On April 19

On this day in ...
... 1920, the U.S. Supreme Court issued its judgment in Missouri v. Holland. The case involved a 1918 federal statute enacted to implement a 1916 U.S.-Britain treaty that aimed to protect birds that traveled between the United States and Canada (at the time, a British holding). (photo credit) The opinion for the Court, by Justice Oliver Wendell Holmes, Jr., rejected a challenge based on a contention that enforcement of the law against citizens of a constituent state would violate the 10th Amendment to the U.S. Constitution, which reserves to the states powers not delegated to the federal government. Interpreting the President's treaty-making power to be "not limited to what may be done by an unaided act of Congress," Holmes posited an overarching national interest in wildlife protection. Two Justices dissented but did not file an opinion explaining their opposition.

(Prior April 19 posts are here, here, here, and here.)

'No one would ever boo Obama'

On Tuesday, my 11-year-old son joined children across the country in what ought to become annual back-to-school tradition: He watched intently as the President of this United States extolled the virtues of hard work and diligent study as means to the fulfillment that comes with education.

"Obama was pretty good," my son said.

"Did anyone boo when he told you to do your homework?" I asked in jest.

My son's quick reply:

"No one would ever boo Obama."

A day later, some adults proved less in control of themselves than the average American middle-schooler.

President Barack Obama took his promise to reform health care to Congress last night (right). His speech was serious stuff -- dead serious, as anyone caught in the crucible of the U.S. health system well knows (prior post).

Congress responded with an absence of decorum that rivaled the most raucous Westminster backbenchers.

Just 2 examples out of many detailed in this Washington Post article by Dana Milbank:

► "You lie!" U.S. Rep. Joe Wilson (R-S.C.) blurted in response to Obama's assertion that his plan would not cover illegal immigrants. He spat the words so loudly that they were fully audible in TV rooms everywhere.

► "Rep. Al Green (D-Tex.), also on the GOP side of the aisle, felt the need to pound his fist in the air and make what looked, awkwardly, like a fascist salute."

This from officials who owe a debt of trust to the public that elected them and pays their salaries. More of the same, on health and education, from others who've sought to skewer rational debate these long summer months. The nonsense underscores a point made first by Justice Holmes and repeated on this blog 2 weeks ago: Even the most basic of human rights are not won without a fight.

This one's a knock-down drag-out.

Remember the right to health?

This time last year we blogged in wonderment on how the rhetoric of a right to health pervaded Democratic discourse in the United States.

We quoted longtime health care advocate Sen. Edward M. Kennedy of Massachusetts, of course, but also Speaker of the House Nancy Pelosi of California, and, most significantly, the preamble to the Democratic Party platform, which declared:

We believe that quality and affordable health care is a basic right.

It was a heady moment. Many of us recall far too vividly the health-reform debacle of the 1990s,. Have spent far too many hours in hospitals and on health-benefits websites. Have endured far too intimately the hardships of our uninsured (and underinsured) clients, friends, and family. Last August we found reasons for hope.

Fast forward a dozen months. This August, as in the '90s, fringe distortion dominates the mainstream media. Voluntary end-of-life counseling is transmuted into the dark fantasy of a "death panel." The fact that many health professionals already conduct such counseling as a matter of routine fades in this feat of political prestidigitation. Lost entirely are truly critical facts: 77 percent of us support the choice of a public option, and 47 million children, women, and men in the United States need health insurance.

In this topsy-turvy tumult it is easy to bewail deprivations of the right to health, to complain that the Democrats, the Executive Branch, President Obama, are not doing enough to protect that right. In the hope of aiding understanding of what's happening right now, this week my class will begin to learn about Human Rights by studying the concept, scope, and enforcement-or-not of the right to health. Even before we begin that study, however, I can't help but remember what a Oliver Wendell Holmes, Jr. had to say about human rights, nearly a century ago. As I've written (n.176), in 1916 the renowned U.S. Supreme Court Justice stated

that he did not ‘respect the rights of man . . . except those things a given crowd will fight for ...’

As a matter of theory, Holmes' hostile statement is of course troubling. But as a matter of practice, it is right on point. It requires hard work to entrench even the most basic of human rights. Change will happen only when it is not only some few officials in Washington, but also all U.S. supporters of health care, who do their part to make it happen.

Put another way:

What have you done for the right to health lately? What will you do once Congress' odd August recess comes to an end?

Legal realism renewal

"Experience," not "change," was the password in the announcement of Court of Appeals Judge Sonia Sotomayor (left) as nominee to be the next Justice of the U.S. Supreme Court.
Both the judge and President Barack Obama focused on the 1st word during yesterday's announcement (video clips below; Obama's remarks here; our colleague Tom Goldstein's superb analysis of the hearings to come here). (photo credit)
No need, really, to talk about the 2d word, change. All knew the media would not be able to resist shoehorning Sotomayor into identity niches -- stressing that if confirmed she'll be the 1st Latina and the 3d woman ever on the Court. (The media are less likely to mention the no-change aspects of her nomination -- she'd become the 9th former federal appeals judge, the 8th Ivy Leaguer, the 7th Eastern Seaboarder, and 6th Roman Catholic on the current Court.)
And so the emphasis is on experience. Experience includes Sotomayor's service on the 2d Circuit since 1998 (prior IntLawGrrls post), on the U.S. District Court in Manhattan from 1992 to 1998. And it also includes her gripping life experience as one who, raised by a widowed mother in a Bronx housing project, went on to a summa career at Princeton and Yale Law and in the public- and private-sector practice of law. Thus Obama invoked a legal axiom:

For as Supreme Court Justice Oliver Wendell Holmes once said, 'The life of the law has not been logic; it has been experience.' Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

The quoted line comes, of course, from the 3d sentence of Holmes' 1880 Harvard lecture on liability, published as The Common Law a year later. The line distills much of what's come to be called legal realism, the view that judging entails something more than unvarnished adherence to formal law. Holmes' lecture thus proceeded:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

For decades this reasoning had much currency in American legal circles. Then, in the late 20th century, formalism revived. Prized were judges who professed to apply the law only as it was -- to paraphrase the proclamation of then-nominee John G. Roberts Jr., to put aside Holmesian "prejudices" and call 'em as they saw 'em.
No less than Roberts had in 2005, yesterday Sotomayor pledged allegiance to the rule of law:

I firmly believe in the rule of law as the foundation for all of our basic rights.

No surprise there. Nothing less ought to be expected of a Justice. What was different was this: Sotomayor coupled that pledge with another,

to 'never forget the real-world consequences of my decisions on individuals, businesses and government.'

These confirmation hearings augur a return to a richer understanding of the rule of law.

Read On! Civilians and war casualties

(Read On! ... occasional posts on writing we're reading)


Hugo Slim, Killing Civilians: Method, Madness, and Morality in War (Columbia University Press, 2008), is a fascinating and far-ranging study of civilian suffering during war. The publisher's description explains:

... Slim analyzes the anti-civilian ideologies that encourage and perpetuate suffering and exposes the exploitation of moral ambiguity that is used to sanction extreme hostility. At what point does killing civilians become part of winning a war? Why are some methods of killing used while others are avoided?
Bolstering his claims with hard fact, Slim argues that civilian casualties are not only morally reprehensible but also bad military science. His book is a clarion call for action and a passionate defense of civil immunity, a concept that is more urgent and necessary today than ever before.

Much like Drew Faust's recent book on the dead of the Civil War, The Republic of Suffering: Death and the American Civil War (Knopf, 2008) -- about which IntLawGrrls posted here -- Slim's book (if less elegantly, with the fervor of a humanitarian activist rather than the authority of a master historian) helps to strip away the veneer of civility that we routinely impose on the brutality of modern warfare.

Slim identifies common military strategies as blatantly "anti-civilian" and suggests (hopefully) that "pro-civilian thinking and behavior" (7) can alter the violent balance of war and shift conflict toward the protection of civilians. He writes:

Above all, this is a book about intention and suffering, identity and ambiguity, tolerance and compassion.

(7) He seeks to complicate our understanding not simply of "citizen" or "soldier" but of "civilian" itself. (8)

Slim's effort to sort out the essence and liabilities of the "civilian" label is especially intriguing. He points out that civilians are often regarded with suspicion and as lacking integrity by soldiers, and that the sacrificial rhetoric of war accepts, and even promotes, not only military but also civilian casualties as a necessary prerequisite to positive change. Death and suffering can become their own justification in the face of a need to give meaning to tremendous and otherwise inexplicable loss. It is a reckoning that Faust finds in the mourning for and celebration of the Civil War dead: her preface is entitled "The Work of Death." She writes that the 1895 Memorial Day speech of Oliver Wendell Holmes Jr., who later would serve 30 years as a U.S. Supreme Court Justice,

became emblematic of the elegiac view of the war that hailed death as an end in itself.

(Suffering, 270)

For a military historian's perspective on Slim's volume and other aspects of war, past and present, see the blog of Mark Grimsley, the Ohio State historian who is now the Harold K. Johnson Professor of Military History at the U.S. Army War College.

(Cross-posted at Legal History Blog)

On January 25, ...

... 1882, Adeline Virginia Stephen was born in London. She grew up in a literary household -- her father was an editor who once had been married to the daughter of William Makepeace Thackeray, author of the novel Vanity Fair. After studying at Kings College she became part of the Bloomsbury Group. In 1912 she married Leonard Woolf and took his surname to become Virginia Woolf (right). Under that name she would write many novels and other works. Personal favorite: her 1929 essay "A Room of One's Own," "a discussion of women’s writing and its historical economic and social underpinning." Afflicted with psychiatric disorders throughout her life, she died in 1941, drowning herself in a river near her country home.
... 1996, a judge in Red Deer, Alberta, Canada, awarded a judgment of $750,000 to Leilani Muir, 50, whom the province's Eugenics Board had sterilized without her knowledge in 1959. Having spent her early life in foster homes, the orphan Muir was placed at age 10 (below right) in the Provincial Training School for Mental Defectives, where she was "declared a "moron"" -- as it turned out, a false diagnosis -- "and approved for sterilization." Then a teenager, Muir was told the surgery was for removal of her appendix; only later in life did she learned she had been sterilized. Her successful lawsuit opened the door to many more such actions. This Alberta heritage website elaborates on the extent of the province's sterilization program during the 20th century:

Many thousands of people endured similar experiences under Alberta's Sterilization Act. In 1928, Alberta became one of two provinces and twenty-eight states in North America to pass such legislation. The Act was based on the principals of eugenics, meaning "good birth". It was believed that if only those people with desirable genes bore children, the human race as a whole would improve. The Alberta government and pressure groups including the United Farm Women of Alberta sought to limit the reproduction of many kinds of people, including visible minorities and the "feeble-minded". They attributed much of the rise of crime, poverty, alcoholism and other vices to these people.
Almost 3 000 people were sterilized under Alberta's Sterilization Act. Many more were not released because they would not consent to sterilization. Even in 1972, the year the Act was finally repealed, fifty-five people were sterilized for their "danger of transmission to the progeny of mental deficiency" and for being "incapable of intelligent parenthood".

For readers in the United States, the case calls to mind the similar challenge that Carrie Buck (left) brought before the Supreme Court in 1927. Her unsuccessful suit prompted Justice Oliver Wendell Holmes, Jr., to comment on behalf of 8 of the Court's 9 Justices: "Three generations of imbeciles are enough."