Apparently, a student editor was assigned to write about Philip Morris USA v. Williams, but thought this far too mundane a topic. Here's the first paragraph:
The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment's first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture--to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams, the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment--now itself part of the machinery of cruel myth and illusion--into a tool for equality and justice.
And the last:
One small child dies of starvation every five seconds. That child is one of nearly ten million people who die every year because of hunger. It would be hard for us to imagine watching a child die. In fact, if it were happening in front of us, most of us would do everything in our power to stop it. We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty. Yet we live with this world, and we live with this Amendment. And we violate it every five seconds.
The Supreme Court, 2006 Term Leading Cases I. Constitutional Law C. Due Process (121 Harv. L. Rev. 275 (Nov. 2007).
I haven't looked up the full article, but other than the argument that it's maybe a bit too bold of a law student to turn a law review article into an apparent polemic. I don't really see the point.
Eric Muller's prediction is accurate -- but that's not depressing; it's the good news.
Gotta get back to billables.
I remember being a 2L editor on a law review and being disgruntled at times. Much of that work is sheer drudgery, and sometimes the board members can be stank about it.
If I wanted to take my revenge, I suppose slipping a parody by the editors might be one way of doing it.
Ted, it sounds as though you're appalled kind of easily. These are just law students. Flashiness is par for the course.
My mistake then.
The article I'm writing for law review is described as a "comment" by our law review staff, as opposed to a case note. It is essentially a commentary article rather than a simple summary of a recent case. However, I did consciously make an effort to avoid using arguments that were beyond the pale because I realize as a student I don't have an enormous amount of credibility as an author.
Sad state of the legal academy when you can't tell if this is serious or a joke.
I personally think that Yale Law Journal should not have allowed David Bernstein to put quotes around the phrase civil rights in his student article:
The Supreme Court and "Civil Rights"
And in fact, if I had my way, the wouldn't have published it at all. Indeed, David Bernstein has written things that have gotten into law reviews that I think are truly idiotic.
I am not going to act like my opinion is supreme and get all self-righteous and preening when a law review publishes David Bernstein or any other article that I do not particularly like. =)
Actually, this was in the May 2007 issue, which means it was probably written by a 2L. Supreme Court case comments are written by beginning 3Ls for the November issue, and students who were 2Ls in May 2007 would be 3Ls by November 2007 (the Philip Morris case comment was 121 Harv. L. Rev. 275).
So... same student? Wouldn't be surprised.
This is an excellent point.
I haven't read the case comment here, but assuming it does an adequate job of characterizing the case and commenting on its significant characteristics, the Harvard Law Review would have let it run under anyone's management, and would have been right to do so.
Also, the President of the Harvard Law Review does not play a very significant role in article selection.
A first basic observation concerns the type of conduct that we choose to punish. For example, tobacco is responsible for far more destruction of American life than marijuana, crack, and powder cocaine combined. n38 While Congress created the much-maligned 100:1 crack-cocaine disparity, the crack-cigarette disparity boasts a ratio of infinite [*280] proportions.
infinite! Be glad it isn't written "literally infinite"
The inner-city poor ensnared by the draconian drug laws that characterize our carceral state do not have shareholders and boards of directors with connections. They do not have armies of lobbyists or public relations specialists studying the latest social psychology research in order to design strategies to manipulate and exploit attitudes and behavior. Nor do they have Supreme Court Justices meticulously using their skills of legal reasoning to craft extratextual arguments that grant them relief.
They do, however, have crack cocaine.
This dissonance between harmful social consequences and the types of conduct we choose to punish is part of a larger phenomenon of a society that defines deviant behavior in an irrational manner, often influenced by racial, socioeconomic, and psychological factors that have nothing to do with the stated goals of criminal law or punishment. n39
It may take me five minutes to locate such a person.
But I happen to agree that the 14th amendment, written with the protection of freed slaves after the Civil War, was hijacked by the late 19th and early 20th century Courts into protecting vested property and economic interests against reasonable state regulation and interference. And, if I'm not mistaken, professors of Mr. Bernstein's ideology heartily approve of this hijacking and wish it to be resumed.
He wasn't being hyperbolic by using the word "infinite." That is literally correct. The ratio of a number greater than zero (the criminal punishment for possession/sales of crack cocaine) to zero (the criminal punishment for tobacco possession/sales) is infinite.
Yes it does (re: drug policy), but most of it is a rant about how powerful corporate interests control the government (and specifically the court) to keep the downtrodden, well, downtrodden...
The second to last paragraph:
The Fourteenth Amendment currently offers no protection to the 38,000 American citizens who die each year just by breathing our air. It should. The money in a corporate bank account is a constitutionally protected interest. If that money is threatened, the great forces of justice and courts and power and violence will come to its defense. Yet the Justices do not rush to the defense of the 400 million children who are chronically hungry. n54 What has happened to their lives and their liberty? Why not protect the poor in third world countries? Why not have an amendment that said to them: your limbs will not be wearied, your children will not be malnourished, your homes will not be pillaged, polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel. Why not say to our own workers: you have a right to a living wage because without that, forces beyond your control are depriving you of life and liberty. It is indeed a strange world in which a lifeless wealth aggregation can have more protection than millions of starving children. It was so when corporations received more justice than blacks who were lynched and women who could not vote. Still it is so. We must develop a set of constitutional doctrines that gives enforceable rights to these groups and to these communities - for they experience constitutional harms that we have [*285] too long ignored at the hands of collective choices that we have too long refused to embrace as our own. n55
Good point - I had initially read it as the author comparing the "destruction of American life" of crack-cocaine vs. cigarettes (particularly those manufactured by powerful corporations, such as PM)
Sasha is correct that, barring extremely poor writing or analysis, the editors will not stop a student piece from being published, regardless of how misguided it may be. Which, provided that policy is applied evenly, is how it should be.
So this "analysis" was .... good?
Virginian:
No it is undefined.
To compare apples to apples perhaps the comparison of the punishment of possession/sales of crack cocaine to the punishment of possession/sales of powder cocaine would be more reasonable and relevant.
But then it wouldn't fit the Case.
I'm with this guy, he's got some good ideas for a Constitutional Amendment.
The ratio of a number greater than zero (the criminal punishment for possession/sales of crack cocaine) to zero (the criminal punishment for tobacco possession/sales) is infinite.
Kazinski:
No it is undefined.
Beat me to it. The limit of the ratio as the denominator (tobacco punishment) goes to zero (from the right) is (positive) infinity.
True, so one takes the ratio of y/x in the limit as x->0+ (as x goes to 0 from a positive direction). What number is that?
Yes, a/b -> 0 goes to infinity (for any non-zero a) as b goes to zero, but many functions have different values than their limits.
There is no ratio between the penalties for adult possession of cocaine and of cigarettes in the US.
Apparently, the author is unaware that the language and spirit of the 14th Amendment was designed NOT to give African-Americans the vote. A color-blind version was first proposed, but it was too radical to get through Congress b/c it might have given African-Americans the right to vote, so they proposed the watered-down version we got.
2. Also, the first sentence attacks capitalism, but in capitalist countries life expectancies are higher. Compare African socialist and Asian capitalist countries that were at a similar state of development in the 1960s.
Or North with South Korea
Or the former East with West Germany
Or Taiwan and Hong Kong with a pre-capitalist mainland China.
If the author really cared about poverty and death (and understood what he was writing about), he would be advicating capitalism, not attacking it.
Care to define one that is continuous?
I wonder if the author would apply such reasoning to unborn children and abortion?
I think we all know the answer to that one.
If we assume the student used his words with technical precision (a very charitable assumption in light of the article generally), he actually phrased it correctly. The usual way of explaining the 14th A is that it protected civil rights, but not political rights (as you note). The distinction at the time was that civil rights allowed the person to engage in ordinary commercial and public transactions (as opposed to political functions such as voting or private functions such as schooling).
Most likely the student's choice of words was fortuitous.
First, I am not sure if the first sentence is "attacking" capitalism or not. Second, I am too lazy to actually read the article to find out.
However, I would say that their are critiques of "capitalism," whatever one means by that term, that fall short of advocating its abolishment.
I think modifications of the "system" are reasonable to advocate for. I think most rational individuals would agree that their is a place for markets and a place for private property.
Is Western Europe capitalist? I suppose that depends on how narrow or broad your definition of that term is. I would say it is, under my definition. I would also say it is more socialist than the United States.
Compare life expectancy and infant mortality in Western Europe and the United States. It is not clear that what we need is more capitalism, narrowly defined. That is not the same thing as saying that we should end capitalism, broadly defined.
It may take me five minutes to locate such a person."
Can you get any more offensive and racist?
Can you get any more offensive and racist?
No. It sounds like he is celebrating diversity. If he really was racist he wouldn't put himself in a position where he was only 5 minutes from locating a "transgender radical lesbian, Islamo-fascist voyeur of mixed racial hertiage" whom he knew intimately enough to catalog their views on the "expansive power of the state".
However in Britain advocating equal rights for such a person can get you arrested:
via instapundit
This confuses a ratio for a fraction. Fractions don't even model ratios. If you don't believe me compare addition of fractions and ratios.
A fraction with zero denominator is undefined. Ratios most certainly can contain zeros in any term.
I WOULD TOTALLY BE IN FAVOR OF THIS! It sounds great!
This is a preposterous claim. Have you even read the text of the Fourteenth Amendment?
I can't imagine what you mean when you say the amendment wasn't intended to give African-Americans the right to vote. It creates a right to vote for all male citizens at least 21 years of age, regardless of race, and then it establishes a penalty for states that deny that right to any of those eligible.
Can you explain this claim? Did you mean the right to vote in STATE elections?
Really. you should read the text more carefully and the history of the 14th amendment before making such claims, especially so extravagantly stated.
Nowhere does the text guarantee the right to vote. Indeed, it explictly contemplates that some citizens might be denied that right.
The original version of 14th amendment was designed to give suffrage. When the watered down version was substituted that would not guarantee suffrage, many of those who favored African-American suffrage opposed it as a "total surrender" and "disgraceful to the nation." Some, like Wendell Phillips, opposed the 14th amendment b/c of its failure to provide suffrage.
The simple answer is that the 15th Amendment was designed to provide suffrage, b/c the 14th amendment failed to do so.
The ins and outs of this are described in detail in Andrew Kull's prize-winning history, The Color-Blind Constitution (Harvard Press, 1992), pp. 53-87.
One of the crucial moves was deleting the 14th amendment's suffrage provision, a move that Stevens explained:
So the radical Republicans backed down and decided to revise the 14th amendment they had proposed so it would not immediately convey the right to vote.