Raise the cost of repression

Various sources are reporting that the US is constrained in its options in dealing with Iran. Go along to get along to achieve nonproliferation ends or speak out against a possible coup d’état? Given the US-Iran history, what constructive steps could the US possibly take? Much of the discussion has been caught in a narrative of inaction (See the Balkans c. 1990’s and Rwanda), undergirded by realist international relations theory. But as has been demonstrated in other international crises, the scope of policy options extends beyond, “Send in the Marines,” and do nothing.

Insofar as the US can, it needs to turn towards other levers of power to raise the cost of repression. Now is why international organizations matter; these are institutions that can call on reserves of neutrality, objectivity, moral authority and/or expertise. These institutions can be mobilized precisely so the “pawns of the west” accusation rings hollow. The UN High Commissioner for Human Rights, OAS, and/or the EU all have potential role to play – the US should be engaged in shopping for the right forum. I want to focus on a particular gambit that could yield results in the weeks and months ahead. In 1976 1975 Iran ratified the International Covenant on Civil and Political Rights, placing the Human Rights Committee in a position to request answers. Unlike the Human Rights Council, members of the Committee do not represent states; they serve in their individual capacity. The Chair of the Committee, Yuji Iwasawa, should call for Iran to present an urgent report on recent events before the Committee’s next meetings (preferably July 13-31 but October 12-30 is also possible). Such a move is not without precedent; for instance, in 1992 the Chairperson invited Yugoslavia to submit an inter-sessional report with a three week timeframe and the Committee considered the report within three months. A year prior, Iraq was called upon to submit a report to the Committee.

I admit, this sounds an awful lot like “the Life of Brian” – watch out they’re forming a committee! But the Human Rights Committee is in a position to act as an interlocutor for many of the concerns being expressed in the West: Are students being disappeared? Is the government showing restraint? Is freedom of expression being violently suppressed? Having a third party of experts, legally entitled to pose these questions, leaves an opening for further comment. Talking points could gain a sharper edge, for instance, “I believe Iran should meet its international legal obligations and cooperate with the Human Rights Committee request for an urgent report on recent events.” The US needs to initiate policy, set agendas, to make statements like that possible. Turn from the less stable ground of corruption accusations, to the more stable ground of pressing the leadership justify its response to protests in international forums. Also, other bodies like the Elders or the Club of Madrid thereby have a wider opening to raise the reputational cost of repression. Furthermore, turning to international institutions extends the prospect and the time horizon for accountability. Elites need to be pressed from above and below; action on the international level can demonstrate the world is not indifferent to the dangers of protest.

This turn towards international organizations is by no means a panacea. At best, moral suasion and international law have long been only partial shields against the forces of repression. But years later, the Helsinki Accords served as a tool in Eastern European protest efforts, showing the disconnect between agreements and deeds of the USSR. The US needs to use its leverage to provide more such tools for protesters in Iran.

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Two Seats Too Many

“The people have spoken, the bastards.”

I sympathize with Dick Tuck’s famously uncharitable reaction to losing an election in 1966, having watched the British National Party (BNP) win two seats in the European Parliament earlier this week. Immediately after their victories, I realized I’d never felt repulsed by an election result in precisely the same way. Certainly, I’ve been disappointed with the outcomes of elections in America – but that was the extent of it. Various American politicians say outlandish things – witness the Sotomayor nomination. There’s a fairly close race between Tom Tancredo, Newt Gingrich, and Pat Buchanan as to who can make the most over the top remarks. Nonetheless, they still attempt to remain within some sort of boundary – I think they frequently cross the line into demagoguery, but it is genuinely arguable.

The positions of the BNP, however, are nowhere in the neighborhood of genuinely arguable. Fetishizing fascism, racism, and Holocaust denial are just a few of the BNP’s (and/or its leaders’) many faults. If the word “Holohoax” is made in someone’s remarks, that someone should not hold elective office. Anywhere. Due to a remark like that I don’t really need to explore the views of the BNP’s leader Nick Griffin (Wikipedia). I’ll simply add, the BNP bans non-white, non-“native” British people from membership and seek to advance a policy of (supposedly) voluntary repatriation of non-whites. Holocaust denial, xenophobia, and racism all lead in the same violent, extremist direction. It is true that with 736 members the European Parliament is a big place, but two BNP seats in the European Parliament are two seats too many.

I focus on the BNP because I’ve been living in the UK, seen the run-up to the European elections, and have been paying attention to UK politics. But I’d be remiss if I didn’t mention that the UK doesn’t have a monopoly on extremist, far right-wing parties that demonize minorities to advance their racist/xenophobic agenda. David Miliband remarked it would be “a day of shame” for Britain were the BNP elected. Unfortunately, several countries in the EU share in the shame. The Guardian reported,

With the social democrats licking their wounds and the centre-right scoring victories whether in power or in opposition, the other signal trend of the ballot was the breakthroughs achieved by extreme right-wing nationalists and xenophobes.

Following on from the triumph of Geert Wilders, the anti-Islam campaigner, who came second with 17% in the Netherlands on Thursday, the hard-right and neo¬fascists chalked up further victories.

The anti-Gypsy extremists in Hungary, Jobbik, took three of the country’s 22 seats; in Austria two far-right parties mustered 18%, and extreme Slovak nationalists gained their first seat in the European parliament.

For the UK, there are a number of caveats that put the BNP victories in perspective. First, they didn’t win because of a groundswell of support for neo-fascism. Their victories were due to the collapse in the Labour vote (BBC). Furthermore, they garnered only 6.2% of the vote – proportional representation, the D’Hondt method, and the UK’s constituencies’ sizes contributed to their obtaining two seats. A cabinet member commented that voting for the BNP was like the ultimate protest vote – giving the finger to the establishment, a sentiment I’ve seen echoed in man on the street interviews. Altogether, the caveats and attempts to find silver lining amount to thin gruel (excuse the mixed metaphor). It is not a virtue of proportional representation that the BNP have gained seats in the European Parliament. We should not welcome the task of debating and defeating the BNP in future. To echo Miliband, it is shameful – shameful that the BNP is in a position where they need to be debated and defeated at all.

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Obama’s Cairo Speech

Well, I’ve wanted a blue marble speech from Obama for some time – a speech that speaks to the shared challenges of living on a delicate planet and that underlines the importance of coming together to meet those challenges – and some human dignity thrown in for good measure. All the 35,000 feet perspective, linked with some concrete measures would help too. I got one. Whatever his critics say in future, one cannot accuse Obama of lacking ambition. Ambition for mutual understandings, Rawlsian overlapping consensus building – ambition for young people, and ambition for what can be achieved in the 21st century. All that came out today in Obama’s Cairo speech.

I have a good deal of confidence in Obama, I hope that he can meet these challenging problems that have dogged successive administrations. I also hope that he will have partners, fellow statesman, but also civil society, NGO’s, international organizations, etc., that can further these goals. Who’ll be the next president of Iran? Will the EU admit Turkey? The foreign policy process, the international system, is a wholly interactive process. Though the Potus has a great deal of power, many levers at his disposal, many carrots and sticks – the process is still fundamentally an interactive one. Obama could be a shining example of liberal internationalism/cosmopolitanism and still fail utterly in realizing this ambitious agenda.

I also hope that long time horizons allow for moving beyond the inevitable stumbling blocks of the weeks and months to come. I mean, the Israeli-Palestinians conflict alone has more reversals, betrayals, and cycles of violence than I care to remember – and that’s just counting the last 15 or 20 years. I also have to recognize that there’s an aspect of this speech that papers over some serious hardship, some serious conflict that Obama artfully reconciled. Tradition and women’s rights, sustainable democracy and tradition, globalization and identity, inter-religious dialogue and tolerance/understanding – there are loads of longstanding tensions that Obama bracketed.

If I put my conceptual analysis/deconstructionist hat on – there’s a whole lot of remembrance and forgetting going on that allows for some pretty sharp-elbowed concepts to coexist in Obama’s presentation. Also, putting the US up against some of the standards he’s articulated could yield some uncomfortable deficiencies in American behavior in the not-too-distant past.

But for the moment, I’ll bask in the fact that I got my wish of a blue marble speech – and delivered with gusto too. Perhaps more later.

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Judicial Review: A Poor Way to Run a Republic?

Remarking that, “settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.” Ross Douthat takes a dim view of judicial review. Megan McArdle concurs, “…the process by which 7 judges enforced their consciences on the American public was itself borderline illegitimate; it was first, not in their proper job description, and second, a bad way to run a government.” Jeremy Waldron offers “The Core of the Case Against Judicial Review”, (html, pdf)

In this Essay, I shall argue that judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.

Waldron offers a particularly nuanced argument, the nearest to drawing me into the orbit of the judicial review skeptics. But ultimately, I disagree with Douthat, McArdle, and Waldron’s critique judicial review. When compared to the legislature, judicial review offers the prospect of durable rights protection, access to minorities, and higher quality decision. This is not to say that judges are perfect, or that judicial review is guaranteed to produce superior outcomes in every instance – on balance, judicial review offers a worthwhile contribution. (I won’t pursue this point much further because it seems like a copout, but I’d observe that the relationship between legislatures and courts in the US (and Europe, given the ECtHR) is a constructive, dialectical one – decisions aren’t final. Courts and legislatures may not be in the directly adversarial relationship constructed in the pro/anti judicial review discussion. Nonetheless, there’re important arguments to tease out that haven’t been represented in the Douthat, McArdle, and Waldron contributions.)

Judicial review does not turn judges into philosopher kings. It does admit a crucial veto point compatible with the principles underlying democracy (e.g. consent of the governed). Courts are situated in an epistemic community, aiming at objectivity, impartiality, and independence; all these elements are important. I say “aiming” intentionally because these need not be reached absolutely perfectly for judicial review to make a worthwhile contribution to the republic. Courts have articulated methods of analysis prior to examining a particular case. Thus courts approach a fact pattern beginning with an interest in considerations of fairness, justice, and liberty – in the US context as expressed in the provisions of the Constitution, in Europe, the ECHR. Therefore judges provide analysis, find facts, and offer reasons, supporting arguments, and evidence as to why their decision makes sense.

What are admissible and inadmissible as reasons and reasoning by judges is worthy of further consideration (here I draw on Stephen Macedo’s discussion of public justification). At their best, reasons may not be self-interested or narrowly interested. Reasons must be general reasons, thus reasons must be extendable to relevantly similar cases. Reasons must be public, thus reasons must be “widely and openly accessible; appeals to inner conviction or faith, special insight, secret information… are ruled out.” Additionally, the overall opinion that contains the reasons must have engaged with objections and alternatives; confronting counterarguments by anticipating objections and addressing them (“the Politics of Justification” p. 281, gated). Subjected to this standard of public justification, I’d say courts fare better than legislatures.

When analyzing the relationship between courts and legislatures and the prospect of allowing elected representatives or courts to decide on the distribution and limits of rights in society I judge the two alternatives according to three criteria; these are, protection, access, and quality of decision. Protection concerns determining where human rights are more likely to be protected and where citizens are likely to have secure, continuous access to the enjoyment of their rights. Access concerns the inclusiveness of the process, specifically examining to what extent minorities’ concerns are taken into consideration when deciding the limits and distribution of rights. The quality of decision metric concerns the kinds of arguments that are admissible in decision-making and the level of impartiality of the authority doing the analysis of the distribution and limits of rights. Overall, I view courts as being embedded in a structure that is more amenable than legislatures in meeting these criteria.

Judicial review’s location in a rich epistemic community offers more protection of rights than elected representatives. Altogether, a peer review type process occurs as a case travels through the court system. Interpretations are subject to analysis in light of the core texts (Bill of Rights, ECHR) as well as what other judicial interpreters have written about a subject. Additionally, the legal academy’s work in law journals and books are also cited in decisions; this material outside precedent is not necessarily cited as singly authoritative. Altogether, preceding decisions and work of the legal academy situates a judge in a richer, more informed context – certainly more than is given credit for in the epithet “philosopher king”.

Courts are members of and participants in a legal epistemic community. The boundaries of this community are to some degree permeable, such that public attitudes and opinions on the subjects reviewed are sometimes admissible (even though preference is given to the texts produced from centers in the community like court opinions and law journals). Thus courts are not wholly undemocratic, but they do retain a critical distance from the froth of democracy.

Relative to the legislatures, judicial review is a more accessible remedy for minorities with concerns about the distribution and limits of rights. In the US context judges are confined to deciding cases and controversies; there is harm that can be prevented or remedied. This avenue for participation is especially attractive for minorities because legislators are not obligated to hear or act upon unpopular positions. The independence of the judiciary also offers an avenue for a particular type of reasoning and analysis to occur.

Certain characteristics of legislatures lead to their producing potentially lower quality decisions regarding the limits and distributions of rights. Legislatures are not independent by design. They are structured to be responsive to public demands. They need not approach a piece of legislation with predetermined, articulated methods of analysis. In addition to concerns about fairness, justice, and liberty, legislators are free to include self-interested reasons like fundraising, logrolling, and short term political gain in their considerations. Legislators participate in credit-claiming and blame shifting, processes whereby they advertise their responsibility or disclaim responsibility for this or that act. Negotiating with extraneous concerns and materials means that a piece of legislation may be influenced by give and take on completely irrelevant materials. The large breadth of activity a legislature concerns itself, including budgets, perks, and patronage all serve to highlight the susceptibility of rights-oriented materials to other, potentially extraneous, concerns. Furthermore, legislatures are free to structure themselves in lines that distort underlying strengths or weaknesses in the electorate. Seniority systems and requiring supermajorities (like the filibuster) further undermine legislatures’ claims to producing high quality decisions. Altogether, the many prisims through which legislation is refracted offer wide latitude for rights mischief. As Bismarck said, “Laws are like sausages, it is better not to see them being made.”

Altogether, when the court system understands itself to be engaged in act of conducting an objective, impartial, and independent review of a case involving the limits and distribution or rights, then judicial review is acting as another layer of rights protection. As an additional veto point for legislative branch actions, judicial review offers the opportunity for filtering out potential intended or unintended biases in legislation when applying general, facially neutral laws to particular circumstances. Judicial review as an avenue of challenge is of special import to minorities; judicial review is more open to minorities than legislatures precisely because it poses the questions: Does the law in question do what it said it would on the package? How does the law in question match up against the system’s precommittments (Regarding precommitments and constitutions, see, for example Cass Sunstein’s “Designing Democracy”,here or here)? Furthermore the absence of logrolling and other potentially corrosive practices in decision-making, allows courts to reach higher quality decisions. Once again, this is not to say that judges are perfect, or that judicial review is guaranteed to produce superior outcomes in every instance. I merely contend that, on balance, judicial review is structured such that it is more likely to provide secure, continuous access to the enjoyment of rights.

Judicial review does not convert judges into philosopher kings. Judges lack the power to initiate. Courts may strike down legislation, judicial review does not turn them into the promulgators of legislation. In line with the principles underlying democracy (e.g. consent of the governed), important agenda setting functions are properly retained by the legislature.

Altogether, I have offered a thick account of courts and what is undertaken in judicial review. My account of legislatures has been thinner than that of Waldron. (I contest Waldron’s assumption about political equality because I find it an area that is problematized amongst elected representatives; even in “advanced” democratic societies issues surrounding the rights of migrant workers, racial minorities, women, etc., remain hotly contested in legislatures. Political equality is not a given.) Lawrence v. Texas, Roper v. Simmons, Brown v. Board, Loving v. Virginia in the United States, Goodwin v. UK in the ECHR – just a few of the cases where judicial review provided a crucial push towards greater human dignity. Those making the case against judicial review have a steep hill to climb indeed.

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