by Slate. com
Slate eBook Club
December 2003
The Best of Slate Edition
Politics:
Blinding Justices Rod Smolla
Violence Silence Robert Weisberg and David Mills
Moore's Law Christopher Hitchens
"Natural-Born" Killer Jefferson Morley
History:
Dallas Through the Looking Glass David Greenberg
Monumental Folly Christopher Benfey
Everybody Loves Reagan David Greenberg
Adolf's Alive! David Greenberg
Trading Places Carol Kino
The End of History Fred Kaplan
America's Forgotten Empire Mark Lewis
Marching Orders Mark Scheffler
Poems:
"Every twelve years, give or take this moment" Dionisio Martínez
Elegy for the Saint of Letting Small Fish Go Eliot Khalil Wilson
Not a Poem About Driving at Night Erika Meitner
Books:
The Not-So-Wild Thing Ann Hulbert
The Storyteller's New Clothes Adam Kirsch
L.A. Without a Map Adam Kirsch
Harry Potter and the International Order of Copyright Tim Wu
Cents and Sensibility Adelle Waldman
Drop the Gun James Surowiecki
Television and Movies:
Alien Autopsy Michael Agger
Swan Song Alex Abramovich
Assessment: Pixar Chris Suellentrop
Cinema of the 'Stans Ed Finn
Slain, at Last Hillary Frey
Clueless Patricia Cohen
Assessment: The Simpsons Chris Suellentrop
Music:
OutKast Is Good Sasha Frere-Jones
Hasten Down the Wind Bill Barol
The Beethoven Mystery Jan Swafford
Steely Dan Is Getting Old Fred Kaplan
Moscow in the Meantime John Morthland
Sports:
Needles and Pens Charles P. Pierce
Baseball and the Bird Josh Levin
Whither the Fridge? Josh Levin
Presumed Innocent Jeremy Derfner
The Anti-Ichiro David Shields
The Nightmares of NASCAR Mike Shropshire
Chuck Those Woods Nick Schulz
Food, and Wine:
Romancing the Microbe Sara Dickerman
Grape Deceptions Mike Steinberger
The Marvelous Michelin Man Mike Steinberger
The Liberace of Chocolate Sara Dickerman
"I Say the Hell With It!" Ann Hulbert
Diary:
Diary of a Development Worker in Afganistan Rahul Chandran
Diary of an Activist in Zimbabwe Bev Clark
Science and Technology:
Why You Can't Keep Up Timothy Noah
Digging for Googleholes Steven Johnson
Have You Flown a Ford Lately? Brendan I. Koerner
Iraq: The Computer Game David Plotz
My So-Called Universe Jim Holt
What Fuel Does Voyager 1 Use? Brendan I. Koerner
Geomagnetic Storms Brendan I. Koerner
Why Don't Hurricanes Hit L.A.? Andy Bowers
Health and Medicine:
Trick or Treatment Maia Szalavitz
Estrogen Uncovered Eliza McCarthy
Wake Up, Little Susie David Plotz
Did I Violate the Partial-Birth Abortion Ban? Warren M. Hern
Money:
It Oughtta Be the Shoes Rob Walker
The Economics of Suicide Charles Duhigg
Lies, Damn Lies, and Focus Groups Daniel Gross
You're Not Rich, but Now You Can Fake It Daniel Gross
Make Money Fast!!!! Jonathan Rauch
The Great Rebate Scam Carol Vinzant
Fantasy Economics Robert Shapiro
Home and Family:
Tween-Age Wasteland Ann Hulbert
Abolish Marriage Michael Kinsley
Holy Matrimony Dahlia Lithwick
Canine-11 Jon Katz
Love by the Numbers Jordan Ellenberg
Oh, No: It's a Girl! Steven E. Landsburg
Travel:
Tokyo on One Cliché a Day Seth Stevenson
Humor:
Mime Is Money Emily Yoffe
Hello, Moon Amanda Fortini
My Life as a Phone Psychic Emily Yoffe
The Poetry of D.H. Rumsfeld Hart Seely
Bimbo Contest Dahlia Lithwick
Miscellaneous Articles:
The Access Trap Jack Shafer
Smoke and Mirrors Douglas Gantenbein
How Big Is Rhode Island? Andy Bowers
Blinding Justices
Does the Constitution allow us to scrap the judiciary?
By Rod Smolla
Posted Tuesday, Nov. 4, 2003, at 12:09 PM PT
Affirmative action, abortion, the Ten Commandments, the Pledge of Allegiance, coddling criminals, protecting terrorists. Pick your poison, and somewhere, someone's arguing that this is all the work of federal judges—a godless, gay-loving, politically correct cabal conspiring to foist the liberal agenda on a pliant people. Say you are dead-set certain that federal judges from the Supreme Court on down have hijacked the Constitution, holding the country hostage. What can you do about it?
The judges seem to have you in a constitutional lock-hold. It's fourth-grade social studies run amok: The Constitution is the supreme law of the land. Whenever an ordinary law passed by Congress or a state legislature conflicts with the Constitution, the Constitution trumps. Federal judges decide what the Constitution means. And judges have lifetime tenure, provided they exhibit good behavior. You could try to impeach the bums, but that takes a two-thirds vote of the Senate, which you'll never get—look at the Bill Clinton fiasco.
What galls you the most, what really sticks a constitutional crick in your craw is that federal judges are themselves the ones who invented this system. They're the ones who came up with the idea that a judge can strike down an act of Congress—a rule that does not appear anywhere in the text of the Constitution.
And then it hits you! A brilliant, blinding insight, piercing the mind like a diamond bullet: a constitutional loophole. A loophole codified in the Constitution itself. Thus, with the singsong tremolo of a preacher reading Scripture, you intone the words of the "exceptions clause," Article III, Section 2 of the Constitution: "In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
That's the ticket! Maybe the courts control the Constitution, but Congress controls the courts. It gets better: Article III vests the judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So all those lower federal courts are the creatures of Congress. The judges may have tenure, but the courts don't. Congress could eliminate them all!
And so it is that a number of imaginative conservative pundits, afraid the federal courts will oppose the Ten Commandments, impose same-sex marriage, and install a pledge to one nation not-under-God, have begun floating the claim that Congress could and should abolish the jurisdiction of federal courts to hear any such cases and that we should be lobbying our congressmen to do just that. Lower courts owe their existence to Congress, they argue in op-eds across the land, and Congress thus has plenary power to limit the jurisdiction of lower federal courts as it pleases. As to the Supremes, the exceptions clause in Article III clearly instructs that the appellate jurisdiction is subject to such "exceptions" and "regulations" as Congress shall make. In theory you could use these powers to "except" the whole liberal agenda from judicial review.
Will the plan fly? Th
e story starts with a case titled Ex parte McCardle, decided in 1868. The Supreme Court was confronted with an appeal brought by a newspaper editor from Vicksburg, Miss., named McCardle. He had been jailed by the Union Army for his editorials attacking Reconstruction legislation, on grounds that he was disturbing the peace and inciting insurrection. He filed a petition for habeas corpus challenging the legality of his confinement, and his case was ultimately appealed to the Supreme Court, under a federal statute granting the Supreme Court appellate jurisdiction over such cases. While McCardle's case was pending, however, Congress repealed the jurisdictional law McCardle had been using to support his appeal. The question then arose whether the Supreme Court could go forward and rule in McCardle's case anyway or was instead bound to dismiss the appeal for lack of jurisdiction. The Supreme Court dropped the case like a hot rock. Why? Under Article III of the Constitution, the court reasoned, it would normally have the power to hear cases involving questions of federal law, such as McCardle's. When Congress passed the original statute authorizing habeas corpus appeals, Congress was just, in effect, "confirming" this jurisdiction. Yet the court felt that Congress, having given, could taketh away. So, citing the exceptions clause, the court held that once Congress repealed the law on which McCardle's appeal had been based, the court had no choice but to leave him out in the cold.
The McCardle decision, coupled with the text of the exceptions clause, makes the argument for the legitimacy of jurisdiction-stripping seem strong. But it's not so simple. Because while Congress had cut off the specific statutory route that McCardle had used, it had not eliminated all recourse that McCardle or others like him had to the Supreme Court. Alternative routes to the court remained open, and indeed, the same year McCardle was decided, the Supreme Court entertained a habeas petition from a person named Yeager who also challenged his confinement and the legality of Reconstruction legislation. Yeager used a different federal statute than McCardle to support his appeal, and the court accepted it. McCardle thus tells us that Congress may eliminate a specific statutory path to Supreme Court review, but it does not tell us whether Congress could zero-out an entire class of cases. In other words, Congress may apply the squeeze, but perhaps not the full freeze.
It is usually unsound to interpret any one constitutional provision in isolation. The exceptions clause must coexist with many other constitutional guarantees, such as equal protection or free exercise of religion. Congress could not use its power to regulate federal court jurisdiction, for example, to declare that while the courts may hear civil rights cases, they may only hear them when they are brought by white people. Nor could Congress pass a law limiting religious free-exercise challenges to Catholics only. And Congress could not say, for example, that the Supreme Court may take cases involving abortion, but only if it rules pro-life. Beyond rights laid out in the Constitution itself, other limitations on the exceptions-clause power may also exist. Many scholars and jurists have argued that Congress may use the exceptions clause only to enact neutral jurisdiction laws, run-of-the-mill rules of procedure that regulate jurisdiction but do not attempt to control substantive outcomes. True jurisdiction laws are driven by administrative and procedural factors that properly influence policies regarding jurisdiction—issues like the size of a court's caseload or the efficiency of court procedures. When Congress, under the guise of limiting jurisdiction, tries to kick out all Pledge of Allegiance cases, however, the underlying agenda is transparently not about caseloads but results.
In setting up a regime of three co-equal branches of government, creating the classic system of checks and balances, the framers devised a constitutional version of Rock, Paper, Scissors. Each branch has its own unique strengths and its own unique weaknesses. Rock, Paper, Scissors would lose its point if we gave one of the implements a superkibosh power. And the system of checks and balances will lose its balance if one branch gets a supercheck.
The framers did not create a system of direct democracy. They created a republic and divided power. The idea of democracy is not America's great contribution to human history. America's great contribution is the idea of rights. The power of independent judges to "call 'em as they see 'em" is a cornerstone of this system. There is nothing wrong with intense debate over the nature of our constitutional rights. Citizens and members of Congress are of course entitled to rail against the courts when they don't like judicial rulings. But there is something wrong with stealth efforts to overrule the courts, using phony jurisdiction laws to manipulate judicial outcomes. That's poaching. The practice threatens to devolve into a kind of interbranch blackmail: Watch how you rule, or we'll shut you down. In thinking about our constitutional system of checks and balances, it is important to take the long view. Over the long haul of history, our nation has proved stronger and more resilient because of our commitment to taking constitutional principles seriously. Preserving an independent judiciary is an indispensable element of that commitment.
Violence Silence
Why no one really cares about prison rape.
By Robert Weisberg and David Mills
Posted Wednesday, Oct. 1, 2003, at 11:07 AM PT
Imagine the following defense argument being put forth to a judge who's about to sentence a defendant—an attractive long-haired young man of small but athletic build and gentle demeanor—after he has been convicted of molesting a teenage victim:
Your Honor, it is unfair and disproportionate to sentence my client to jail, since it will almost certainly subject him to violent and probably sexual assault while incarcerated. As the evidence we will proffer shows, there is a 50 percent chance he will suffer an aggravated assault and at least a 40 percent likelihood he will be raped and sodomized on multiple occasions while imprisoned. We thus urge you, Your Honor, to recognize that any sentence of incarceration effectively includes these "secondary" sanctions.
This motion seems fanciful, but it would be perfectly plausible for a defense lawyer to make. In fact, one wishes more defense lawyers would do so, since all these contentions are essentially true. While hard data on sexual assaults in prison is not easy to find, and observers dispute the precise frequency, no one who knows American jails and prisons doubts that rape and sexual assault—usually perpetrated by other inmates but occasionally by prison staff—are facts of daily life. What is surprising is how easily the citizenry and the judicial system have come to accept the brutal reality of our prisons and absorbed it into mainstream culture. A new bill adopted by Congress purports to address this widespread apathy toward prison brutality. But, whether or not its proponents were sincere, the bill is a superficial gesture of little substance.
This past July Congress enacted the Prison Rape Elimination Act of 2003, providing $60 million for a two-year survey of state and federal prisons to determine the pervasiveness of prison rape and creating various panels to offer remedies. Congressional sponsors of the bill included the most improbable political allies, and support for the bill ranged from the ACLU and Human Rights Watch to conservative evangelical organizations. (The clear interest of the latter in promoting religion among inmates has helped create a strange-bedfellowship with leftist prisoners' rights groups.) The bill passed both houses unanimously, and President Bush, flanked by two former inmates who had been raped in prison, signed it in early September. The reason you've never heard of the Prison Rape Elimination Act is probably that no one who knows our criminal justice system believes it will do much of anything to eliminate prison rape.
Even the more modest earlier title for the bill—the Prison Rape Reduction Act—was an ambitious predictor of its likely outcome. Because despite its grand words and its sponsors' passionate expressions of concern, the main thing the law aims to do is collect data, and that may be, paradoxically, both quixotic and redundant.
It is quixotic because the obvious problems of unreliable observations and underreporting inherent in prison assault make highly refined objective data a fantasy. It is redundant because the relevant facts are already clear: A rece
nt report by Human Rights Watch synthesized data and various perception surveys from around the United States and conservatively concluded that approximately 20 percent of all inmates are sexually assaulted in some way and at least 7 percent raped. A cautious inference is that nearly 200,000 current inmates have been raped and nearly 1 million have been sexually assaulted over the past 20 years. And, as HRW notes, prisoners with certain characteristics—first offenders, those with high voices and passive or intellectual personalities—face far higher probabilities. Moreover, the reports reveal that sexual slavery following rape is also an ordinary occurrence. Stories abound of prisoners who, once they are "turned out" (prison jargon for the initial rape) become the rapists' subordinates, forced to do menial jobs and sometimes "rented out" to other inmates to satisfy their sexual needs.
Of course, prisoners face not only sexual assault from other inmates, but violence of all forms, often leading to horrific injuries and death. All too typical is the story, repeated by HRW, of a raped Texas prisoner with obvious injuries who reported the rapes (eight alleged rapes by the same rapist) to prison authorities. The authorities interviewed the rapist and the victim together, concluded it was nothing but a "lovers' quarrel," and sent them both back to their cells, where the victim was again repeatedly raped and beaten even more brutally. Also surprisingly typical is the very recent, notorious killing of Father John Geoghan, the Massachusetts priest imprisoned for sexual assault, whom the state correctional system effectively, if unintentionally, sentenced to death in a non-capital punishment jurisdiction.
Even if allocating the time and funds to collecting this additional data were somehow useful, how does the federal government propose to find it? Does the Department of Justice, charged with overseeing the study, have some secret methodology at its disposal that it's not sharing with us? And even if all this further data collection somehow dramatizes the problem, what then? Despite promises (or threats) in the new law to take prison officials or state governments to task for failure to stop rape and assault, the real cause probably lies in a more mundane and intractable reality: Inmates will attack inmates if enough of them live in sufficient proximity, with insufficient internal security, for long enough periods of time. That means that while Congress funds lots of studies, we already know that the key variables are really the sheer rates of incarceration in the United States, the density of prison housing, the number and quality of staff, and the abandonment of any meaningful attempts at rehabilitation. If it is honest, the new DOJ commission created by the law will suggest what we already know is necessary: that we lower incarceration rates, reduce the prisoner-to-space ratio, train huge numbers of new guards to protect prisoners, and abandon the purely retributive and incapacitative function of prisons. But there is no political will for such changes, which is perhaps why we fund studies of the obvious in the first place.
