The Financial Times Interviews Russian President-elect Dmitry Medvedev who Plans to Strengthen the Rule of Law and the Independence of the Courts

The Moscow Times carried an AP story at Medvedev Sits Down With FT which indicates that President-elect Dmitry Medvedev of Russia plans to strengthen the rule of law and the independence of the courts.

We found a more extensive presentation of Medvedev’s interview with the Financial Times at the Voice of America article by Peter Fedynsky, Medvedev Calls for Rule of Law in Russia, where Fedynsky writes:

Dmitry Medvedev told the Financial Times the challenge facing Russia is to translate its recent economic success into social programs, including housing, healthcare, and education….

He notes that President Putin’s decision to step aside is unprecedented for a Russian leader, but consistent with the constitution.

Mr. Medvedev says Mr. Putin’s move means that Russia is at last developing a tradition of respecting all constitutional and other legal procedures.

Take a look at the full transcript of the interview at the Financial Times, which covers inter alia politics, economics, the media, state monopolies, nuclear weapons, social justice, international relations, consumerism, corruption, democracy and the law. The interview is brilliant.

To quote Medvedev directly on this topic from the Financial Times interview:

[FT Financial Times]: You are a lawyer, a very experienced lawyer so I would like to ask what concrete steps you will take to strengthen the rule of law in Russia?

[Dmitry Medvedev}: I really am a lawyer, perhaps to a greater degree than is necessary. You could say I am a lawyer down to my bones. But this also adds certain advantages.

“I think that we should move in three directions. [1] One direction is the assertion of the supremacy of the law in our society…. [2] [W]e need to make sure that every citizen understands not only the necessity and desirability of observing the law but also understands that without such a relation to the law there cannot be a normal development of our state or our society…. [3] And finally, a third very important thing connected to the legal system and the implementation of laws in our country is an active and effective court system.

Extremely interesting are also Medvedev’s statements about how Russia plans to stop corruption among its ranks, under the motto that corruption in the future – reading between the lines – may cost violators their old age and pension rights. Now there is an effective incentive viz. deterrent to keep people honest, on both sides of any tempting bribe action. To cut down on corruption, you make the price for being caught very high, much higher than most people are willing to risk. It is a simple and clearly workable solution.

Medvedev states that a three-pronged approach will be used to reduce corruption:

1) amendments to the criminal law will be made,
2) counter-corruption stimuli will be required (inter alia, such as we referred to above), and
3) a modern perception of law will be formed among the citizenry.

To really get a good idea about the direction that Russia is heading from Russia’s global and national viewpoint, a full read of this Financial Times interview is highly recommended by LawPundit.

The Qatar Doha Debates at BBC World Highlight World Political Issues in an Arabic Setting : The Next Debate is April 1, 2008

One very interesting and highly viewed Middle East forum (estimated audience up to now is about 300 million, but not well known in the United States, as far as we can tell) is found at The Doha Debates from Qatar which are transmitted via BBC World and sponsored by the Qatar Foundation. Videos of the debates are available for free online.

As written at the Doha Debates website online:

For the past three years, the Doha Debates have been providing a platform for serious discussion of the hottest issues in the Arab and Islamic worlds, striving to be both controversial and informative. They have gained a huge international following through their broadcast on BBC World – the BBC’s international television channel.

Selected topics are debated and the audience votes for or against one side or the other of a given question. The debate participants are selectively chosen, and often represent well-known organizations and their viewpoints, for or against the Doha Debate topic. The audience is mixed.

The last Doha Debate, for example, was held on March 3rd, 2008 and broadcast by BBC World on March 8 and March 9, 2008. The topic was:

This House believes that Muslims are failing to combat extremism” and the vote result was that “The motion was passed“.

The next upcoming debate on April 1, 2008 is:

This House believes the Palestinians risk becoming their own worst enemy.

Also that is a very controversial topic.

See a video of the last debate here.

Arbitral Standards of Review in Hall Street v. Mattel : US Supreme Court Sets Clear Standard : Statutory Grounds Exclusive for FAA Judicial Review

Via the Disputing blog, which we have added to our blogroll, we were led to this week’s United States Supreme Court arbitration law decision in Hall Street v. Mattel (Hall Street Associates v. Mattel, Inc., ___ U.S. ___ (2008) (Cause No. 06-989)):

Justice Souter wasted no time in stating in the first paragraph of his majority opinion:

The Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq., provides for expedited judicial review to confirm, vacate, or modify arbitration awards. §§9–11 (2000 ed.and Supp. V). The question here is whether statutory grounds for prompt vacatur and modification may be supplemented by contract. We hold that the statutory grounds are exclusive.

OK. That’s clear. Gee, does that exist in law?

European Digital Rights (EDRI) Defends Civil Rights in the Information Society in Europe

European Digital Rights (EDRI) is an organization in Europe which defends civil rights in the “information society” in Europe. As written at their website:

European Digital Rights was founded in June 2002. Currently 28 privacy and civil rights organisations have EDRI membership. They are based or have offices in 17 different countries in Europe….

Statutory membership is restricted to not-for-profit, non-governmental organisations whose goals include the defence and promotion of civil rights in the field of information- and communication technology.

EDRI produces EDRI-gram, a bi-weekly newsletter about digital civil rights in Europe.

Subscribe here to EDRI-gram.

European Union (EU) Establishes a New Procedure in the Area of Freedom Security and Justice : The Urgent Preliminary Ruling Procedure : March 2008

The Court of Justice of the European Communities, the Curia in Luxembourg, has issued a press release in which it outlines the completely new Urgent Preliminary Ruling Procedure which started application on March 1, 2008 as a European Union procedure in the area of freedom, security and justice:

The Treaty of Amsterdam on the European Union (EU) which came into force on 1 May 1999 states that the EU:

  • must be maintained and developed as an area of freedom, security and justice;
  • (an area) in which the free movement of persons is assured;
  • in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”

This area now covers:

  • Free movement of persons
  • Visa policy
  • EU external borders policy
  • Schengen area
  • Immigration
  • Asylum
  • Judicial cooperation in civil and criminal matters
  • Drugs policy coordination
  • EU citizenship
  • Data protection
  • Fundamental rights
  • Racism and xenophobia
  • Police and customs cooperation
  • Crime prevention
  • Fight against organised crime
  • External relations
  • Enlargement from a justice and home affairs perspective

Since the normal preliminary ruling procedure on such cases takes on average a year and a half, the Court of Justice, at the urging of the Council, proposed the adoption of the Urgent Preliminary Ruling Procedure in order to expedite urgent cases. As the Court of Justice writes:

This procedure is applicable as from 1 March 2008 and should enable the Court to deal far more quickly with the most sensitive issues relating to the area of freedom, security and justice, such as those which may arise, for example, in certain situations where a person is deprived of his liberty and the answer to the question raised is decisive as to the assessment of the legal situation of the person detained or deprived of his liberty, or, in proceedings concerning parental authority or custody of children, where the jurisdiction under Community law of the court hearing the case depends on the answer to the question referred for a preliminary ruling.

Hat tip to EU Law Blog, where there is more discussion of this development in detail, including a supplemental information note.

Summer Vacation 2008 : Try the Kiel Week (Kieler Woche) June 21-29 , 2008 : Biggest Summer Festival in Northern Europe : Sailing Sports and Much More

Looking for something different this year for your summer vacation?

Take a look at our blog Kiel & Kieler for more information relating to
the Kiel Week (Kieler Woche),
Northern Europe’s biggest summer festival.
It annually attracts over 3 million visitors from more than 70 nations.

Money Can Buy Happiness if You Give To Others : The Joyful Side of Philanthropy

An article at Yahoo Health by Amanda Gardner titled Give and Be Happy reports on a study which indicates that:

Money can buy happiness, at least when you spend it on others.

The reason, writes Gardener, is that “pro-social” giving enhances the community:

“Reaching out and doing things for other people allows you to kind of create a community,” said Dr. Alan Manevitz, a clinical psychiatrist at New York-Presbyterian Hospital/Weill Cornell Medical Center in New York City. “Social networks, we know, make people happier. It’s all about creating social networks and community ties and having a sense of self that you feel is worthwhile so money therefore can be used in service of that.”

And money is just one resource that can be used to that end, Dunn said. “All kinds of resources may be beneficial for our well-being,” she added.

This explains why philanthropy is so popular. Not only is the philanthropist doing a good deed, but it also makes the donor happier. Read the entire article here.

Obama Speech on Race Relations and His Vision for "A More Perfect Union"

Rergardless of your political persuasion, we would highly recommend your viewing this video speech by Barack Obama on race relations and his vision of a “A More Perfect Union”.

In our view, it is also important for other nations, not just America, to hear that speech, because it goes to the core of many of the world’s most serious problems, also religious problems, which in our view are – in their foundation – racial problems, pitting various racial groups against each other. Here is the Obama video (or see the video with text below it – faster when read):

The House of Lords at Lords of the Blog are Online Starting Today March 17, 2008

You have to hand it to the highly traditional House of Lords and their new experimental and collaborative (nine) Lords of the Blog, a pilot project being managed by the Hansard Society.

Lords of the Blog went online March 17, 2008, confirming that blogging is no longer an avantgarde avocation but has truly entered the professional mainstream bigtime. It is also quite a kudo to WordPress, whose blog format K2 the Lords are using.

In true English style the Lords do not storm the blogosphere with a frumpy presentation that one might otherwise have expected, but begin their experimental contact to the public with a clean, modern face and a great deal of humour, also facing head-on such topics as “Lords reform”.

This is definitely a very positive addition to the blogging world and to the world in general.

The RSS Feed is

Whatever Happened to the House of Lords? A Supreme Court of the United Kingdom will take up work Starting in October 2009

Time marches on, and there is in fact some visible modernity in law after all, even in a land as rich in tradition and legal glory as the United Kingdom.

Middlesex Guildhall
Future home of the Supreme Court of the United Kingdom

The Ministry of Justice of the UK informs us about the essentials:

The introduction of a Supreme Court for the United Kingdom will provide greater clarity in our constitutional arrangements by further separating the judiciary from the legislature. It will assume the jurisdiction of the current Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council.

The court will be an independent institution, presided over by independently appointed law lords. It will be housed in the historic Middlesex Guildhall on London’s Parliament Square – opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury – a fitting location for the apex of the justice system. The Guildhall is being renovated for use as a Supreme Court and is due to open at the start of the legal year in October 2009.

A booklet has been produced providing more information about the Supreme Court, including some images of proposed artwork (which has not yet been submitted for planning consent). If you would like to receive a complimentary copy (or copies), or would like any further information about the programme, please contact us.

We quote from the Wikipedia and recommend reading there for more details such as these:

The Supreme Court of the United Kingdom was established in law by Part III of the Constitutional Reform Act 2005. The Lord Chancellor has announced that it will start work in October 2009 once its new premises are ready. [link added by LawPundit]

It will take over the Law Lords’ judicial functions in the House of Lords and some functions in the Judicial committee of the Privy Council. The Supreme Court will be the final court of appeal in all matters under English law, Welsh law (to the extent that the Welsh Assembly makes laws for Wales that differ from those in England) and Northern Irish law.

It will not have authority over criminal cases in Scotland, where the High Court of Justiciary will remain the supreme court. However, it will hear appeals from the Court of Session, just as the House of Lords does today.

It may hear cases of dispute between the three devolved governments – the Northern Ireland Executive, the Scottish Government and the Welsh Assembly Government – and the UK government, taking over this function from the Judicial Committee of the Privy Council.“

The UK Department for Constitutional Affairs provides comprehensive background material concerning this rather remarkable development in the UK judiciary and legal system.

Remarkable is the role played by the doctrine of separation of powers:

The Government’s plans to create the Supreme Court, announced in June 2003, were controversial and were brought forward with little consultation. During 2004, a select committee of the House of Lords scrutinised the arguments for and against setting up a new court.

The main argument in favour of change was that there should be a separation between the House of Lords’ role as a legislature and its role as a court. This, it was claimed, confused people and offended constitutional principles of separation of powers and independence of the judiciary. The main argument against the reforms was that the current arrangements worked well and provided good value for money.

Latvia and Estonia Follow the Czech Republic in Signing Bilateral Visa Exemption Agreements for Travel of their Citizens to the United States

At we read:

Following the Czech Republic’s example, Latvia and Estonia have now also signed individual agreements with the United States which exempt their citizens from visa requirements for travel to the US. The EU is trying to negotiate a common visa agreement for all member states. What repercussions will these independent initiatives have on Europe’s common foreign and security policy?“.

Graphic linked from euro|topics

Links are found there to full articles from the respective countries:

Latvia – at V-Diena, Aivars Ozoliņš: Divpusēja prioritāte (In Latvian)

Estonia – at Postimees, Erkki Bahovski: kõik enda eest (in Estonian)

In Germany – we refer to Martin Winter at the Sueddeutsche Zeitung (Germany – Süddeutsche Zeitung | Thursday, March 13, 2008, Eastern European bilateral agreements in visa dispute):

“That the Czech Republic, Estonia and Latvia are negotiating bilateral visa-waiver agreements with the US, as is currently the case, is annoying, but no major drama,” Martin Winter writes.

The euro|topics Press Review in English, German and French looks like a good source of European news and we have added it to our blog links.

Harry Potter and the Cyclopians : A New Chapter by J.K. Rowling? The Case of the Century in Copyright and Trademark Law?

At fault for the title of this posting is our manticore.

One of the great intellectual property law cases of our time, a dramatic work with a platinum cast, has been underway for some time now in the trademark and copyright infringement action by Warner Bros. and J.K. Rowling against RDR Books, makers of an allegedly unauthorized Harry Potter Encyclopedia, who we here thus dub the Cyclopians.

Joe Nocera at the New York Times in A Tight Grip Can Choke Creativity wrote on February 9, 2008:

On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books. Mr. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Mr. Falzone and the other lawyers at the Fair Use Project are siding with the defendant, RDR Books, a small book publisher based in Muskegon, Mich. As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.

The Leaky Cauldron informs us that a trial date has now been set.

The Guardian writes on March 11, 2008:

On one side: global-celebrity author JK Rowling. On the other: an amateur fan site devoted to the world’s favourite boy wizard. At stake: the soul of Harry Potter.

We saw a vision of Hedwig bringing in the last issues of US Reports by mail the other day to deal with a case of mysterious first impression?
WHOO can be sure?

As The Guardian writes, all wizards of the legal powers convene:

[O]n March 24 when a New York court considers the injunction that Rowling and Warner Brothers have taken out against a small, Michigan-based publisher, RDR Books, to prevent publication of the Harry Potter Lexicon, an A-Z guide to all things Hogwarts. It could also be a landmark case, because what is at stake is not just an author’s right to control the publication of secondary works but also the right to publish in book form information that has been previously available on the web.

Keep your dragons at bay!

What does the law of superheros tell us about the rights of mere mortals?

Hat tip to CaryGEE.

Update with some links about the case found online:

From Stanford’s Fair Use Project
Nice posting and lots of comments at Crooked Timber.
P2PNet and P2PNet-again
The Online Harry Potter Lexicon of the Challenged Book
The J.K. Rowling Official Site praising the online website
RDR Books
Steve Vander Ark at the UrbanWire
Library Journal where Rowling says the book is a “Harry Potter rip-off”
Beattie’s Book Blog

RDR Books writes:


New York Federal District Court Judge Robert Patterson has scheduled a trial for March 24, 25 and 26 in the matter of Warner Bros. Entertainment and J.K. Rowling v. RDR Books. The judge consolidated a previously scheduled injunction hearing with the trial. The plaintiffs want to block publication of librarian Steve Vander Ark’s Harry Potter Lexicon. Here is the RDR Books statement on the case:

In this action, a distinguished and tremendously successful novelist demands the suppression of a reference guide to her works. J.K. Rowling, author of the Harry Potter books, asserts that this reference guide infringes both her copyright in the seven Potter novels and her right to publish, at some unidentified point in the future, a reference guide of her own. In support of her position she appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction.

This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements: third party reference guides to fiction, which for centuries have helped readers better access, understand and enjoy literary works. By extension, it would threaten not just reference guides, but encyclopedias, glossaries, indexes, and other tools that provide useful information about copyrighted works. Ms. Rowling’s intellectual property rights simply do not extend so far and, even if they did, she has not shown that the publication of this reference guide poses a sufficient threat of irreparable harm to justify an injunction. Her preliminary injunction motion should be denied.

Read RDR Books’ Opposition Brief filed by our attorneys David Hammer, Lizbeth Hasse, Anthony Falzone, Julie Ahrens and Robert Handelsman. Also filed was expert witness testimony on the Harry Potter Lexicon by Professor Janet Sorenson of the English faculty at the University of California at Berkeley. Have a look at this exhibit, a thank you note from Scholastic Publication Potterologist and editor Cheryl Klein to Steve Vander Ark. All available background information on the Harry Potter Lexicon lawsuit is available here.

Media contacts for the Harry Potter Lexicon Case

A Private Equity Joint Bid ("Club Deal") for Acquisition of a Target Company held Not per se Illegal under the Sherman Act

We just received in the mail a Paul|Weiss article about a private equity antitrust class action collusion suit (Pennsylvania Avenue Funds v. Edward Borey, et al., No. C06-1737RAJ, W.D. Wa.) which was dismissed on February 21, 2008 by Judge Richard Jones in what appears to be a case of first impression, holding that a joint bid by private equity firms (a so-called “club deal”) is legal under the circumstances of that case, so we pass on more links relating to that decision: a WSJ Deal Journal article by Peter Lattman, a Linklaters Technical Bulletin, the HRO Antitrust Alert, the DLA Piper Antitrust Alert and the Truth on the Market blog, which discuss the decision.

The DLA Piper summary of the decision by Paolo Morante writes:

After initially submitting independent bids, two of the private equity bidders, Vector Capital (Vector) and Francisco Partners (FP), remained as the only bidders in the running. According to the complaint, brought on behalf of a putative class of WatchGuard shareholders, in the final stages of the bid process Vector and FP agreed that Vector would drop its bid, allowing FP to purchase WatchGuard at a reduced price, and then that Vector would fund half of FP’s acquisition in exchange for a 50 percent interest in WatchGuard after the merger. The plaintiffs claimed, among other things, that the agreement between Vector and FP restrained competition in violation Section 1 of the Sherman Act.

Linklaters writes:

Last week, a US federal district court became the first to conclude that an agreement by private equity funds to submit a joint takeover bid does not violate Section 1 of the Sherman Antitrust Act. If followed by other US courts, the decision may have important implications for private equity funds considering potential joint-bidding arrangements. See Pennsylvania Avenue Funds v. Borey, No. C06-1737 (W.D. Wash.).

Paul|Weiss writes:

While this result is promising for private equity firms, it is uncertain whether other courts will uphold this decision or apply the same reasoning as the district court did in this case. There is, however, little doubt that these issues will be revisited in other antitrust class actions against private equity firms.

McDermott, Will & Emery write:

The decision is controversial and may well turn out to be overruled on appeal or distinguished by courts that address joint bids in the future. As such, companies should not take undue comfort in this lone district court opinion. This case is of interest, however, because it is the first opinion in several cases that have been filed challenging joint bids, or “club deals,” in corporate acquisitions.

Holme, Roberts & Owen LLP write:

The decision, although one by only a single federal district court in the Western District of Washington, is nonetheless an important ruling for the buyout industry which has been targeted with antitrust suits around the country after the Department of Justice opened an inquiry into possible anticompetitive conduct related to club deals in 2006.

Truth on the Market writes:

Private equity deals have been the subject of a good deal of speculation in antitrust circles in the past several years as bidding arrangements are the subject of pending litigation and have come under the scrutiny of the Department of Justice. It’s just one decision, but this one seems pretty dismal for plaintiffs in these private equity collusion suits.

Obama Shows He Can Play Hardball

Clinton started it, and Obama is finishing it, giving due notice to his opponents, also when he is President, that he can play hardball.

1. Hillary Clinton can forget about getting many delegates in Mississippi as the Obama campaign launches a radio ad using Hillary’s comments badmouthing Mississippi. Daily Kos describes this one perfectly as “one very tough ad”. Obama is surely not happy having to use this kind of material, but he has no choice but to respond to the constant stream of unjustified insults from the Clinton campaign, and people have been waiting to see if Obama has a tough side. The answer is, a very tough side, which, of course, you also need as President.

2. The 8-year old sleeping girl in the Clinton 3 a.m. political ad recognized herself in film footage shot nearly 10 years ago for a railroad ad, which the Clinton campaign purchased from Getty Images. So there you are, Clinton supporters, that is where your campaign donations are going. That same girl is now a soon-to-be 18-year old who plans to vote for Obama. See the story here. It is hard to believe that the Clinton campaign would buy this kind of footage featuring people they do not even know. What a disrespect to the young child sleeping in that ad. Incredible.

3. The Clintons are pictured in a photo from their earlier days with fundraiser Tony Rezko, who was indicted by a grand jury for allegedly giving campaign contributions and monies to politicians in exchange for favors. The Clinton campaign has tried by the inappropriate logic of guilt by associaton to tie to Obama to Rezko’s allegedly illegal dealings, although there is no evidence of any wrongdoing by Obama whatsoever, nor has any prosecutor alleged any wrongdoing. Quite the contrary, Rezko contributed to the Democrats during Bill Clinton’s presidency, and the Clintons were themselves involved in their own Whitewater scandal. It is hard to understand how Hillary Clinton can be treating Rezko as if he were already convicted. Whatever happened to the presumption of innocence in criminal law?

Was the Presidential Eligibility Clause of the Constitution of the United States Preempted by the Fifth & Fourteenth Amendments to that Constitution?

The Constitution of the United States, as the oldest Federal Constitution in existence, is one of the great documents of mankind, and its adoption as the foundation of American government is a significant landmark in the development of the law of nations, in the formulation of the extent of powers of just governments, and in the protection of the rights of citizens.

Page 1 of the U.S. Constitution (from The Charters of Freedom)

As stated by Albert P. Blaustein in The U.S. Constitution : America’s Most Important Export, the U.S. Constitution has had a worldwide impact of immense scope and breadth:

THE U.S. CONSTITUTION is America’s most important export. From its very inception, its influence has been felt throughout the world. And even where that influence has not resulted in democracy and freedom, it has still brought hope—in President Abraham Lincoln’s words—of government of, by, and for the people.

The story of that influence is a tale worth telling. America’s Founding Fathers fashioned a constitution that was a unique breakthrough in the continuing struggle for human freedom. They believed in the principle of constitutional government, which they hoped might have relevance beyond America. Thomas Jefferson looked upon the Constitution as a standing monument and a permanent example for other peoples. “It is impossible,” he wrote, “not to [sense] that we are acting for all mankind.” President John Adams was convinced that American political ideas would profoundly affect other countries. Alexander Hamilton thought that it had been reserved to the American people to decide the question whether societies themselves are really capable of establishing good government. James Madison, president and contributor to the Federalist Papers, believed that posterity would be indebted to the Founding Fathers for their political achievement and for the sound governing principles provided for in the U.S. Constitution….

Since that seventeenth day of September 1787, a one-document constitution has been deemed an essential characteristic of nationhood. Today, of the 192 independent nations of the world, all but a very few have such a constitution or are committed to having one.” [emphasis added]

The importance of the Constitution of the United States in American and world affairs can thus not be disputed, and yet, in spite of the fact that this remarkable document spans only four handwritten pages, there is still considerable division of opinion about just what some of its provisions actually mean.

Among Constitutional Law scholars, two primary competing schools of Constitutional interpretation have dominated the modern era:
on the one hand, those who think that Constitutional interpretation should be based on the original meaning of the document, a doctrine called Originalism; and,
on the other hand, those who think that the U.S. Constitution is a “Living Constitution” which evolves in a dynamic process in response to changing times, and which should be so interpreted.

Although such an artificial dichotomy of only two competing viewpoints is an oversimplification of the broader discussion on this issue, that dichotomy has been of assistance to legal scholars and laymen in the visualization and argumentation of the issues involved. Nevertheless, one would be hard pressed to find a pure adherent of either doctrine of interpretation, since neither is 100% supportable.

We do not intend here to repeat the many arguments raised on either side of the issue or in the terrain in between. Whoever is interested in that discussion can start with the links in our previous posting to the exchange of views between Jack M. Balkin and David A. Strauss.

What interests us to begin with here is the paramount fact that the original United States Constitution was written in only FOUR PAGES, and even with the amendments, runs only ca. EIGHTEEN PAGES. Compare that to The Lisbon Treaty of 13 December 2007 in the European Union which runs 287 pages and is intended to replace the ill-fated European Constitution of 349 pages which was not ratified as required by the EU Member States.

The difference in the length of these constitutions provides us with a great deal of information about how the Constitution of the United States should be interpreted, because there is a substantial difference in principle AND intent between fundamental, basic laws at a high level of generality and far more specific laws at a low level of generality.

General laws state and embody principles of law and permit a much wider range of interpretation, whereas specific laws apply those very same principles to a specific fact situation and permit a much narrower range of interpretation..

As opposed to the United Kingdom and Ireland, where the common law prevails – a system of law which served as the model for the legal system of the United States, the systems of law in continental Europe are based primarily on the statutory Justinian Code (Corpus Juris Civilis, The Body of Civil Law), which is a body of codified law or statutes, similar to the voluminous federal laws in the United States Code (50 volumes) or the voluminous State law in the statutory State codes in the United States. For example, West’s® Annotated California Codes (Annotated Statute & Code Series) is comprised of more than 250 hardbound volumes.

Obviously, there is a clear, recognizable and understandable difference between such statutory codifications of law and the Constitution of the United States, not only as to the interpretation of the respective general or specific laws, but also as to their execution.

The founders of the United States could also have written a 300-page Constitution, full of specific provisions in great detail on the extent and limitation of the powers of the government that was being established, but the founders did not do so. Rather, they chose to create a minimalistic 4-page document setting out the grand plan that they envisioned for a great nation, with the details to be worked out over time by the people of that nation in the tradition of the common law to which they were accustomed.

As far as trying to use divination to go beyond that general purpose and to try to assign specific “original” meanings to the clauses of the Constitution, we have great doubt.

In our opinion, a work worth reading on this topic is Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution by Calvin H. Johnson, Professor of Law at the University of Texas Law School. Cal and I were classmates at Stanford Law School, so that I was particularly interested to see what he had to say on this topic.

Cal writes:

All words are deeds, including the Constitution, and they are written to accomplish something. What they are trying to accomplish is the core meaning….

The ratification debates are … inevitably cacophonous because of their structure. After Philadelphia, there was never again a single room in which every one had even to pretend to reach a single meaning for the Constitution. In Philadelphia, elected delegates argued from May to September to reach a single draft. They bickered over language, they delegated hard issues to one committee after another and at the end they signed a single draft. The single room, long discussions and single set of words may not mean that there was only a single understanding, common to all, but it does hedge in the understandings so they are collected around a single document with a shared meaning. By contrast, the ratification debate extended along the entire seaboard with a population of 3 million. There was, as Joseph Story said, “[n]o certainty either that different state conventions gave the same interpretation or that the same reasoning prevailed even within the majority of a single convention.”[1] The ratifiers who published their views had a slightly different understanding of the significance of the words, even when they debated the fixed language clause by clause. Readers in the debates commonly missed the point, or came up with interpretations that we do not find as matching the words, although that was what they understood to be the meaningful point. Once the document left Philadelphia, there was also no longer any mechanism to force a single understanding. It is not coherent to say that the Constitutional Federal Convention in Philadelphia misunderstood or made a mistake about the Constitution. What they understood is what the Constitution was. It is coherent to say that this or that ratifier, or even this or that state convention, made a mistake and misunderstood the Constitution

I do think the binding meaning is the Philadelphia meaning. I think Jefferson-Madison liked the ratifiers meaning because it allowed them to cherry pick, getting in some arguments about restrictions on the federal government that are definitely not text based. The Framers took out the old Articles of Confederation limitation that the Congress would have only the powers expressly delegated to it, because the limitation had proved to be disastrous to the Union and because they wanted the Federal passport although it was not enumerated. In the ratification debate they rewrote the text to put back in “expressly delegated.” If it is a written Constitution we are looking at, however, the non-Article V amendment should not stick. Whatever the binding meaning is, however, you need some language that keeps dictionary and binding meaning apart because the dictionary or abstract meaning does not always trump.

What that means in layman’s language is that although you had one final document, the United States Constitution, you had as many “specific” meanings to that Constitution as the number of persons who participated in its creation.

There was some general agreement on general principles at a broad level of generality. But anyone trying to apply an “original” meaning to the specifics of the Constitution finds little support in fact, nor should this surprise us, for the purpose of the Constitution was not to pass on some binding specific meanings to us, more than two centuries later, but rather to define a general set of principles of government which were to withstand the march of time.

The Presidential Eligibility clause is one example of this. It was a specific clause needed at that time, but hardly an eternally binding pronouncement on who could be President in the future.

The Yale Law Journal has picked up on this issue at its online Pocket Part companion, citing to
Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988) writing:

Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a “musty debate”: Is a person born abroad of American parents a “natural born Citizen” eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue.

What interests us there is her Footnote 11, where she writes:

11. U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United States, and , subject to the jurisdiction thereof, are Citizens of the United States and of the State wherein they reside.”)., .
The natural-born citizen clause and the naturalization powers clause come together in section one of the Fourteenth Amendment since the Amendment both distinguishes native-born and naturalized citizens (“born [in] or naturalized”) and equalizes them (both are guaranteed the same rights under the Amendment). See infra Section II-B.“[emphasis added]

Hence, no State should be able deny ANY citizen from running for the office of President of the United States, for all citizens have the same rights and there is no difference between them in the eyes of the law.

However, the 14th Amendment applies to the States and not to the Federal Government:

The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment. See U.S. Const. amend. V ….”

In other words, the same rule applies to the Federal Government through the 5th Amendment:

[I]n Bolling v. Sharpe 347 U.S. 497 (1954), the Supreme Court averred that it was absurd that the Constitution could deny the states the power to abridge equal protection of the laws, yet permit that power to the Congress. “[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive,” reasoned Chief Justice Earl Warren. The Court thus interpreted the Fifth Amendment’s due process clause to include an equal protection element but has continued to hold that there is a difference between due process and equal protection in its Fourteenth Amendment jurisprudence.

What this means in terms of the development of modern Constitutional Law and Human Rights is that the Presidential Eligibility requirements are no longer valid law. If “born citizens” and “naturalized citizens” are both guaranteed the same rights under the 5th and 14th Amendments to the Constitution of the United States, then it can not be that they have different rights as to their eligibility to be elected President of the United States, so that the original language of the Presidential Eligibility clause is clearly preempted by those same 5th and 14th Amendments to the U.S. Constitution.