Thursday, October 16, 2008

Why do they hate Freedom?

Saturday, October 04, 2008

Worcester v. Georgia, 31 U.S. 515 (1832)

Continuing with Will Shetterly's challenge to name a Supreme Court decision other than Roe v. Wade, here's one that I think even meets UUpdater's stricter criterion of raising current federalism issues that might be troubling to Sarah Palin (if she knew anything about either the case or the issues).

In Worcester, Chief Justice Marshall (that's him in the portrait) held that the Cherokee people were a sovereign nation entitled to the protection of the Federal government against infringement of their sovereignty by any of the constituent Federal states (in this instance, Georgia). Nevertheless, President Andrew Jackson, a fervent advocate of Famous UU Thomas Jefferson's "Indian removal" policies (which today would be called "ethnic cleansing"), took the (probably correct, in the narrowest sense, but obviously unjust) legal position that he was powerless to act under his Federal executive authority unless and until the Georgia courts expressly disobeyed the Federal court. (Georgia did nothing to expressly overrule Marshall's decision; they simply ignored it.) Congress, which agreed with Jackson on Indian removal, had no will either to impeach him or pass authorizing legislation. Thus, the Cherokees' judicial victory was only Pyhrric, and the eventual consequence of its toothlessness was the tragic Trail of Tears.

Some questions of present-day concern that Worcester would pose for Governor Palin, if she were sentient enough to apprehend them, would be:

1. What authority should the judicial branch have to direct or restrict the actions of the executive?

2. Should the executive branch possess implicit power, not expressly delegated in the Constitution or by legislative act, to enforce decisions of the judiciary?

3. To the extent the executive possesses such implicit power, what should be the limits of such power?

4. To the extent the executive posseses such implicit power, should there also be a corresponding duty or obligation to exercise it in order to prevent the intent of the judiciary from being frustrated?

5. If a President neglects obligations imposed by the judiciary, whether express or implicit, should there be a judicial remedy, or is impeachment by the legislative branch the only available recourse?

6. Should the President, Vice President, or other executive officers possess any implict power or duty to carry out policies that are not either expressly or implicitly granted by the Constitution, legislative act, or judicial decision?

7. Is there any difference between the Federal and Alaska constitutions on these separation-of-powers issues, or do exactly the same principles apply to the Governor and Lieutenant Governor of Alaska as to the President and Vice President of the United States?

8. What conclusions can be drawn from the decision in Worcester, if any, regarding the State of Alaska's capacity to conduct affairs of state with neighboring sovereign powers? As Governor of Alaska, have you conducted yourself in a manner consistent with the Worcester ruling on matters of international sovereignty? Why or why not?

Thursday, October 02, 2008

Buck v. Bell, 274 U.S. 200 (1927)

Over on his blog, Will Shetterly asks for some Supreme Court precedents that may have escaped Sarah Palin's attention. This one illustrates how far UU views of the differently abled and sexually active have evolved in less than a century.

“The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainty is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck ‘is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,’ and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tube....Three generations of imbeciles are enough.”

--Famous UU and US Supreme Court Justice Oliver Wendell Holmes, Jr., writing for the Court