrested rather than from the crime scene. Exculpatory hairs, one being from a Caucasian collected at the scene, was never presented and later found in the back of a drawer. Holt worked on his case for 20 years, beginning first as an intern at the Center for Capital Litigation in South Carolina.
It should be noted that innocence is not grounds for overturning a conviction. Appellate courts look not at fact, but at errors of law. The dissent in Elmore v Ozmint reiterates that sad state. Justice Wilkinson writes that Elmore had been tried three times and been convicted each time. My distinguished colleagues in the majority respond to the dissent with rhetoric and a protestation that they are not doing what in fact they are doing—overturning factual findings and credibility determinations of the state system that painstakingly heard the evidence in this case. But at the end of the day, our system is indeed grounded on facts and evidence. If the state courts had defaulted in their job, that would be one thing, but it is hard to find a case that received a more thorough review under the well-settled Strickland standard than this one did. Now, I suppose Wilkerson may be right aqs a matter of law. Or, as Justice Scalia put it in Re Troy Anthony Davis, a writ for habeas corpus: This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable. (http://www.supremecourt.gov/opinions/...) Yet, it seems to me that innocence should trump just about everything and when trial courts engage in malfeasance, no matter how many trials someone has, shouldn’t exculpatory evidence best all else?
Justice is a concept everyone wants but is all too often defined as revenge rather than fairness. As of May 2014, 14,000 people have been executed in the United States and 3,000 remain on death row. It has been estimated that 4% of those executed were innocent. http://www.pnas.org/content/early/201... and more information at http://www.deathpenaltyinfo.org/innoc...
** This is another example of why I am such an advocate of community colleges. They provide second chances for many people who would otherwise be lost to society. I know personally of several cases of women, divorced or deserted by their husbands, married too early, who held down as many as three jobs while raising two or more children AND taking a full load and making the Dean’s List beside. I had one student who got up at 3 a.m. to milk cows, took care of the kids, went to class, and then had an evening job as well. First rate student in her thirties. ...more
I hate stars. I gave this book three even though I disagree vehemently with Bork, but it's kind of fun. His jeremiad, Slouching Toward Gomorrah uses GI hate stars. I gave this book three even though I disagree vehemently with Bork, but it's kind of fun. His jeremiad, Slouching Toward Gomorrah uses Gomorrah as a metaphor for the United States. The book reminds me of the cantankerous old relative at the dinner table who can’t stop talking about how terrible things are today. One can’t even find time to pass the peas. Bork’s thesis is simple: our culture is immoral, and it’s all the liberal’s fault.
Society’s degradation has been caused by radical egalitarianism, radical feminism, popular culture, the Supreme Court, and rock n’ roll music (which he admits never having listened to). Portable radios share much blame for they permitted youth to listen to music without parental supervision. The Internet (which he admits to never having looked at) is a quagmire of dirty pictures, political correctness, and Afro centrists. He leaves virtually no one unscathed, attacking both the Roman Catholic Church and Protestant denominations that are living in a “leftist dream world,” and have become feminized.
Bork’s solution to this state of affairs is censorship, democratization of the Supreme Court, and religion - where this religion is to be found among today’s debased denominations he does not say.
The problem with this book is that it’s all assault and no finesse. Never does he engage the reader in a discussion of both sides of an issue. He creates a straw man and then knocks it over. He falls into the trap he accuses liberals of falling into; “assaulting one’s opponents as not merely wrong but morally evil.” He confuses cause with symptoms. Never does he reveal evidence as to how the Beatles cause immoral behavior. He states simply, “Rock and rap are utterly impoverished by comparison with swing or jazz or any pre-World War II music [personally, I always thought swing was the epitome of decadence] impoverished emotionally, aesthetically, and intellectually.”
Bork cannot resist name-calling. Liberals are fascist, totalitarian, and Nazi-like. Multiculturalism “is barbarism,” “feminist ideology is a fantasy of persecution.” He castigates those “cafeteria Catholics” who subscribe only to those elements of Catholicism with which they agree and then he proceeds to rebuke the Catholic Church’s call for a “just wage”, calling it “misunderstood economics.” Not an American institution escapes Bork’s wrath: the universities, colleges, government, the arts, the churches and the press have all been indoctrinated by liberals (that must be why we've elected so many Republicans in the last 25 years.)
For a self-defined conservative, Bork had some radical ideas. He would overturn the Constitution and Supreme Court decisions to be overridden by a majority vote of the Congress. He does not explain how, for example, if popular culture and society are so debased, a legislature elected by those debased people will fix Supreme Court decisions. It seems to me the whole purpose of the Supreme Court being immune to public pressure (as Franklin Roosevelt discovered to his dismay) is to provide a conservative brake on society, to constrain the short-lived stimulus of fleeting majorities. He is against an activist court. Not just liberal activism, but conservative as well, suggesting at one point that it all began with the conservative court that wrote into the constitution all sorts of free market principles that are not there. The liberals then just continued this process of activism but from a cultural perspective.
And what do you bet, he visited adult bookstores....more
Mark Gitenstein was Chief Counsel to the Senate Judiciary Committee, chaired by Senator Joseph Biden, during the Bork nomination hearings. Bork had beMark Gitenstein was Chief Counsel to the Senate Judiciary Committee, chaired by Senator Joseph Biden, during the Bork nomination hearings. Bork had been nominated to replace Justice Powell on the Supreme Court. Gitenstein has written an insiders account of the process in Matters of Principle.
The battle between Democrats and Republicans remains an ideological conflict. Both sides had very different judicial philosophies. Judge Bork argued for a very narrow interpretation of the Constitution; that rights not specifically enumerated in the Constitution could not be protected by the federal government. His opponents argued that Bork ignored the ninth amendment that retained rights in the people even if they were not specifically spelled out and that the court had an obligation to protect those rights. (See The Tempting of America by Robert Bork for a very concise explanation of Bork’s judicial philosophy). Thus, according to Bork, if the Constitution did not categorically state that you could educate your children, you could be denied the right to educate them at home or send them to private school; that because segregation or integration were not mentioned by the framers, segregation was a legitimate form of social structure for states to adopt; and because no generalized right to privacy was articulated, states could prohibit the sale of contraceptive devices or permit wholesale abortion if they desired.
This opposition to Griswold v. Connecticut is interesting because it reflected a complete about-face. In 1963, articulating his libertarian stance, Bork had argued that Griswold reflected a generalized right to privacy even though it was not specifically declared in the Constitution. By 1971 his position had completely reversed. This position switching was not unusual. After all Bork had begun as a Socialist and as a young man had even handed out Communist leaflets. This was an outgrowth of his poor background. After college, however, he decided the way to way was strictly through a free market approach and from there he adopted the libertarian stance, radically arguing against the civil rights movement and legislation as an infringement on a white man’s right to sit next to whom ever he wanted, a denial of his right of association.
By 1971 he was unalterably opposed to one-man-one vote decisions and court decisions that struck down legislation forbidding the establishment of private schools. By 1937 he was describing himself as a “Burkean” and was irritating his friends on the right by suggesting that a balanced budget amendment was foolish and silly. He was particularly enrage by “intellectuals” (although a major reason for his escape from a Washington law firm to Yale University in the fifties was his desire for a more intellectually stimulating environment.) By Burkean he meant opposition to “broad sweeping abstract principles as a way of organizing society, because they tend to be highly coercive; respect for community, tradition, constitutional structure; a willingness to look at a law and ask ‘will it do more good than harm.”’
So Bork had made the journey from “Socialist to Communist to New Dealer, to free-market advocate, to libertarian, to strict constructionist, to statist, to Burkean.” His mentor Alexander Bickel (The Least Dangerous Branch is on my TBR list) who had also moved from liberalism to Burke counseled to always push himself and never to cower in public debate, nor fear unpopular positions. That was were he was at the time of the nomination hearings. He was also a prolific writer who enjoyed provoking, as most of the writings were originally speeches that were intended to provoke. Those provocations made it difficult for the White House which was trying to portray him as a moderate replacement for the middle-of-the-road Powell.
Bork’s nomination was a response to Reagan’s failure to achieve adoption of his social agenda. Patrick Buchanan, Reagan’s communications director had argued, “The appointment of two justices to the Supreme Court could do more to advance the social agenda — school prayer, anti-pornography, anti-busing, right-to-life and [ending] quotas in employment — than anything Congress can accomplish in twenty years.” This use of the judiciary to achieve political ends was not new. Andrew Jackson and Franklin Roosevelt had personally orchestrated campaigns to change the philosophical nature of the court. The Senate has always considered it to be its prerogative to thwart such ventures.
In the end, Borks’s extremest positions on numerous issues, obvious from a trail of documents, made it impossible for the White House strategy to portray him as a moderate. They lost the support of the moderates and southern Democrats whose votes they needed for confirmation. Ironically, though, a major reason for Bork’s defeat was less his judicial philosophy than the failure of the Reagan administration to publicly support its nominee. Bork had pleaded with White House staff to have the president issue a speech on his behalf; but Reagan never left the sidelines. Bork’s position - that no set of values was supreme (“there is no principled was to prefer any claimed human value to any other”) is a startling proposition coming from a self-proclaimed conservative and the author ofSlouching for Gomorrah for it means courts would be prohibited from enforcing the values they wanted adopted. This logically led him to the conclusion that courts can only enforce contracts, the Constitution being merely another contract that must be read literally. The judge must not choose between a competing set of values, but must return to the document for a literal reading much like a will.
Perhaps ironically, Thomas Grey of Stanford has pointed out in 1975 that “Bork’s views and those of New Deal liberal Hugo Black were similar in that ‘constitutional doctrines based on sources other than the explicit commands of the written constitution were illegitimate.’” Black has also used a Burkian approach to argue against the Supreme Court’s imposition of arbitrary values and creation of “right” that prevented New Deal legislation. This conservative Supreme Court argued that an employee had a “right to work” for as little per hour as he wanted. Bork has recently stated that the Supreme Court's activism began with this early twentieth century court; that it wrote all sorts of free market “nonsense” into the Constitution. So Bork has argued he was simply using the liberal’s criticisms of an earlier court when he decried the Warren court’s activism. That earlier court had also laid down much precedent for the development of privacy and individual rights, however; a trend that Black noted and Bork has perhaps ignored. In Pierce v Society of Sisters (1925), a decision that Bork has called “intellectually empty,” the court struck down a law that would have prohibited home schooling
Bork contended the 9th amendment, often used to define rights not specifically enumerated in the Constitution, is essentially meaningless, yet therein lies the most important core of original intent of the Framers....more
The historian HW Brands, in an article in The Atlantic, “Founder’s Chic” (September, 2003), has suggested that the reverence Americans, especially polThe historian HW Brands, in an article in The Atlantic, “Founder’s Chic” (September, 2003), has suggested that the reverence Americans, especially politicians, display toward the Constitution, is ill-placed. (We’re certainly seeing an over-abundance of Constitution worship on the part of the Republican candidates in 2011-2012 as I write this.) He argues the Founders, who barely agreed on anything and filled the final document with compromise after compromise, as revolutionaries, would be quite sympathetic with supporting an evolutionary document.
Amar’s book goes a long way toward developing a thorough understand of the background and historicity of the document which everyone claims to understand but few do; a document that supports both dual (states and federal government share power equally) and cooperative federalism (some powers are reserved to the states but they remain subservient to the federal powers) simultaneously.
We came perilously close to not having a constitution, and I am sure were it to be proposed in today’s climate, with today’s puny Washington minds, it would never be ratified. (Notice that even Michele Bachmann shut up about the Constitution after her little seminar with Scalia - he was probably speaking way over her head.)
It is to the credit of the anti-Federalists, many of whom vigorously attacked the unauthorized work done by the Constitutional Convention (they were supposed to just rewrite the Articles of Confederation) that in the end they approved the Constitution, which in some states did not receive the required two-thirds vote majority, and went on to serve nobly in the new government, e.g., James Monroe.
Some have argued the Constitution was a failure. It lasted only some seventy years and that only because of numerous compromises regarding slavery that became mere band-aids over a festering wound, an issue the original framers had decided to push off for later generations. It wasn’t until the Civil War and especially the passage of the Fourteenth Amendment with its application of rights to the states (albeit later gutted by the selective incorporation dictated by the Slaughterhouse cases in 1873 which mandated selective incorporation of the Bill of Rights)* that one could argue we achieved full freedoms.
The fact remains that much of the Constitution is obscure and leaves wide latitude for interpretation. Sometimes using the words “persons”, sometimes the more populist sounding “people,” the ninth and tenth amendments have provided grist for many in the mill of public opinion. They would appear to “reserve” rights to the people and the states and imply that “nothing in the Bill of Rights should be read as conferring additional government power. . .[but] the Ninth Amendment warned readers not to draw certain types of negative inferences about constitutional rights. . . a text that explicitly expressed certain rights was not to be read to negate other constitutional rights derivable [or implied, a concept that has caused all sorts of controversy] from the document’s general structure.” (pg 327) For example, the Sixth Amendment’s right to counsel could not be interpreted to negate a person’s right to represent himself.
It’s ironic that the Federalists generally opposed a “bill of rights” because they feared that such explicit enumeration of rights would weaken generally more expansive protections of the original constitution and unintentionally reduce implicit rights. The Nionth amendment was the compromise that resulted.
I could go on and on as is my usual wont. Amar’s structure for the book is unusual but quite readable, integrating concepts broadly yet chronologically. Chapter headings, “Making Amends” which discusses the first ten amendments, and “The New Birth of Freedom” which reviews events and amendments following the Civil War give only a broad hint as to content, but there is an excellent index and over one hundred pages of notes (I actually prefer footnotes, but then I’m a queer duck.)
*Interestingly Clarence Thomas in McDonald v Chicago while concurring with the majority which used the due process clause to apply the 2nd amendment to the states, wanted to use the privileges and immunities clause which would have strengthened, IMHO, the Bill of Rights in its application to the states across the board. I think he was right....more
The book is about a particularly interesting case: Employment Division v Smith. Hidden behind this seemingly innocuous name lay a conflict pitting theThe book is about a particularly interesting case: Employment Division v Smith. Hidden behind this seemingly innocuous name lay a conflict pitting the Establishment Clause and the Free Exercise Clauses of the First Amendment to the Constitution. Perpetually in conflict, those two clauses of the First Amendment create a tension that all feel and few understand. Just how far can the government go in controlling behavior that is in conflict with society’s mores yet which for some may be considered an essential religious practice?
For some Native American Indians tribes peyote is a sacred sacrament, a gift that embodies God, much as wine might represent the blood of Christ in Catholic religious practice. Yet peyote was also considered a dangerous drug its use to be prosecuted to the fullest extent under the War on Drugs. It pitted two very interesting men against each other in the oral arguments before the Supreme Court and the result was new legislation, the Religious Freedom Restoration Act of 1993, that would also be declared unconstitutional four years later as an unconstitutional form of legislative power in City of Boerne v. Flores as an wrong use of the 14th amendment as it applied to the states. This resulted in another congressional action, Religious Land Use and Institutionalized Persons Act, which gave special grants to religious institutions. Whew. Got that? So the RFRA was still constitutional as it applied to the federal government, but not the states. The RFRA has been used by many minority religious groups to challenge federal statutes as being onerous to their religious practice, including payment of income taxes. They have lost, in most cases because the courts have ruled the statutes had a compelling secular interest.
Ironically, the Native American Church didn’t exist before 1918 when it was formalized at the suggestion of a white man, James Mooney, as a way of insulating itself and its practices, from mainstream harassment with protection from under the free exercise clause of the Constitution. There has always been tension between the free exercise clause, which permits unfettered religious practice in theory, and the establishment clause, which is intended to prevent government from favoring one religion over another. But even Thomas Jefferson, author of the Virginia Statute for Religious Freedom made a distinction between established religions as he saw them and the practices of those “aboriginal inhabitants. . .who inculcate a a sanctimonious reverence for their ancestors.” So the struggle to reconcile peyote use with governmental efforts to ban it had long roots. **
It all got started because of the state of Oregon denying unemployment benefits to two employees because they had used peyote, an illegal drug, as part of a religious ceremony and as a method to help alcoholics. The question before the court was, “Can a state deny unemployment benefits to a worker fired for using prohibited drugs for religious purposes?” The answer, in a six-three decision written by Justice Scalia was, *SPOILER ALERT* “ Yes. Scalia observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws” What astonished Court observers was the breadth of the majority opinion which threw out the Sherbert established in Sherbert v Verner in which a Jehovah’s Witness (many landmark religious test cases have involved this sect,) a Sabbatarian who insisted on a Saturday sabbath, was fired when she refused, on religious grounds, to work on a Saturday. The Court ruled that to force her to work on her Sabbath was not “a compelling state interest” and therefore a violation of the free exercise clause and she was entitled to unemployment benefits. A similar case, also involving Jehovah’s Witnesses (Thomas v Review Board) involved a man who refused to work on tanks arguing his personal interpretation of the Bible would prevent him from helping to create instruments of war. He, too, was entitled to unemployment benefits, said the court. One difference in the Smith case was that no state could pass a law prohibiting worship on Saturday; they could, however, declare peyote an illegal drug. But again, this case involved unemployment compensation. The decision caused a whirlwind of legal activity in response to Justice Scalia’s opinion which seemed to go much further than was asked for by the Oregon AG. They essentially overturned the Sherbert test and, in the eyes of some, stripped minority religious groups of special protection under the free exercise clause.The new rule was that if the state didn’t target religion, “then minorities whose practice was destroyed were out of luck.”
Epps argues that the case was wrongly decided as an infringement on religious freedom, yet even Thomas Jefferson made a distinction between religious belief and the action that flows therefrom. In Reynolds v US, Justice Waite (a decision surprisingly not mentioned in Epps’ book) made that point in denying the religious right to polygamy. “The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." The Court believed the true spirit of the First Amendment was that Congress could not legislate against opinion, but could legislate against action.” But his harshest words are for Scalia, a “great and powerful judge who had seen the Smith case not as a dispute between real people but as a chance to play with the law, to take away part of our heritage of religious freedom.”
Epps does a great job of humanizing those involved in the dispute and getting us to sympathize not only with the claimants, but the state as well. Al Smith had his own alcohol related demons and Attorney General Frohnmayer was fighting to save the lives of his three daughters who had inherited a devastating anemic disease through a recessive gene from him and his wife. It’s a tragic story, and one cannot help but admire Frohnmayer and his family as they suffered one medical calamity after another. He is truly a heroic figure. This is a really good book that will make you think about the meaning of justice and whether that concept as applied by the law can be separated from the individuals and people it is supposed to protect.
** Not to mention polygamy. In Reynolds v United States (1878)the Supreme Court held that religious duty was not a suitable defense to a criminal indictment (Reynolds had been criminally charged with bigamy under new Utah anti-polygamy statutues.) Justice Waite declared in the Constitution "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of the good order."
Another case that might be of interest to those pursuing this divisive issue is LARKIN ET AL. v. GRENDEL'S DEN, INC. of 1982. The court was asked to decide whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment. It ruled the statute unconstitutional under the establishment clause since it effectively gave a religious body the power to make a political decision, i.e. the granting of a liquor license. The only dissent came from Justice Rehnquist and it makes interesting reading because his rationale seems to be solely that the law makes sense. It’s also interesting to note that the Catholic Church was granted an exemption to use wine during Mass during Prohibition.
The Fourteenth Amendment, the longest and most complete, is without doubt the most significant. It was an attempt by the 39th Congress to constitutionThe Fourteenth Amendment, the longest and most complete, is without doubt the most significant. It was an attempt by the 39th Congress to constitutionalize the Civil Rights Act of 1865 that President Andrew Johnson had vetoed, the first veto of a major piece of legislation to be overridden by Congress. The first section included four significant clauses: the Citizenship Clause, the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause (note "or" not the "and" of Article IV.) Each of the clauses has had enough of an impact to be worthy of being considered a new Constitution, the third if you count the Articles of Confederation as the first.
Barron v Baltimore(1833) had applied the Bill of Rights to federal jurisdiction only. Recent scholarship, epitomized by Curtis in this book is arguing that jurisprudence since the 1870's has ignored the history of the 39th Congress discussions that, he says, clearly intended to apply to Billof Rights to the states. Certainly the text would seem to so indicate. Section 1, following the first sentence that made freed slaves citizens (thus overturning Dred Scott, begins "No state shall..." On the face of it, that would seem to be as clear an indication as of intent as possible.
Nevertheless, the Supreme Court decisions, beginning with the infamous Slaughterhouse Cases, and the Cruikshank case refused to accept this and argued the due process clause still applied only to federal jurisdiction. Thus was the 14th amendment completely defanged leaving many of the Black Codes and segregation laws in place and making the Civil Rights Act of 1875 just a piece of paper. Justices Hugo Black (ironically former KKK member) and Frankfurter (former darling of the left who became a staunch advocate of judicial restraint) battled over the historical basis for the 14th. Black's dissents in cases made it clear that he believed the 14th was intended to apply the Bill of Rights to the states. Frankfurter and Charles Fairman belittled any opposition to their view that this position was nonsense. Frankfurter believed the Due Process Clause just gave the Supreme Court too much power, and I'm sure he is spinning in his grave at what was accomplished by the Warren Court that used the Due Process Clause to selectively apply much of the Bill of Rights to the states. Brown v. Board of Education, overturning the infamous Plessy decision of "separate but equal" notoriety would never have been possible without it.
Professor Curtis and others like William Crosskey challenged Frankfurter and Fairman and their view seems to have won, even though antagonism to application of the Bill of Rights under the 14th was rampant even in the eighties. Justice Clarence Thomas has taken an even more interesting approach arguing that the Due Process Clause has been used inconsistently to apply the Bill of Rights to the states and he maintains, referring to historical evidence, that the clear intent of the 39th Congress, under Bingham, Stevens, and Trumbell, and the Republican majority, was to use the Privileges or Immunities Clause to make the application. His concurrence in MacDonald lays it out very nicely.
Curtis has written an excellent summary of the history of the controversy including a thorough rebuttal to Supreme Court's jurisprudence in this regard in the late 19th and early 20th centuries. Curtis points out that Slave Power suppression of free speech rights, the "gag rule" for example, and the suppression of due process through the Fugitive Slave Acts, before the Civil War radicalized the Republican Party, which, thanks to secession, gave them complete control of the Senate and the House. The attempts to push slavery into the territories of Kansas and Nebraska, the elimination of the Missouri Compromise, and their justifiable fear that Justice Taney might declare in the Lemmon v New York case then moving its way through the courts, that slavery could not be declared illegal in the states, all contributed to this radicalization. Clearly, their intent was to force the Bill of Rights on the states and overturn Barron (Bingham had even brought a copy of the decision to read on the floor of the House, many members not being familiar with it.
Good companion books to read with this one:
1. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869 (New York: Norton, 1974)
2. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America (New York: Henry Holt, 2013), Kindle
3. Gerard N Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment ([Place of publication not identified]: New York University Press, 2016), Kindle ...more
I think Martini is better than Grisham, particularly his courtroom scenes. In Undue Influence, Paul Mondriani is defending is sister-in-law, Laurel VeI think Martini is better than Grisham, particularly his courtroom scenes. In Undue Influence, Paul Mondriani is defending is sister-in-law, Laurel Vega, who has been accused of murdering the new wife of her erst-while husband, a state legislator who is under investigation by the feds for bribery. Laure|’s two children become pawns in a tense drama that pits her attorney unwittingly against the mob and a local police lieutenant who hates the contents of his abdominal cavity. The evidence against Laurel is overwhelming ,and the case has some neat surprises for the reader....more
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