Pardons in Mississippi: On the Role of the Supreme Court

In a 6-to-3 decision, the Mississippi Supreme Court ruled in 2012 that pardon procedures lay outside of its constitutional authority—that to interfere even in cases where those procedures were flouted would violate the separation of powers. Section 124 of Mississippi’s Constitution “gives pardon power exclusively to the governor, but also requires applicants to have their petitions for pardon ‘published for 30 days, in some newspaper in the county where the crime was committed.’”[1] This is constitutional language, and yet the Supreme Court refused to determine whether Haley Barbour had acted unconstitutionally in all but 22 of the 200 pardons he had granted in his last days in office. In other words, the Court’s function in interpreting the constitution is at odds with the principle wherein the three branches of the Mississippi government are separate—none being directed by any of the other two.

In his majority decision, Justice Jess Dickinson wrote, “While this court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline—as we have so many other courts before us—to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justifiable violation of a personal right.”[2] In a dissent, Chief Justice William Waller argued that the Constitution puts limits on the governor’s pardon power, and the court is obliged to make sure those limits are not crossed.  As those limits are set in the constitution rather than by statute, the Supreme Court as interpreter of the Constitution is justified—indeed even obligated—to determine whether an executive order violates the language and is thus unconstitutional.

If judicial review were subject to the separation of powers doctrine, then the Supreme Court of Mississippi could only assess the constitutionality of the judiciary’s decisions and protect the rights of individuals from governmental action—though even here such protection could be interpreted as being at the expense of the legislative or executive branch and thus violating the separation of power between the three branches. Furthermore, assuming that the chief executive of Mississippi might somehow police the constitutional limitations on himself puts him in a conflict of interest with respect to himself. A conflict of interest is also in play, by the way, in Haley Barbour pardoning prisoners who worked at the governor’s mansion.

To be sure, a conflict of interest also applies when a Court applies constitutional interpretation to itself. It would be advisable, therefore, for Mississippi to create a constitutional court whose role is only to interpret the Constitution. Such a court could thus apply constitutional scrutiny to other courts in Mississippi without so much of a conflict of interest (there still being some, the Constitutional Court being in the same branch).

In short, the referee should not do anything else with respect to the game, and none of the game rules should be off limits simply because it applies to one of the other players. To rely on the legislature to keep itself within constitutional bounds or likewise in the case of a joint figurehead and chief executive of a government does not take seriously the function of a constitution to keep a government within certain limits of power. To expect power to police itself is sheer folly.

1. Campbell Robertson, “Highest Court in Mississippi Upholds 9 Pardons,” The New York Times, March 9, 2012. 
2. Ibid.

A Rigid Refusal to Renegotiate: Blaming the Greeks

As Greek party leaders struggled to put together a government in May 2012 after a splintering election, a major (and contentious) issue was whether to demand a renegotiation of the bailout agreement. Alexis Tsipras, leader of the Coalition of the Radical Left known as Syriza (which made large gains in the election), was declaring the agreement null and void given the mandate implied by the gains made on the far right and left (both being opposed to the austerity program). Tsipras believed he “had changed the debate to the point that the formerly dominant parties that had signed the loan agreement were . . .  indicating they might agree to demand it be renegotiated.”[1] His statements were enough to prompt a firm Nein! from Angela Merkel in Berlin and a related “tightening of the screws” from the committee of the European Financial Stability Facility.

The full essay is at Essays on the E.U. Political Economy, available in print and as an ebook at Amazon.

1. Rachel Donadio and Niki Kitsantonis, “ContinuingLeadership Deadlock in Greece as Its Lenders Watch and Wait,” The New York Times, May 9, 2012.

The SPD in Germany: Holding the Euro Hostage

Because the so-called “fiscal pact” amendment that would strength the E.U.’s enforcement of state government deficits and debts involves a shift of more state sovereignty to the E.U. for the states that ratify the informal amendment, the ratification in Germany requires a two-thirds majority in both the Bundestag and the Bundesrat. The latter body represents the German regions, or Länder, which in Texas or California would be counties. Generally speaking, the process of European integration has involved a succession of shifts of governmental sovereignty both from county and state governments to the E.U. itself as a federal government that includes an executive branch, a parliament, a council or upper chamber, and a supreme court that has a supremacy clause.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Scott Walker’s Recall in Wisconsin: Mob Rule?

In early March, 2012, unions and conservative groups had already “turned Wisconsin’s battle over labor rights into a national, multimillion-dollar war.”[1] In 2011, the two sides had spent $44 million in it. The unions began an effort in that year to recall Scott Walker, the government’s figurehead and chief executive, and several senators in Wisconsin’s Senate “after they pushed through legislation restricting the collective-bargaining and organizing powers of workers belonging to government-employee unions.”[2] While this depiction is cogent—a battle over labor rights involving legislation restricting collective-bargaining rights for government employees—I contend that the assumed linkage between the battle and the recall is deeply flawed.

It is one thing to contend politically over labor rights, and it is quite another to recall a sitting head of state (and senators). To cut short the term of an elected official simply because he or she favored legislation that one opposes is to violate one of the main pillars of representative democracy. Specifically, terms of office exist to enable representatives to act or vote for what they believe is in the best interest of the people even if it is not favored by popular passions of the moment. In other words, removing an elected representative from office because he or she supported or voted for legislation that one opposes is to reduce representative democracy to whatever passion happens to be felt strongest by the mob.

There is a reason why Plato and Aristotle depict two kinds of democracy in their respective typologies of government. The good form of democracy is “rule by the many” while the bad is “mob rule.” Electing representatives and giving them a fixed term of office is a principal way in which “rule by the many” (as opposed to the one or the few) is protected from sliding into the decadent “mob rule.” Seized by an ideological and partisan fever, the pro-recall Wisconsinites have been blind to their own culpability in violating a basic tenet of representative democracy.

In other words, there is a reason why the U.S. constitution requires “high crimes and misdemeanors” rather than mere legislative or ideological disagreement for the impeachment and removal of office of a U.S. President. Were disagreement itself over a piece of legislation sufficient to remove a representative from office—even if as in Scott Walker’s case the office-holder had campaigned on the issue by taking the position in question—then elections themselves are relegated. “Elections have consequences” only holds if it is agreed that the winner is not justifiably removed from office as soon as he or she starts to act (lawfully) on the campaign promises. Even if the proposal or vote had not been something mentioned in the campaign, it is not sufficient to remove a representative simply out of disagreement with his or her proposal or vote. Besides eviscerating representative democracy itself, such a recall is utterly unfair to the particular officeholders.

Were I a Wisconsinite in 2011, I would have opposed the proposal to balance the budget by restricting collective bargaining rights. Besides there being other ways, the proposal seemed like a subterfuge for union-busting to me. Not being a citizen or even resident of Wisconsin, I was merely a bystander as the recall effort, or “battle over labor rights,” unfolded given the nature of federalism and the fact that Wisconsin, like France, is a semi-sovereign republic. Generally speaking, it is inappropriate that people and organizations outside of Wisconsin contributed so much money to intervene on a political matter that was properly for the citizens and residents of Wisconsin to decide. The over-reaching by outside vested interests only added to the conflation of the issue of a recall with that of union bargaining rights.

The question for Wisconsinites was whether Scott Walker and the senators abused their respective offices by signing and voting for a piece of legislation. As their respective offices include signing and voting on legislation, doing so cannot constitute abuse of office or criminal behavior. Otherwise, it would be penalize someone for doing what they are supposed to do. It is like shooting a bird for flying. “What the hell else should I have been doing?” such a bird might wonder in loud chirps while falling to earth. It is obvious that to shoot a bird simply for flying is not fair to the bird because it is designed to fly, and yet it was difficult for many Wisconsinites to grasp that sheer disagreement with the choices made by elected officials as per the design of their respective offices does not justify removing the officials as if they had acted improperly.

Looking in from the outside, I do not think much of the strategy Scott Walker and the Republican legislators used to balance Wisconsin’s budget (though I give them credit for balancing it). Even so, it would have been highly unfair to them, were I—assuming I were a Wisconsinite—to have urged Walker’s ouster simply because he signed a law he had campaigned on (the same holds even if he had not done so). I believe in representative democracy as against mob rule more than I cherish my own ideology.

It is a pity that there were not more adults in Madison and Milwaukee in 2011. As John Adams and Thomas Jefferson wrote in their letters to each other, an educated and virtuous citizenry is vital to a viable republic; otherwise, it is apt to slide into mob rule where simply being disliked is enough to mean the end of a person. There is a reason why the delegates to the U.S. constitutional convention in 1787 distrusted partisanship. I do not believe that ideological disagreement ought to have so much sway over representative democracy itself as it has in Wisconsin.

“Elections have consequences” and “rule of law” may seem like strong pillars in Western civilization, but under the weight of vice they can quickly become woefully pliable, given the self-serving denial that is possible in human nature. Perhaps the struggle here boils down to the necessity that is in law as against the vicissitude that is in human nature. Do we respect law more than our own likes and dislikes? That is to say: as moderns, are we as civilized as we presume we are? Can presumptuous children self-govern as a people simply because they claim to be mature? These are questions for all of us who live in republics to ponder and reflect on, for they are being played out in our own day and not necessarily on some distant galaxy.

1. Alicia Mundy, “Wisconsin Recall Realigns Campaign Spending,” The Wall Street Journal, March 6, 2012.
2. Ibid.

E.U. Staving Off War: Statehood for Serbia

On March 1, 2012 when Serbia formally became a candidate for statehood in the European Union, it had been over 50 years since a state was added to the U.S. So from an American standpoint, watching the E.U. expand “in real time” from “across the pond” might be like a person in our solar system watching the unfolding of a new solar system light-years away and thinking, “So that is how it must have looked when it happened here.” Of course, the accession of additional states in the E.U. reflects the distinct time and culture of twentieth and twenty-first century Europe rather than of the world in the late eighteenth century. Even so, certain commonalities can be discerned.

The complete essay is at Essays on Two Federal Empires.