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1. Legal Conservatism and the Progressive Blame Game

Author:
Jesse Merriam
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
Humanitas
Institution:
The Center for the Study of Statesmanship, Catholic University
Abstract:
In a recent essay in The Independent Review, I praised Bruce Frohnen and George Carey’s Constitutional Morality as “one of the best, if not the best, constitutional law books of the last decade.” As I explained in that review essay, Constitutional Morality is distinct from many other excellent pieces of constitutional law scholarship in both its ideological breadth and analytical depth. By “ideological breadth,” I am referring to how, as compared to other works in constitutional law and theory, Constitutional Morality resists partisan tropes and examines how both conservatives and liberals alike have derogated their constitutional duties. The book thereby exposes the deficiencies of the bipartisan consensus supporting our constitutional order. Constitutional Morality’s publication in 2016 is thus particularly apt, as the presidential election that year represents a reconsideration of the commitments and coalitions underlying our national political parties and institutions
Topic:
Legal Theory, Conservatism, Ideology, Progressivism, Legal Sector, and Partisanship
Political Geography:
North America and United States of America

2. Reflections on Judicial Duty

Author:
Patricia M. Lines
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
Humanitas
Institution:
The Center for the Study of Statesmanship, Catholic University
Abstract:
In this timely study Bruce Frohnen and George Carey uncover serious lapses in the operation of our federal government—lapses which constitute a depressing failure to be true to the Constitution. The authors charge all three branches of the federal government with neglect of their constitutional duties and, all too often, exceeding their constitutional authority. Congress has delegated law-making responsibilities to administrative agencies and has not exercised oversight of the agencies it has created. Presidents have usurped lawmaking functions through executive orders, and the Supreme Court has failed to check the reach of the legislative and executive branches. I applaud the authors’ efforts to call attention to these serious problems. While I agree with the Frohnen and Carey concerning the Court’s failure to check the excesses of the executive and legislative branches, especially during the New Deal, I respectfully disagree that the Supreme Court has exceeded its judicial power. To make their case, our authors focus on just one highly controversial and unpopular case, Roe v. Wade. I will argue that the Court in this matter has remained within its constitutional boundaries, following common law and its own self-imposed rules.
Topic:
Governance, Legal Theory, Judiciary, Legal Sector, and Abortion
Political Geography:
North America and United States of America

3. A Response to Critics

Author:
Bruce P. Frohnen
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
Humanitas
Institution:
The Center for the Study of Statesmanship, Catholic University
Abstract:
My thanks to the participants in this symposium. I know that my co-author, George Carey, would be as gratified as I am at the serious consideration given, here, to Constitutional Morality and the Rise of Quasi-Law. At first I was puzzled by William Gangi’s summation of our book as one that addresses the adage that “a constitution originating in one country may not be transplanted to another country and be expected to work in the same manner as it had in the country of origin.” The book includes some comparative analysis of constitutions to show their reliance on the underlying culture for their success and the importance of the fit between tradition and text. Still, it focuses on the American Constitution, not on the application of any country’s constitution to other countries. Then again, as Gangi notes, in a more fundamental sense our book is about the interaction between the written constitution of the United States and the unwritten constitution of institutions, beliefs, and practices that shaped the American people, the American culture, and the constitutional morality that until fairly recently held officials to their public duties. This is a particular instance of the universal problem of “fit” between constitution and culture.
Topic:
Governance, Constitution, Legal Theory, and Legal Sector
Political Geography:
North America and United States of America

4. Frontier Justice: A New Approach for U.S. Rule of Law Assistance

Author:
Robert M. Perito and Donald J. Planty
Publication Date:
05-2018
Content Type:
Commentary and Analysis
Institution:
Public International Law Policy Group
Abstract:
United States rule of law assistance is failing to help recipient governments provide good governance, security and justice. This is particularly true in three categories of states in crisis: (1) states that are experiencing extreme levels of organized criminal violence; (2) states where international Islamist terrorism is attempting to impose extreme versions of Shariah law; and (3) states where corrupt authoritarian governments have morphed into kleptocracies. Though conditions have changed in these countries, U.S. rule of law assistance continues to employ a fragmented and technocratic approach to improving foreign criminal justice systems. Dedicated officials, civil society leaders, and concerned citizens in these countries want to establish the rule of law. In many cases, our current assistance does not help them change the prevailing paradigm. What new approaches for U.S. rule of law assistance are required to provide them with the support needed to change the system? In countries threatened by criminal violence, terrorism, and corrupt authoritarian rule, the study found that those working to promote a democratic political process believed rule of law was the essential element in providing good governance, security, and justice. They pointed out that law enforcement authorities and the criminal justice system were primary targets for those seeking to impose despotic regimes. They looked to the United States as a natural ally sharing common values and providing a model of what they can achieve. These individuals confirmed the critical importance of U.S. assistance in preventing further deterioration in the local conditions and to providing any hope that the situation might be improved. In all cases, these activists lamented the fact that U.S. rule of law assistance programs were often not strategically focused, culturally relevant, or adequately resourced. They made clear that more—not less—U.S. help is required to move forward. Indeed, they called for increased use of U.S. political and diplomatic leverage, closer consultations on program selection and development, and more intelligent targeting of financial resources. Whether aimed at establishing justice, enabling economic development, or promoting foreign investment, U.S. rule of law assistance has been a tool of U.S. foreign and national security policy since the end of World War II. The Obama Administration, however, subordinated rule of law programming to assistance for promoting democracy, protecting human rights, and enabling good governance. There also was a sharp drop in the financial resources devoted to aiding the justice sector. Outside of large programs in Iraq and Afghanistan, funding for aid to courts and corrections fell from several billion dollars to $1.9 billion in 2013 to less than $500 million in 2016. At the same time, rule of law assistance became ‘securitized’ with assistance increasingly focused on convicting and incarcerating drug traffickers and terrorists. The study identified other conditions and practices that undermined the effectiveness of U.S. rule of law programming. From the Washington perspective there is no readily knowable number for the total amount the United States spends annually on rule of law assistance, nor is there a common policy, doctrine, strategy, or coordinating mechanism for this aid. Funding is provided from a number of legislative funding sources, allocated to various government departments, and then spread among numerous implementing partners, primarily non- governmental organizations (NGOs) and commercial contractors. Assistance programs militarize civilian security forces and train prosecutors to charge terrorism suspects and jailors to prevent radicalization. Government agencies concerned with the rule of law programming utilize staff with legal and law enforcement backgrounds largely as advisors and rely upon generic program officers to handle program design, funding and program management. As a result, establishing the rule of law is less a tool than an end state that hopefully will result from programs to ensure free elections, fight drug trafficking, and counter violent extremism. In the field, the study found the administration of U.S. rule of law assistance is neither strategically focused nor designed to produce sustainable change. U.S. programs fail to emphasize that state building efforts are political initiatives and not technical exercises. Program funding is not concentrated to achieve objectives and mobilize sufficient local support. In areas where criminals, jihadists, and insurgents operate without respect for national borders, U.S. assistance does not have a regional perspective. Project implementation is also affected by a lack of U.S. government staff with legal and law enforcement backgrounds on the ground and by risk adverse State Department personnel policies that restrict the movement of U.S. officials making it difficult for them to meet with counterparts and visit project sites to access progress.
Topic:
Security, Governance, Legal Theory, Rule of Law, Borders, and Legal Sector
Political Geography:
North America and United States of America