rule of law (was RE: Iraqi and American democracy)

Wed Jul 20 14:06:28 PDT 2005

Does it count as a "rule laid down" that "this rule can be suspended
whenever the President declares that a 'state of emergency' exists"?  

Apropos of John Roberts, I think that the main issue by far is whether
he basically endorses some version of the "rule" set out above (based,
perhaps, on a reading of the AUMF as a limitless delegation of power by
Congress to the President, or, perhaps, on the Yoo understanding of
inherent C-i-C powers that the DOJ has in fact not rejected even though
it withdrew the August 1, 2002 memorandum that set out the theory).  The
Hamdan case certainly isn't encouraging on that score.  And everyone
should read the story in today's Washington Post about Paul Clement's
statement to the Fourth Circuit about the US being a battleground (and
therefore Jose Padilla has no rights whatsoever that the US is
apparently bound to respect).  Carl Schmitt would be delighted (and I
wonder if he would even be surprised) to know that he is ever more the
reigning philosopher of American law.  So will Democrats have the
backbone to press such issues (and risk appearing "soft on the war on
terror")?  If, as I suspect is the case, the answer is no, then the rest
of the hearing is basically pointless, since he is obviously going to be
confirmed unless something truly extraordinary happens.  

sandy

________________________________

From: Mortimer Sellers [mailto:msellers at ubalt.edu] 
Sent: Wednesday, July 20, 2005 3:59 PM
To: Sanford Levinson; Malla Pollack; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
Cc: Mortimer Sellers
Subject: RE: rule of law (was RE: Iraqi and American democracy)

I too would strongly recommend Tamanaha's book on the Rule of Law to
those of you who have not read it yet.

He points out that the concept of "the rule of law", like "democracy",
tends to be expanded to include everything good (in the eyes of the
speaker) and particularly human rights, because "the rule of law" has
such favorable connotations.

Here, too, I would say that the clear straightforward and simplest
definition is the best.  The rule of law requires limiting governmental
discretion through rules laid down in advance, and following the rules
laid down.  This means that it would be possible to have an unjust rule
of law regime, just as it would be possible to have an unjust democracy.
No state is just without the rule of law, but there must also be just
laws.

I assume that judges who embraces the rule of law as a value also accept
the fundamental justice of the legal system under which they work and
believe that it constrains their discretion in interpreting the law.

          Tim Sellers

	-----Original Message-----
	From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
	Sent: Wednesday, July 20, 2005 4:34 PM
	To: Malla Pollack; Mortimer Sellers; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
	Subject: RE: rule of law (was RE: Iraqi and American democracy)

	I don't think that Marla is in the least "odd" in raising these
questions.  A superb overview of the notion of "rule of law,"
incidentally is contained in a recent, short, and very readable book by
Brian Tamanaha (Cambridge U. Press).  

	sandy

________________________________

	From: Malla Pollack [mailto:mpollack at uidaho.edu] 
	Sent: Wednesday, July 20, 2005 3:33 PM
	To: 'Mortimer Sellers'; Sanford Levinson; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
	Subject: rule of law (was RE: Iraqi and American democracy)

	Prof Sellers lists "the rule of law" as one central component of
legitimate governments.  This prompts me to raise the meaning of that
phrase in regards to the confirmation of justice nominee Roberts.  CNN
keeps replaying Pres. Bush's assertion that the candidate should be
confirmed because inter alia he believes in the rule of law.  Also
repeated in the media is the claim that pro-choice advocates should not
be alarmed because Roberts said that Roe was "settled law" during the
hearings on his nomination to the D C Cir. 

	            However, I have always thought that to a Sp Ct
justice, the "rule of law" and "settled law" are much less constricting
than to other legal and political actors.  I wonder if I am "odd" in
believing that (i) Robert's comment re Roe does nothing to suggest he
would not vote to over rule Roe if a Justice, (ii) his belief in the
"rule of law"  tells  me little, if anything, about his views on the
proper actions of Sup Ct Justices. 

	Malla Pollack

	Professor, American Justice School of Law

	Visiting Univ. of Idaho, College of Law

	mpollack at uidaho.edu

	208-885-2017

	-----Original Message-----
	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mortimer Sellers
	Sent: Wednesday, July 20, 2005 1:19 PM
	To: Sanford Levinson; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
	Subject: RE: Iraqi and American democracy

	Sandy is right about the value of clarity, which is why we
should try to use the simplest and most straightforward definitions of
important terms such as "democracy" in discussing constitutions.

	Politicians will, of course, cling to any term that has positive
connotations and try to use it for their own purposes.

	Still, I think that President Bush is right to say that no
government is legitimate unless it is democratic.  He should add (and
sometimes has, I think) that just governments must also respect the rule
of law, fundamental human rights and constitutional checks and balances.

	Just because important values are abused and disrespected by
politicians does not mean that they should not be praised and carefully
articulated by law professors.

	         Tim Sellers

		-----Original Message-----
		From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
		Sent: Wednesday, July 20, 2005 4:01 PM
		To: Mortimer Sellers; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
		Subject: RE: Iraqi and American democracy

		I have no particular objection to Tim's stipulative
definition, especially when it is accompanied by his point that
"democracy-as-unrestricted-majority-rule" is in obvious tension with
standard notions of "constitutionalism," including protection of
"fundamental rights" against majoritarian abridgement.  The point is to
be clear about the definition one is using, which one rarely finds in
the speeches of, say, George W. Bush (or, to be fair, John Kerry or any
other politician who loves to prate about the concept).

		sandy

________________________________

		From: Mortimer Sellers [mailto:msellers at ubalt.edu] 
		Sent: Wednesday, July 20, 2005 2:58 PM
		To: Sanford Levinson; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
		Cc: Mortimer Sellers
		Subject: RE: Iraqi and American democracy

		Sandy raises the question of what we mean by democracy
and suggests that it may be an "essentially contested" concept.

		Democracy does not strike me as a particularly difficult
concept to grasp.  It means majority rule.  The problem arises from
overvaluing democracy. Democracy is an important element in any just
constitutional order, but not the only value.  Human rights, the rule of
law and constitutional checks and balances (including the separation of
powers) are also extremely important.  By using lazily "democracy" as a
shorthand for this broader set of values we make it easier for
governments to establish illiberal (and therefore unjust) democracies.
All legitimate governments are democracies.  Not all democracies are
just.  Being a democracy is not enough, on its own, to legitimate the
constitutional order in Iraq (or the United States).

		             Tim Sellers

			-----Original Message-----
			From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Sanford Levinson
			Sent: Wednesday, July 20, 2005 12:20 AM
			To: Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
			Subject: RE: Iraqi and American democracy

			Marci writes:

			.   I suppose the U.S. is going to have to
decide what it means by a democratic Iraq.  Do we mean a democracy
patterned after our values, or one that they choose?    

			This, of course, raises the deepest question of
what we mean by democracy.  I.e., is it enough that a newly empowered
majority of Shiite Moslems will use their voting power to "put women in
their place," or does "democracy" require some (but how much?) linkage
to "liberal" values such as genderk, religious, or ethnic equality?  Do
we expect our own political leaders (including our undemocratrically
selected president (in 2000), at least if majority rule is a sine qua
non of democracy) to have a coherent theory of "democracy," or is it
sufficient for them to babble about "democracy" or "freedom" without
recognizing that these are, to put it mildly, "essentially contested
concepts"?  

			sandy

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