We have seen a brief identification of the main characters and a synopsis of the plot of the movie Anatomy of a Murder. Now let us examine the issues of legal ethics raised by the film.
The defense attorney, Paul Biegler (played by Jimmy Stewart) comes across as an earnest, straightforward, honest attorney who zealously defends the accused.
Paul Biegler (Jimmy Stewart) & Frederick Manion (Ben Gazzara)
Yet Biegler comes close to crossing the lawyer’s ethical line of not suborning perjury when in the initial consultations with his client, Lt. Frederick Manion (played by Ben Gazzara), Biegler tells the client the only potential defense is insanity before the lawyer knows all the facts and then implicitly invites the client to develop a story of insanity.
Paul Biegler (Jimmy Stewart)
During the trial, Biegler frequently appears to be an unskilled trial lawyer. He makes improper objections, such as “Now, he [Dancer, one of the prosecutors] cannot do that.” Biegler also frequently and knowingly asks improper questions, and the prosecution’s objections are sustained. His client, Manion, asks Biegler in an aside how the jury can forget something that the judge has stricken. Biegler says the jury cannot forget, which is precisely the reason why Biegler asked the improper question.
Another example of Biegler’s apparent inept performance as a defense lawyer is his failure to object to the examination of one witness by both prosecutors–District Attorney Mitch Lodwick (played by Brooks West) and Assistant Attorney General Claude Dancer (played by George C. Scott). Such “dual teaming” is clearly improper as a matter of trial practice. Soon thereafter, however, Biegler reveals his calculating courtroom manner when he raises that very objection while slyly arguing to the jury that it is unfair for a simple country lawyer like himself to face two legal giants with the same witness, and the court sustains Biegler’s objection. Who really is the courtroom giant?
Judge Weaver (Joseph Welch), Paul Biegler, Mitch Lodwik & Claude DancerClaude Dancer (George C. Scott)
Biegler also reveals his skills as a trial lawyer when in a conference in chambers with Judge Weaver (played by Joseph Welch), Biegler initially plays dumb when Dancer asks if Biegler is familiar with a Michigan statute that allows the prosecution to have its psychiatrist examine an accused who is asserting the insanity defense. Dancer then comes across as a reasonable attorney when he suggests that Biegler just agree to the adverse examination. But Biegler is well aware of the statute when he tells the judge that a formal application is required for such an adverse examination, but that the time for such has passed. Dancer then is forced to abandon his request. Later during Biegler’s cross examination of the prosecution’s expert witness, Biegler forces the adverse expert to admit that he did not examine Manion whereas Manion’s expert had and that Manion’s expert, therefore, had a better basis for his opinion.
At the heart of the legal issues in the movie was the definition of insanity as a defense to criminal liability. At the time of the movie and today, the definition in most states in the U.S. is the M’Naghten rule: a person is insane if at the time of the act, he did not know what he was doing or did not know that what he was doing was wrong.
In a few states, on the other hand, insanity was defined as someone who could not control what he was doing because of a mental impairment even though he knew what he was doing was wrong. This was the so-called “irresistible impulse” test.
In the movie, Biegler assumes that Michigan follows the M’Naghten rule, but on the Saturday before the start of trail, he and his co-counsel, McCarthy, spend time in the county law library in the courthouse and find an old Michigan case that approves of the irresistible impulse rule. [1] This makes for a dramatic scene in the movie. But to conduct legal research on the key issue in a murder case only a few days before the start of trial really is skirting the edges of legal malpractice.
This legal issue becomes important in a conference in chambers with Judge Weaver (Welch) when the prosecution suggests that Manion change his plea to guilty after his expert psychiatrist testifies that Manion could have known right from wrong when he killed Quill. Biegler refuses this proposal while handing the judge the law book containing the Michigan case. Dancer then backs away from his idea, saying he remembers the case.
Dancer’s conduct raises another legal ethics problem. As an assistant state attorney general, he is brought into the case because of his expertise on the insanity issue. As such an expert and as a member of the Michigan attorney general’s office, he has to know that the Michigan Supreme Court had approved of the “irresistible impulse” test, as he indicates when he says he remembers the case. (How could he forget?) Yet Dancer makes the suggestion in chambers that Manion change his plea because his psychiatrist did not support the application of the M’Naghten test. Perhaps he thought he could trick his supposedly less-sophisticated adversary, Biegler, with this suggestion. But an attorney has an obligation not to knowingly misstate the law to the court, and by making the suggestion in chambers that is exactly what Dancer did. In Dancer’s defense, he could argue that he was not making a formal motion for a directed verdict that required a decision by the judge, but this distinction, in the author’s opinion, is insufficient to exempt a prosecutor, who also has obligations to justice.
The movie ends with an interesting twist that I will not reveal so as not to spoil the fun.
Buy or rent the DVD of the movie. Watch it. Enjoy the performances of great actors and the music of a great musician (Duke Ellington). And learn about some issues of legal ethics.
[1] The case they find in the law books in the movie is an actual case, People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886).
A prior post discussed stare decisis in the context of recent suggestions that the U.S. Supreme Court should establish a new and different interpretation of the constitutional limits on federal and state regulation of economic activities. Another post summarized arguments why there should be no such changes and why the Affordable Care Act was constitutional.
Here we examine in greater detail the U.S. doctrine of stare decisisas it relates to the forthcoming Supreme Court decision on the Affordable Care Act.
The Doctrine of Stare Decisis
As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is . . . the bedrock principle of the rule of law, to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
I would add that the doctrine also assists in providing equal treatment for those similarly situated. If, for example, John Doe is held liable to Susan Smith for doing something to her, then Richard Roe should be held liable for doing the same thing to Janet Jones. This is a very important part of the rule of law.
Indeed, Chief Justice Roberts in a concurring opinion in the infamous Citizens United v. Federal Election Commission case from 2010, said, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Part of what law students learn in law school and what practicing lawyers do in their lawyerly work is how to identify and articulate the holdings of cases and how to make legitimate distinctions between cases. That is all part of the doctrine of stare decisis.
Exceptions to the Doctrine of Stare Decisis
As Chief Justice John Roberts, however, said in his concurring opinion in Citizens United, stare decisis is not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Yet the Supreme Court has “long recognized that departures from precedent are inappropriate in the absence of a ‘special justification.'”
The Court in considering a potential departure from stare decisis must first conclude that a prior decision or decisions were erroneous. Roberts added, “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”
Quoting former Supreme court Associate Justice Robert H. Jackson (1941-1954), Roberts said that such a balancing requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Roberts went on, “in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.”
One example of a justified overruling of a prior decision is when “the precedent under consideration itself departed from the Court’s [prior] jurisprudence.” Another example, said Roberts, is when ” adherence to a precedent actually impedes the stable and orderly adjudication of future cases. . . such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”
In the Citizens United concurring opinion, Roberts specifically cited three instances of the Supreme Court’s properly departing from stare decisis and overruling prior cases: (1) Brown v. Board of Education‘s overruling of Plessy v. Ferguson and holding school racial segregation unconstitutional; (2) Katz v. United States’ overruling of Olmstead v. United States and holding wiretapping of criminal suspects without a search warrant unconstitutional; and (3) the previously mentioned West Coast Hotel Co. v. Parrish‘s overruling of Adkins v. Children’s Hospital of D.C. and holding minimum wage laws to be constitutional.
Conclusion
Given the valid and important reasons behind the doctrine of stare decisis and the weighty burden that should be met by any court’s overruling prior precedents, even as expressed by Chief Justice Roberts, the Supreme Court, in my opinion, should adhere to the 75-year deep body of law interpreting the Constitutional limits on economic regulation and uphold the constitutionality of the Affordable Care Act.
This apparently was the view of the Obama Administration at the time of the adoption of the Act and at the start of the various lawsuits challenging that statute. As a New York Timesarticle today states, “Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.”
If a divided Supreme Court this week does change the interpretation of the constitutional limits on congressional power to regulate interstate commerce, it will indeed be radical.
In reaction to such a possibility, Jonathan Turley, Professor at George Washington University Law School, has suggested that the number of Supreme Court justices be increased from its current nine to 19. In his opinion, “Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.”
Turley points out that the number of justices is not set in our Constitution and that nine was happenstance. He also says many developed countries have larger top courts: Germany (16), Japan (15), United Kingdom (12) and Israel (15). France (124) and Spain (74) have significantly more judges on their top courts, but those courts have structural differences from ours. All of these courts, however, “eliminate the [U.S.] concentration-of-power problem.” Turley suggests 19 for the U.S. as the average size of our federal appellate courts.
Turley’s suggestion echoes my prior criticism of our Constitution as antiquated and “imbecilic” in other respects, including life tenure for federal judges.
A prior post examined the large body of existing U.S. Supreme Court cases interpreting the Constitution regarding economic regulation and sustaining the constitutionality of the Affordable Care Act. That post also examined the strong views of U.S. Supreme Court Associate Justice Antonin Scalia on interpreting the U.S. Constitution (and other legal texts) and the vituperative pleadings of George Will and two appellate court judges for changing the interpretation of the Constitution regarding economic regulation.
Those views, however, are not universally accepted. Now we look at the equally strong views regarding such interpretation from Supreme Court Associate Justice Stephen Breyer and a group of legal scholars known as “the New Textualists.” Those scholars also confirm the constitutionality of the Affordable Care Act now pending in the Supreme Court.
Justice Stephen Breyer
Associate Justice Stephen Breyer
In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. He argues that the constitutional authors sought to establish a democratic government involving the maximum liberty for its citizens. “Modern liberty” for Breyer is freedom from government coercion. In addition, Breyer asserts, there is “active liberty” or the freedom to participate in government.
Both kinds of liberty should be protected by the courts, according to Breyer, who believes the guiding theme in constitutional interpretation, whether in upholding statutes or enforcing rights, should be enabling democracy — “a form of government in which all citizens share the government’s authority, participating in the creation of public policy.”
Therefore, in his opinion, courts should behave modestly—if not deferentially—when striking down legislation. Courts should acknowledge that the greater number of people involved in legislatures makes them more likely to be circumspect than the considerably fewer people sitting as judges on any court. Unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out. Finally, he believes, promoting active liberty simply produces better law.
Moreover, Breyer believes courts should use legislative history to determine the intent of constitution-makers and legislatures when the texts are ambiguous. In a book on that very subject and in other writings he has identified five primary situations in which judges should use legislative history: (1) to avoid an absurd result; (2) to correct drafting errors; (3) to identify specialized meanings; (4) to identify the purposes of the statute; and (5) to choose among reasonable interpretations of a politically controversial provision.
Justice Breyer also claims that using legislative history is preferable to relying more heavily on canons of interpretation or construction as advocated by Justice Scalia. First, for every canon there exists an equal and opposite canon of construction. The sources of many interpretive canons are old and obscure. Breyer questions what validity a canon created in the nineteenth century has on statutes in the twenty-first century. Breyer also questions the legitimacy of the Supreme Court’s adopting new canons of interpretation or construction. Finally, Justice Breyer doubts that using canons actually helps those who either write or are affected by legislation.
The “New Textualists”
A different perspective on interpreting the U.S. Constitution is provided by Jeffrey Rosen, Professor of Law at the George Washington University Law School and Legal Director of The New Republic magazine.In an article in that magazine entitled “Constitution Avenue–Liberals discover a theory to crush conservative jurisprudence,” Rosen summarizes some of the work of three of the so-called New Textualists: Professor Akhil Reed Amar of the Yale Law School; Professor Einer Elhauge of the Harvard Law School; and Professor Jack Belkin of the Yale Law School.
Akhil Amar
Amar in his book, America’s Constitution: A Biography, emphasizes the original public meaning of the constitutional text. But the text is more than the original Constitution; it includes all of the amendments too. He points out that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans.
According to Amar, the Affordable Care Act is constitutional under the Constitution’s Interstate Commerce clause as that has been interpreted by the Supreme Court. He said:
“What Congress does has to be in the enumerated powers [granted by the Constitution].. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.”
“At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.”
Einer Elhauge
Einer Elhauge has addressed the constitutionality issue of the Affordable Care Act by pointing out that in the early years of our Republic, Congress passed several laws mandating that individuals and companies buy certain things and that most of the constitutional framers supported these measures and none objected on constitutional grounds. These measures were the following:
“In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington.”
“In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. . . . Four framers voted against this bill, but the others did not, and it was also signed by [President] Washington.”
In “1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. . . . [T]his Congress, with five framers serving in it, . . . enacted a federal law requiring the seamen to buy hospital insurance for themselves.”
Moreover, Elhauge has responded to a criticism of the relevance of these statutes to the constitutional argument.
Jack Balkin
Professor Belkin in his book, Living Originalism, concludes that the best versions of originalism and living constitutionalism are not in conflict, but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.
Belkin concludes that the Affordable Health Care Act is constitutional under Article I, Section 8 of the Constitution permitting Congress to “lay and collect taxes.” The Act, he says, does not actually require all (or certain classes of) individuals to purchase health insurance. Instead, it is a tax that people would not have to pay if they purchased health insurance.
Conclusion
The Supreme Court now has only five days next week in which to announce its momentous decisions in the cases involving the Affordable Care Act and the Arizona immigration law.
I again invite comments supplementing, correcting or challenging the assertions in this post.
Tonight, June 21st, a Somali immigrant, Ifrah Jimale, met Mike Farrell, the actor who played Captain B.J. Hunnicutt on the long-running, popular U.S. TV series “M*A*S*H.” The occasion was the annual fund-raising dinner and celebration for the Minneapolis-based Advocates for Human Rights.
Ifrah Jimale
Ms. Jimale told her amazing and moving personal story to the audience of 1,000 people.
In the Somali nomadic tradition, she was sent by her family to the U.S. to see if it was a place where the family could live in peace and security.
Her initial impressions of the U.S. were not positive. At the Cincinnati airport, when she told a U.S. immigration agent that she was a “refugee,” Ifrah was immediately detained and jailed and forced to wear a red jump suit. After a considerable period in a Cincinnati jail, she was told that she was being transferred to another immigration detention facility in Atlanta. She had no idea where that was; she thought it might be in Mexico. In Atlanta she was kept in that detention facility for another period of time. Finally she was released into the care of a relative.
She then came to Minnesota, where she was put in touch with Advocates. The organization provided her a pro bono (no fee) attorney, who helped her obtain asylum in the U.S.
Ifrah was illiterate when she came to the U.S., but she found a Minnesota teacher who taught her how to read and write. Eventually Ifrah obtained a college degree at the University of St. Thomas in St. Paul, Minnesota. She now is a journalist with a blog for the Twin Cities Daily Planet called “Ask a Somali.” Earlier this month the Minnesota Society of Professional Journalists awarded her blog second place in the independent news blog category.
Her June 12th blog posting is a good example of her writing. The question was, “I keep seeing Somali women with cellphones tucked into their headscarves. Is this a common thing?” She answered that it is now common in the Twin Cities, but she advised her Somali sisters “to take a lesson in looking ridiculous from Somali men, and walk around with a bluetooth headset everywhere you go.” In an aside that was educational for we non-Somalis, Ifrah said, “If you don’t think that women wearing hijabs care about fashion, take another look at all of the beautiful colors and ways of wearing them.”
Ifrah with a big smile thanked Advocates for helping her to find her life in the U.S.
Mike Farrell
Mike Farrell, a native of St. Paul, Minnesota, was this year’s recipient of the Don and Arvonne Fraser Human Rights Award. I discovered that he is a long-time activist for human rights and social justice, especially against the death penalty. He is the President of Death Penalty Focus. It “is one of the largest nonprofit advocacy organizations in the nation dedicated to the abolition of capital punishment through public education; grassroots and political organizing; original research; media outreach; local, state and nationwide coalition building; and the education of religious, legislative and civic leaders about the death penalty and its alternatives.”
Farrell concluded the program with an eloquent, passionate call for everyone to stand up and take action to protect human rights. (I hope that the speech will be published and that I can add it in a Comment to this post.)
My May 20, 2011, post, “Two Women “Shakers” Rock Minneapolis Dinner,” reported on last year’s annual dinner for Advocates for Human Rights.
By the end of June the U.S. Supreme Court should issue its decisions on the constitutionality of the federal Affordable Health Care Act and the Arizona immigration law. These cases involve important issues requiring the interpretation of the U.S. Constitution.
These cases and recent commentaries by Supreme Court Justice Antonin Scalia, columnist George Will, two judges on the U.S. Court of Appeals for the D.C. Circuit and a law professor reveal another important issue of legitimate federal power that is bubbling below the surface: what should be the constitutional standard for review of federal and state regulation of economic activities under the Fifth and Fourteenth Amendments to the U.S. Constitution.
U.S. Supreme Court Justice Antonin Scalia
Justice Scalia
A new book— Reading Law: The Interpretation of Legal Texts –by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discusses the general approach to such interpretation used by the Justice. It comes with this disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the [U.S.] Supreme Court.”
The book is a series of short essays on principles or canons of statutory and constitutional construction that supposedly guide judges and lawyers. The book, however, does make telling comments on issues in the pending health care and immigration cases.
One of the central precedents advanced by the Obama Administration for the constitutional validity of the Affordable Care Act is a 1942 Supreme Court case, Wickard v. Filburn, 317 U.S. 111 (1942), which held that a farmer’s cultivation of wheat for his own consumption affected interstate commerce and, therefore, could be regulated by the federal government under the Commerce Clause of the U.S. Constitution that grants (in Article 1, Section 8) Congress the power “To regulate Commerce . . . among the several States. . . .” The new Scalia-Garner book, however, says the Court in the Wickard case “expanded the Commerce Clause beyond all reason.”
Another canon says that “a federal statute is presumed to supplement rather than displace state law.” In other words, Congress must make express any intent to displace or preempt state law. This relates to the pending case about the Arizona immigration law. The main argument for its unconstitutionality is preemption of state law regarding immigration by federal law.
The book also says, “A statute presumptively has no extraterritorial application.” Again this is a presumption and thus requires Congress to make explicit any intention for a statute to have extraterritorial application. This relates to a case to be reargued next term on whether the federal Alien Tort Statute of 1789 applies to alleged foreign human rights violations. A related issue is whether corporations may be held liable under that statute.
Another canon is “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.
Columnist George Will
George Will
George Will in his recent column, “Unleash the high court” lambasts a recurrent theme in many Supreme Court cases that express deference to the choices of the democratically-elected legislative and executive branches. Similarly Mr. Will criticizes George Romney’s presidential campaign website for saying that federal judges should “leave the governance of the nation to elected representatives.” Will argues that “judicial deference to elected representatives can be dereliction of judicial duty.”
Will specifically targets the Supreme Court’s decision in the Slaughterhouse Cases, 16 Wallace 36 (1873), regarding the “privileges or immunities” clause of Section 1 of the 14th amendment to the U.S. Constitution that was ratified in 1868. That provision is as follows:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
At issue in the Slaughterhouse Cases was whether a Louisiana statute that granted one firm a monopoly of the slaughterhouse business in New Orleans and banned already established competitors was valid under the “privileges or immunities” clause, and the Court held, 5 to 4, that it was constitutional.
The Court in the Slaughterhouse Cases reached this conclusion after it had determined that there was a distinction between U.S. citizenship and state citizenship and that this clause of the 14th Amendment only protected the former. Such U.S. citizenship privileges or immunities, according to the Court in this case, included the right of a citizen “to come to the seat of the government to assert any claim he may have upon that government;” the “right of free access to its seaports;” and the right “to demand the care and protection of the Federal government over his life, liberty, and property on the high seas, or within the jurisdiction of a foreign government.” But they did not include the right to engage in a business.
The Slaughterhouse Cases also rejected the claims that the Louisiana statute violated the “due process” clause and the “equal protection” clauses of the 14th amendment.
According to George Will, the decision in the Slaughterhouse Cases was a “still-reverberating mistake . . . [by taking] a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise.” This led, he says, in the 1930s to the Court’s formally declaring economic rights to be inferior to ‘fundamental’ rights. As a result, according to Will, the Slaughterhouse Cases “begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.”
Circuit Judges Brown and Santelle
Chief Judge Sentelle & Judge Brown
George Will’s call for “unleashing” the Supreme Court was made more explicit in an astonishing concurring opinion in April of this year by two judges on the U.S. Court of Appeals for the D.C. Circuit–Judge Janice Rogers Brown and Chief Judge David Bryan Sentelle— in Hettinga v. United States.
In that case the appellate court, 3-0, affirmed the dismissal of a complaint alleging that a federal statute subjecting large milk producers-handlers to financial contributions to a fund for payments to producers violated the Fifth Amendment to the Constitution’s due process and implied equal protection provisions. Following Supreme Court precedents, as the circuit court was required to do, the latter’s per curiam opinion stated the governing legal principle as follows:
“We grant statutes involving economic policy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). A statutory classification that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id. at 313–14. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).”
The appellate court then found that the challenged federal statute did have the requisite rational basis and, therefore, was constitutional.
The concurring opinion that was authored by Judge Brown and joined by Chief Judge Sentelle said that no other result was possible in light of the Supreme Court precedents. They then went on to suggest that the Supreme Court should overturn its large body of cases holding that economic regulations were subject to a rational basis test and return to the Lochner-era when there was strict judicial scrutiny of such regulations. The concurring opinion said:
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
“First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
“As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .”
“The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
“The hope of correction at the ballot box is purely illusory. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”
The third circuit judge on the panel in Hettinga, Judge Thomas B. Griffith, filed his own concurring opinion to announce that he did not join the concurring opinion of Judge Brown and Chief Judge Sentelle “with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” (Emphasis added.)
As of the close of business on June 19th, the Supreme Court website did not report the filing of a petition for certiorari in the Hettinga case. But keep watching for such a petition and for the Court’s ruling thereon. If it grants the petition, be on guard.
Supreme Court Interpretation of Constitutional Restraints of Federal and State Economic Regulations
Will’s article and, to a lesser extent, the Brown and Sentelle concurring opinion jump over an important period of our constitutional history.
Starting in 1905 in the U.S. Supreme Court used the “due process” clause of the 14th amendment to invalidate numerous state statutes regulating various aspects of economic activity. An early leading example of this jurisprudence was Lochner v. New York, 198 U.S. 45 (1905), that held a New York statute limiting the hours of labor in bakeshops to be unconstitutional. This approach continued into the early 1930s when the Court held various New Deal statutes unconstitutional until the conflict between the Court and President Roosevelt’s New Deal legislation reached a head in early 1937 with a presidential proposal for reorganizing the federal judiciary by appointing additional judges when an incumbent reached his 70th birthday (the so-called “Court-packing” proposal).
This proposal never went anywhere, but the Court suddenly changed course by upholding various federal and state economic regulations. This was the so-called “switch in time that saved nine.” Important cases in this reversal of course by the Supreme Court were West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) and United States v. Caroline Products Co., 304 U.S. 144 (1938). In West Coast Hotel, the Court, 5 to 4, upheld a state minimum wage law and overruled a contrary decision from 1923 (Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923)). In Caroline Products, it upheld the constitutionality of a federal statute prohibiting certain milk from being shipped in interstate commerce because it was supported by substantial public-health evidence and was not arbitrary or irrational. The latter case also explained that regulations of economic activity would be subject to a “rational basis” review while restrictions on more fundamental rights would be subject to a higher level of scrutiny. Presumably George Will was referring to Caroline Products as the 1930s decision that, in his opinion, dastardly relegated economic rights to an inferior position to fundamental rights.
Another case in this new Supreme Court direction was Palko v. Connecticut, 302 U.S. 329 (1937), although it did not involve economic rights. Instead this case held that a state statute permitting the prosecution to take appeals from lower courts in criminal cases did not violate the 14th Amendment. This conclusion followed from the Court’s decision that this Amendment did not protect all of the rights set forth in the first eight amendments to the U.S. Constitution, but only to those “implicit in the concept of ordered liberty” and those principles of justice “so rooted in the traditions and conscience of our people to be ranked as fundamental.”
Also important in the Court’s new direction was the previously discussed Wickard v. Filburn, 317 U.S. 111 (1942), which upheld a federal statute establishing a wheat-marketing quota system that included wheat consumed on the same farm. It thereby repudiated an old distinction in the law between direct and indirect effects on interstate commerce. This case–the one criticized by Justice Scalia–made it clear that the Court would uphold the federal regulation of any economic activity, no matter how local, if it could have a demonstrable effect on interstate commerce.
This interpretation of the 14th Amendment as applied to economic regulations has now been followed for roughly 75 years in a huge body of cases in the Supreme Court and other U.S. courts.
As discussed in a prior post, in the mid-1970s I relied upon this well established body of law in a successful defense of an acquisition of an Iowa bank by an out-of-state bank holding company at about the same time that the Supreme Court upheld the constitutionality of a New Orleans ordinance that only allowed two push-cart vendors in the French Quarter of that city.
Given this long-established and firmly embedded interpretation of the Constitution, I was astounded to discover the George Will column and the concurring opinion in Hettinga calling for obliteration of this large body of law. I also was startled to read a commentary by David Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law:”There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions.”
Prof. Geoffrey Stone
Such a position seems to me to be contrary to the principle of starie decisis. As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
Chief Justice John RobertsJustice Samuel Alito
Indeed, in the infamous Citizens United v. Federal Election Commission case from 2010 that overruled a prior Supreme Court case regarding election financing, Chief Justice Roberts submitted a concurring opinion that was joined by Justice Samuel Alito solely “to address the important principles of judicial restraint and stare decisis implicated in this case.” After this concurring opinion reviewed the reasons for starie decisis, it quoted earlier Supreme Court decisions that said the principle was not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Otherwise, Chief Justice Roberts (and Justice Alito) said, “minimum wage laws would be unconstitutional.” Here, Chief Justice Roberts cited with approval West Coast Hotel Co. v. Parrish’s overruling of Adkins v. Children’s Hospital of D.C.
Presumably that would at least make it more difficult for Roberts and Alito now to overrule 75 years of Supreme Court case law on the constitutionality of economic regulations and to hold, explicitly or implicitly, that West Coast Hotel was an erroneous decision.
I, therefore, was somewhat relieved to read Professor Bernstein’s further observation that “there is less unanimity on what to do about it [the belief by some legal scholars that the rational basis standard for review of economic regulations was erroneous]. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, says it is too late to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society and to the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional. Richard Epstein argues that, at least on the margins, the Supreme Court can still restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”
Conclusion
In a subsequent post I will review other theories of interpreting the Constitution.In the meantime, I invite comments correcting, amplifying or contesting the assertions in this post.
On June 16, 2012, Aung San Suu Kyi gave her lecture in Oslo, Norway accepting the Nobel Peace Prize awarded her 21 years ago. She was unable to be present on that prior occasion because she was under house arrest in her native Myanmar (Burma) for protesting the abuses of its military regime.
The 1991 Peace Prize Presentation
Nobel Prize Medal
When the Prize was presentedin absentia in 1991 for her non-violent struggle for democracy and human rights in Burma, the Chairman of the Norwegian Nobel Committee said, “In the good fight for peace and reconciliation, we are dependent on persons who set examples, persons who can symbolise [sic]what we are seeking and mobilise [sic] the best in us. Aung San Suu Kyi is just such a person. She unites deep commitment and tenacity with a vision in which the end and the means form a single unit. Its most important elements are: democracy, respect for human rights, reconciliation between groups, non-violence, and personal and collective discipline.”
The presentation continued, “The central position given to human rights in her thinking appears to reflect a real sense of the need to protect human dignity. Man is not only entitled to live in a free society; he also has a right to respect. On this platform, she has built a policy marked by an extraordinary combination of sober realism and visionary idealism. And in her case this is more than just a theory: she has gone a long way towards showing how such a doctrine can be translated into practical politics.”
An “absolute condition [for such a translation] is fearlessness,” the Nobel Chairman stated. He added that Aung San Suu Kyi had said “it is not power that corrupts, but fear. The comment was aimed at the totalitarian regime in her own country. They have allowed themselves to be corrupted because they fear the people they are supposed to lead. This has led them into a vicious circle. In her thinking, however, the demand for fearlessness is first and foremost a general demand, a demand on all of us. She has herself shown fearlessness in practice.”
The Nobel Committee concluded its 1991 statement with the words: “In awarding the Nobel Peace Prize … to Aung San Suu Kyi, the Norwegian Nobel Committee wishes to honour [sic] this woman for her unflagging efforts and to show its support for the many people throughout the world who are striving to attain democracy, human rights and ethnic conciliation by peaceful means.”
Recognizing her inability to be present for the award in 1991, the Nobel Committee Chairman said, “The great work we are acknowledging has yet to be concluded. She is still fighting the good fight. Her courage and commitment find her a prisoner of conscience in her own country, Burma. Her absence fills us with fear and anxiety . . . .”
Aung San Suu Kyi’s Acceptance Speech
Aung San Suu Kyi @ Oslo City HallAung San Suu Kyi (Photo: Daniel S. Lauten/AFP/ Getty Images
Twenty-one years later, Aung San Suu Kyi formally accepted the 1991 Peace Prize in the City Hall of Oslo, Norway. The text and video of the speech are available online.
She talked about the impact in 1991 of learning of the award while she was under house arrest. “Often . . . it felt as though I were no longer a part of the real world. There was the house which was my world, there was the world of others who also were not free but who were together in prison as a community, and there was the world of the free; each was a different planet pursuing its own separate course in an in different universe. What the Nobel Peace Prize did [in 1991] was to draw me once again into the world of other human beings outside the isolated area in which I lived, to restore a sense of reality to me. . . . And what was more important, the Nobel Prize had drawn the attention of the world to the struggle for democracy and human rights in Burma. We were not going to be forgotten.”
She continued, “To be forgotten . . . is to die a little. It is to lose some of the links that anchor us to the rest of humanity. . . . When the Nobel Committee awarded the Peace Prize to me they were recognizing that the oppressed and the isolated in Burma were also a part of the world, they were recognizing the oneness of humanity. So for me receiving the Nobel Peace Prize means personally extending my concerns for democracy and human rights beyond national borders. The Nobel Peace Prize opened up a door in my heart.”
“The Burmese concept of peace,” she explained, is “the happiness arising from the cessation of factors that militate against the harmonious and the wholesome. . . . Everywhere there are negative forces eating away at the foundations of peace. Everywhere can be found thoughtless dissipation of material and human resources that are necessary for the conservation of harmony and happiness in our world.”
“Are we not still guilty, if to a less violent degree, of recklessness, of improvidence with regard to our future and our humanity? War is not the only arena where peace is done to death. Wherever suffering is ignored, there will be the seeds of conflict, for suffering degrades and embitters and enrages.”
While living in isolation she said she ruminated over the meaning of the Buddhist concept of the six great “dukha” or suffering: “to be conceived, to age, to sicken, to die, to be parted from those one loves, to be forced to live in propinquity with those one does not love. . . . I thought of prisoners and refugees, of migrant workers and victims of human trafficking, of that great mass of the uprooted of the earth who have been torn away from their homes, parted from families and friends, forced to live out their lives among strangers who are not always welcoming.”
“How often during my years under house arrest have I drawn strength from my favourite [sic] passages in the preamble to the Universal Declaration of Human Rights:
……. disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspirations of the common people,
…… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . .”
“The peace of our world is indivisible,” Aung San Suu Kyi continued.” As long as negative forces are getting the better of positive forces anywhere, we are all at risk. It may be questioned whether all negative forces could ever be removed. The simple answer is: ‘No!’ It is in human nature to contain both the positive and the negative. However, it is also within human capability to work to reinforce the positive and to minimize or neutralize the negative. Absolute peace in our world is an unattainable goal. But it is one towards which we must continue to journey, our eyes fixed on it as a traveller in a desert fixes his eyes on the one guiding star that will lead him to salvation. Even if we do not achieve perfect peace on earth, because perfect peace is not of this earth, common endeavours [sic] to gain peace will unite individuals and nations in trust and friendship and help to make our human community safer and kinder.”
She then emphasized kindness. [The] most precious . . . [lesson from her isolation] I learnt . . . [was] the value of kindness. Every kindness I received, small or big, convinced me that there could never be enough of it in our world. To be kind is to respond with sensitivity and human warmth to the hopes and needs of others. Even the briefest touch of kindness can lighten a heavy heart. Kindness can change the lives of people. ”
Aung san Suu Kyi concluded with these words. “Ultimately our aim should be to create a world free from the displaced, the homeless and the hopeless, a world of which each and every corner is a true sanctuary where the inhabitants will have the freedom and the capacity to live in peace. Every thought, every word, and every action that adds to the positive and the wholesome is a contribution to peace. Each and every one of us is capable of making such a contribution. Let us join hands to try to create a peaceful world where we can sleep in security and wake in happiness.”
Conclusion
I have never been to Myanmar (Burma), and I do not know the history of that country in any great detail. But in 2001 as a pro bonoattorney I helped a Burmese man obtain asylum in the U.S. because of his well-founded fear of persecution if he returned to his homeland due to his political opposition to its military regime. He had been arrested in his home country for distributing video tapes of the movie “Beyond Rangoon [now Yangon],” which was critical of the military regime.
Aung San Suu Kyi also suffered persecution because of her political opinions and thereby demonstrated the importance of human rights for her and for all of us. I share this belief in human rights although I never have had to pay the personal cost she did. I also share with her the experience of having “read” Philosophy, Politics and Economics at the University of Oxford.
Aung San Suu Kyi’s life and her acceptance speech are especially moving for me.
There have been significant recent developments at the International Criminal Court (ICC) with respect to Libya, the Democratic Republic of the Congo, Kenya, Sudan/Darfur, the Office of the Prosecutor, the campaign to add more States Parties to the Court’s Rome Statute and commentary on one of the Statute’s provisions.
Libya
ICC Report to Security Council. On May 16th the ICC Chief Prosecutor, Luis Moreno-Ocampo, made his semi-annual and last report on the situation in Libya to the U.N. Security Council. This was discussed in a prior post.
Postponement of Surrender of Saif Al-Islam Gaddafi. On June 1st the ICC’s Pre-Trial Chamber decided that Libya may postpones its execution of the Court’s request for the surrender of Saif Al-Islam Gaddafi , pending the Court’s final determination of Libya’s challenge to the admissibility of the case.
Libyan Detention of ICC Personnel. On June 6th four ICC staff members arrived in Libya to meet with Mr. Gaddafi to discuss his legal representation before the ICC. They were Melinda Taylor, an attorney who works in the ICC’s office of public defense and who was appointed to act as one of two interim lawyers for Mr. Qaddafi; an interpreter, Helene Assaf, from Lebanon; and Alexander Khodakov, a former Russian diplomat, and Esteban Losilla, a Spanish lawyer, who were sent to find out whether Mr. Qaddafi wanted counsel of his own choosing. Their visit had been agreed to by Libya.
The next day (June 7th), however, the four people were detained by Libyan authorities. The ICC protested their detention and demanded their immediate release.
However, as of June14th they were still being detained. They are accused of bringing a camera disguised as a pen and suspicious documents–letters for Gaddafi from allegedly dangerous people who are supporters of the old regime and a page with drawings that looked like codes. They also had three blank pages that were signed by Mr. Gaddafi. The Libyan authorities say they will not be released until Ms. Taylor answers questions about her dealings with Mr. Gaddafi.
In addition, as of June 14th the Libyan attorney general had said he had decided that Ms. Taylor and Ms. Assaf could be held for up to 45 days awaiting the results of his inquiry into possible “threats to national security.” The other two could leave Libya, but had chosen to stay to support their colleagues. The National Transitional Council has said that it was powerless to release the four individuals or influence the investigation
On June 15th the ICC issued a press release announcing that on the 12th (with the cooperation of Libyan officials) representatives of the ICC had met with the four individuals, who said they were in good health and had been well treated. The press release also made conciliatory comments that the ICC welcomed the Libyan assistance, that the ICC was “very keen to address any regrettable misunderstandings on either side about the delegation’s mandate and activities during its mission in Libya” and that the ICC hoped “the release of the four detained persons will take place with no delay, in the spirit of the cooperation that has existed between the Court and the Libyan authorities.”
Democratic Republic of the Congo
Thomas Lubanga. On June 13th the ICC’s Trial Chamber held its hearing on the sentencing of Mr. Lubanga, who had been found guilty of war crimes regarding child soldiers. The Prosecutor asked for a sentence of 30 years imprisonment because of the seriousness of the crimes and the presence of these aggravating factors: (1) Lubanga as the top leader bears the greatest responsibility for the actions of the UPC militia; (2) his recruitment of children included particularly cruel treatment; (3) girls were recruited as sex slaves and were daily victims of rape by commanders and soldiers; and (4) children needed to be protected against violence and injuries and for their right to education.
Germain Katanga and Mathieu Ngudjolo Chui. The trial of these two gentlemen recently concluded, and the Trial Chamber’s judgment will be issued in the next several months. An interesting analysis of one of the issues raised in this case has been provided by Jennifer Easterday, a Ph.D. Researcher for the Jus Post Bellum project at the Grotius Centre for International Legal Studies at the University of Leiden in the Netherlands. That issue is whether the Trial Chamber may re-classify a conflict from international to non-international armed conflict or visa versa.
CallixteMbarushimana. On May 30th, the ICC’s Appeals Chamber unanimously dismissedthe Prosecution’s appeal of the Pre-Trial Chamber’s refusal to confirm charges against Callixte Mbarushimana. The Appeals Chamber found that the Pre-Trial Chamber may evaluate ambiguities, inconsistencies, contradictions or credibility doubts in the evidence in determining whether to confirm charges under article 61 of the Rome Statute. The Appeals Chamber emphasized that “the confirmation of charges hearing exists to ensure that cases and charges go to trial only when justified by sufficient evidence” and that article 61(7) of the Rome Statute requires the Pre-Trial Chamber to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.
The Appeals Chamber also rejected the Prosecutor’s contention that under article 25(3)(d) of the Rome Statute, the contribution of an accused individual must be “significant”, because the alleged error did not materially affect the decision of the Pre-Trial Chamber. One of the three appellate judges, however, stated that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant under article 25(3)(d) of the Rome Statute.
An NGO has observed that the decisions in the Callixte case are indicative of a more significant problem regarding gender-based crimes. It asserts that “more than half of all charges for gender-based crimes which reach the confirmation stage are not being successfully confirmed[;] no other category of charges before the ICC faces this level of dismissal and contention.”
Sylvestre Mudacumura. On May 31st the ICC’s Pre-Trial Chamber unanimously dismissed, in limine (without examining the merits), the Prosecutor’s application for a warrant of arrest against Mr Sylvestre Mudacumura, considering that this application “fell short of the proper level of specificity” in describing the alleged crimes “for which the person’s arrest is sought”. The Chamber said the Prosecutor’s application did not provide “proper counts or any other kind of accompanying description of the specific facts underlying the crimes” and failed to “set out the specific references to the alleged crimes” as requested by the Rome Statute.
On June 13th the ICC Prosecutor submitted an amended application for an arrest warrant against Mr. Mucadumura, for five counts of crimes against humanity (murder, inhumane acts, rape, torture and persecution) and nine counts of war crimes (attack against a civilian population, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrage upon personal dignity). The Prosecution said it considers Mr. Mudacumura the Supreme Commander of the FDLR-FOCA, one of the most active militias in the Kivu Provinces of the DRC, and is allegedly responsible for a campaign of violence targeting civilians in these provinces.
Kenya
On May 24th, the ICC’s Appeals Chamber unanimously rejected challenges to the ICC’s jurisdiction in the two Kenyan cases. It said that the interpretation and existence of an ‘organizational policy’ for certain crimes against humanity under the Rome Statute relate to the substantive merits of these cases, not whether the Court has subject-matter jurisdiction. Therefore, the Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes.
Sudan/Darfur
On June the ICC Prosecutor reported on the situation in Sudan/Darfur to the U.N. Security Council. This was discussed in a prior post.
New Chief Prosecutor
ICC Prosecutor Basouda
On June 15th, Fatou Bousouda, the ICC’s new Chief Prosecutor, officially took office. In her acceptance of this position, she said she was “humbled” by her appointment, and promised to continue pursuing all cases that fall under the court’s jurisdiction. Other major points in her speech were the following:
“The one thing which every one of you can rest assured of is that I will be the Prosecutor of all the 121 States Parties, acting in full independence and impartiality. Justice, real justice, is not a pick‐and‐choose system. To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions will continue to be based solely on the law and the evidence.”
“Thanks to the tireless efforts and the commitment of Luis Moreno‐Ocampo, [her predecessor, there is now] . . . a well‐respected and sound functioning Office [of the Prosecutor], with almost 300 staff from 80 countries, 7 situations under investigation, 14 cases before the Chambers, 7 preliminary examinations and one verdict.”
“As I speak, massive crimes continue to be committed in Darfur (Sudan); Joseph Kony and the Lord’s Resistance Army’s acts of violence continue unabated in central Africa. . . . In total, 11 arrest warrants remain outstanding. Nothing short of arresting all those against whom warrants have been issued will ensure that justice is done for millions of victims of . . . [their] crimes. . . .”
The Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and a former ICC Deputy Prosecutor, Serge Brammertz, has emphasized the urgent need for the new ICC Chief Prosecutor to have the support of states in arresting the Court’s fugitives. He stressed the need for universal acceptance of the ICC as one way to combat the concern about its current exclusive concentration on African situations. Another of his suggestions for the new ICC Chief Prosecutor was doing more to strengthen national court systems that are capable of handling the crimes that are within the ICC’s jurisdiction under the principle of complementarity.
Because the ICC cannot respond to atrocities the world over, Brammertz says, the U.N. should use the work of international fact-finding and investigatory commissions as bases “for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC.” There also needs to be standard procedures for collecting and storing evidence or conducting interviews as well as a permanent operational infrastructure for such commissions.
A columnist for London’s Guardian newspaper suggested the following priorities for the new Prosecutor:
Rebuild ICC relations with Africa. All of the Court’s active investigations and prosecutions come from Africa, and many Africans believe the Court is anti-African. Bensouda, herself an African, should consult more frequently with the African Union and work to restore confidence in the Court.
Prosecute cases in other regions. She should continue pending preliminary _– into Columbia, Afghanistan, Georgia, Honduras and North Korea and seek permission to start an investigation of Syria. She also should work to increase the number of Arab nations that are States Parties.
Restore transparency to the internal and external practices of the ICC. She should create clear and public processes for launching investigations and issuing arrest warrants, particularly in cases where she acts proprio motu – exercising her discretion to launch investigations of her own initiative.
Improve witness protection and investigatory techniques.
Improve investigatory techniques. The ICC needs to avoid over-reliance on NGOs that are not trained in interrogation and evidence gathering.
ICC States Parties
The ICC is engaged in a campaign for universal adoption of its Rome Statute to persuade the remaining 72 U.N. Members that are not States Parties to join the 121 that already have done so. This campaign, it has been suggested, could be strengthened by using the U.N. Human Rights Council’s Universal Periodic Review process to press those 72 members on the subject.
As previously noted, the U.S. in the Obama Administration is now a member of the U.N. Human Rights Council, and its participation is credited with helping to increase international scrutiny of human rights abusers.
Other
Under Article 53 of the Rome Statute, the ICC’s Prosecutor may, in certain circumstances, decline to press charges “in the interests of justice,” and the Office of the Prosecutor (OTP) has issued a policy paper on this provision.
Linda M. Keller, Associate Professor at Thomas Jefferson School of Law in San Diego, recently has explored an ongoing debate over whether the OTP should adopt ex ante guidelines for prosecutorial discretion in order to increase transparency and legitimacy, especially with respect to the “interests of justice” provision. She compared this provision of the Rome Statute with a similar provision in New York and concluded that (1) “requiring a written rationale regarding exercise of discretion does not necessarily yield thorough or convincing explanations, undermining arguments that the legitimacy of the ICC will be enhanced by public explanations of prosecutorial discretion; ” (2) “such explanations may backfire when the balancing of nebulous factors leads to apparently inconsistent or arbitrary reasoning and results, which may undercut the credibility of the decision-maker;” and (3) “the lack of a guiding theory to drive the interpretation of ambiguous criteria can lead to more confusion than clarity when there is no agreement on the theoretical justifications for prosecution.”
Dr. Kamari Maxine Clarke, Associate Professor of Anthropology at Yale University and a Research Associate at its Law School, also has written about the “interests of justice” provision in May 18 and 19 posts.
Joseph Welch suddenly appeared on the national stage in 1954 at the age of 63. Where did he come from? Who was he?
Upbringing
Welch was born on October 22, 1890, on a farm near the tiny Iowa town of Primghar, the youngest of seven children. His parents were poor English immigrants who came to Iowa in a covered wagon from Illinois. As a boy, he often watched trials in the county courthouse and was impressed with a lawyer’s ability to say “Strike that out” and eliminate what had been said. He worked in a real estate office for two years after completing high school to save money for college.
Education
Welch was the straight-A valedictorian of the Primghar High School class of 1908.
Primghar High SchoolGrinnell College
Welch attended Iowa’s Grinnell College, my alma mater, from 1910 through 1914, obtaining a Bachelor of Arts degree, Phi Beta Kappa (1914). [1] He majored in economics and political science. He was active in debate and tennis and served as Editor-in-Chief of the College’s annual yearbook. Welch later observed that Grinnell gave him four important things—an appreciation of literature and the beauty of words, development of speaking abilities, appreciation of music and a chance to dream and explore spiritual issues.
Austin Hall, Harvard Law School
Welch then went on to Harvard Law School, 1914 to 1917, receiving a LL.B. degree in 1917. Welch was second in his class and a member of the staff of the Harvard Law Review and its Book Review Editor. Also on the Review with him were Dean Acheson, later a partner of Edward B. Burling (Grinnell, 1890) and U.S. Secretary of State, and Archibald MacLeish, later known for his poetry.
Legal Career
After a brief period as a private in the Army near the end of World War I and as a lawyer for the U.S. Shipping Board in Washington, D.C., where Mr. Burling was his supervisor, Welch started practicing law with the Boston firm of Hale and Dorr in 1919. He became a junior partner almost immediately and soon was the firm’s primary trial attorney. He handled all kinds of civil cases in state and federal courts in New England. He particularly liked antitrust cases (for the defense), libel cases (for the plaintiff), will and estate cases and tax cases. He came to be known as a “lawyer’s lawyer” and for his skill in cross-examination.
The Sacco-Venzetti Case
Vanzetti & Sacco
The public emotions over Senator McCarthy were presaged for Welch by the Sacco-Vanzetti case in Boston just as Welch was starting the practice of law in that city. In 1920-21, two Italian anarchists living in Boston, Nicola Sacco and Bartolomeo Vanzetti, were indicted, tried, convicted and sentenced to death by a Massachusetts trial court for murdering a factory paymaster and his guard. There was a widespread belief that they were convicted because of their political opinions, rather than committing the murders. As a result, there were protests in the U.S. and throughout the world. Such protests continued until and after their executions in 1927. It was the cause célèbre of the time.
Prof. Felix Frankfurter
Felix Frankfurter, then Professor at the Harvard Law School, chaired the Sacco-Vanzetti Defense Fund, and Welch as a young lawyer in Boston apparently helped to raise money for the fund. In the year before the executions, Welch’s friend and law firm colleague, Herbert Ehrmann, became one of the lawyers representing Sacco and Vanzetti, and Welch also knew another of their attorneys as well as the trial judge. As a result, Welch was very close to the case although he did not participate himself.
This case, Welch later said, “tortured” him. The trial judge was “an awful damned fool.” Sacco and Vanzetti, in Welch’s opinion, had not received a fair trial, and Welch had grave doubts about their guilt. The night the two men were executed shattered him, and the case tormented him for the rest of his life. As a result, Welch became an opponent of capital punishment.
Family Life
In September 1917 Welch married Judith Lyndon. They had two sons, Joseph Nye, Jr. and Lyndon, both of whom became engineers.
[1] I heard Welch speak at Grinnell College in the Fall of 1957, but I was too shy to introduce myself to him and engage him in conversation. Later I conducted research about Welch. Two of Grinnell’s other notables—Hallie Flanagan, the Director of the Federal Theatre Project in the New Deal, and Harry Hopkins, the head of the Works Progress Administration in the New Deal and an aide to President Franklin D. Roosevelt—were also Grinnell students at the same time as Welch. It would be interesting to find out whether Welch had any contacts with Hopkins or Flanagan during their college years or afterwards.
Michael Lewis, a member of Princeton University’s Class of 1982 and author of such successful books as Moneyball and Boomerang, gave the 2012 Baccalaureate speech at his alma mater.
He said, “Life’s outcomes, while not entirely random, have a huge amount of luck baked into them. Above all, recognize that if you have had success, you have also had luck — and with luck comes obligation. You owe a debt, and not just to your Gods. You owe a debt to the unlucky.” The text of the speech is available, as is a YouTube video.
I made a similar point in my post, Gratitude III, where I said,“Malcolm Gladwell’s Outliers emphasizes the importance of an individual’s family and place and date of birth as determinants of success. Warren Buffett, the great investor from Omaha, frequently says how fortunate he is to have won the ovarian lottery by having been born in the U.S. in the 1920′s. They remind me to be grateful for having been born in the U.S.A. It is indeed a great country and provided me with opportunity after opportunity.”
Every one of us owes so much to so many people who helped us along the way. Our successes are not ours alone. Be grateful. Help others as you have been helped.
Joseph Welch’s participation in the televised Army-McCarthy hearings in 1954 brought him national prominence. We have seen a summary of those hearings and his performance as the U.S. Army’s lawyer.
As a result, Welch became a celebrity. His career expanded to do new things.
Television Commentator
Welch appeared on various national television programs, most notably talking about the U.S. Constitution on the Omnibus program. A book of those commentaries was published.
Welch,The ConstitutionLeonard BernsteinMarian Anderson
In 1959 Welch provided commentary during intermissions of several televised concerts by the New York Philharmonic Orchestra, then under the baton of Leonard Bernstein. After Bernstein apparently had called Welch a “great American,” Welch responded, “I suspect you are a better judge of good music than you are of what could truly be called great Americans. Do not think for a moment, however, that it is not music to me to have you say of me what you do.” Welch added that for him to accept money for being on a Christmas concert with Bernstein and soprano Marian Anderson was “just barely distinguishable from cheating.”
Correspondent with Groucho Marx
Groucho Marx
Welch’s television appearances had an impact on comedian Groucho Marx. In a serious article in TV Digest about the status of television programming, he said, “[I]t speaks very well of television and its audience that the man so constantly in demand for more TV appearances after the Army-McCarthy Hearings was not Senator McCarthy, but Joseph Welch.”
This article came to Welch’s attention, and he wrote to Groucho on his law firm’s letterhead that listed the names of all the 40 or so lawyers in the firm. Welch said that it had not been necessary to hire extra help “to hold at bay swarms of people anxious to get me to appear on television or in the movies.” He then expressed admiration for Groucho’s work and said it “must be wonderful to be (a) Rich, (b) Intelligent, and (c) Funny. I trust I list them in their correct order.”
Groucho responded that he was not rich, but “rich enough . . . to know that inflation is knocking hell out of what I have.” He also said he was a “little frightened” by the imposing list of 40 lawyers on Welch’s law firm’s letterhead. Groucho said he had been sued over the years on most of the “minor charges—rape, larceny, embezzlement and parking in front of a fire plug,” but those law firms never had more than four lawyers. Groucho then asked a series of questions about life in such a large law firm.
Welch could not let this Marx missive go unnoticed. Welch told Groucho that he had misunderstood the letterhead: “All the names below the first line are the name of our professional witnesses. They hang around street corners and turn up unexpectedly as witnesses in all the automobile cases we try.” Welch then answered Groucho’s questions about the firm:
“Q: How do you get along in the office?
A: By leaning on each other heavily and on our secretaries.
Q: Do you trust each other?
A: In every area except money, property and women.
Q: Does each one have a separate safe for his money?
A: Yes, except I have so much money I have two safes.
Q: Isn’t there some danger that you and one of your partners could both be in a courtroom, representing opposing clients?
A: Damned if there isn’t and every now and then somebody takes in a case where the client is against the client of another guy in this office and there is hell to pay and no foolin’.
Q: Do you have one community storage room for your briefcases? Or does each one sit on his own case?
A: I do not understand this question. I sit on what you sit on only I do more of it than you do.”
While Welch said he hoped that Groucho would visit him in Boston, Welch advised him to keep it quiet because “a highly numerous and vocal collection of people in Boston thought and still think that hanging is too good for me.”
Welch indeed matched wits with Groucho.
Movie Actor
In 1959 Welch became a movie actor when Director Otto Preminger picked him to play Judge Weaver, a Michigan trial-court judge, in the film, Anatomy of a Murder, which is still an entertaining movie.
The basic plot concerns an Army Lieutenant, Frederick Manion (played by Ben Gazarra), who is accused of murdering a man, Barney Quill, for allegedly raping his beautiful wife, Laura Manion (played by Lee Remick). Manion’s lawyer, Paul Biegler (played by Jimmy Stewart), is assisted by his friend, Parnell McCarthy (played by Paul O’Connell), an alcoholic lawyer. They oppose the district attorney, Mitch Lodwick, and a state assistant attorney general, Claude Dancer (played by George C. Scott). Judge Weaver (Joseph Welch) presides over the trial. Several interesting issues of legal ethics are posed by the trial, which is a subject for another day.
Joseph Welch as Judge WeaverJimmy Stewart as BieglerLee Remick as Laura ManionDuke Ellington & Jimmy Stewart
Filmed in a small, apparently all white, county seat in the Upper Peninsula of Michigan, the movie has an enjoyable digression. Duke Ellington, the great jazz musician, appears in one scene as Pie-Eye, a musician playing the piano with a black jazz band, at a roadhouse. Joining him on the piano is the defense attorney (Jimmy Stewart), who is a jazz aficionado.
The movie received many Oscar nominations, but lost “Best Picture” to Ben-Hur while Stewart lost “Best Actor” to Charlton Heston in the latter movie.
During the filming, Welch became a good friend of John Voelker, the author of the film script and of the novel of the same title and a fellow attorney and a former member of the Michigan Supreme Court. They discussed the possibility of Voelker’s assisting Welch in writing an autobiography, but that never happened. In their extensive correspondence over the last 18 months of Welch’s life, Welch compared his wordsmithing as “counterfeit” coins to Voelker’s “complete access to, if not ownership of, the First National Bank of Words.”
Law Firm Partner
Welch’s graciousness, so evident in the Army-McCarthy hearings, also was present in Welch as a law firm partner.
In 1952 the Hale and Dorr law firm was faced with an issue of whether it should make a claim on the estate of a deceased partner who had paid himself more than he was entitled to, i.e., who had embezzled law firm funds. The firm adopted Welch’s proposal to make a claim for one-half the amount. Said Welch, “Let him pay for his choice of life style. But because of the nature of the partnership and because we truly liked him at his best, let us forgive a half.”
In addition, presumably in the late1950’s Welch wrote a letter to his partners at Hale and Dorr, “This is like my will to you. I have lived a successful, rewarding and happy life. I believe that I owe the firm money rather than visa-versa. In any event, since my second wife does not need any money, any moneys owing to me by the firm upon my death should be paid to you [the partners], not to my family.”
Welch also prepared what he called an “office will:” It stated, “All the rest and residue and remainder of me as a lawyer I leave to all those in Hale and Dorr that I have loved. To a very large degree they . . . have made me what I am. Such success as I have attained I owe largely to them. I have lived my whole professional life in an office free from grief, envy, and jealousy. Few lawyers have been so blessed in their associations continually all through life. For the serenely happy life I have had with all of you, I say a simple and inadequate thank you.” Welch concluded: “this is my office will and is undated. The identity of the typist is to remain a secret. It is not witnessed. But even so—no fooling. Joseph N. Welch.”
The author in his years as a practicing lawyer in large law firms has never heard of anything like these gracious comments from a partner to his or her fellow partners.
Conclusion
Welch’s first wife, Judith Lyndon Welch, died in 1956, and he was remarried to Agnes Rodgers Brown Welch.
Welch died on October 6, 1960, just weeks before his 70th birthday.
We have seen a brief identification of the main characters and a synopsis of the plot of the movie Anatomy of a Murder. Now let us examine the issues of legal ethics raised by the film.
