Court v. Congress
If the US Constitution is to be protected against the threat to the integrity of the judiciary posed by the Bush administration, as correctly perceived by Bruce Ackerman (LRB, 17 February), constitutional conservatives of both parties will have to combine to make use of the mechanisms available within the Constitution itself. First, it is essential to recognise that there is no constitutional law requiring the Supreme Court to exercise the power of judicial review or protecting it in exercising that power. The Constitution contains nothing to prevent Congress from repassing legislation that the court has vetoed. In fact Congress has done so, twice. In Dred Scott v. Sandford (1857), the court denied that negroes enjoyed civil rights under the Constitution and asserted that Congress could not exclude slavery from the territories prior to their admission to the Union as states. But in an act of 1862 Congress ignored the Dred Scott decision and banned slavery in the future territories; while in the Civil Rights Act of 1866 Congress again overrode the court by extending civil rights on lines later confirmed by the 14th Amendment.
Abraham Lincoln, confronted with the problem in a debate with Senator Stephen Douglas in 1858, said that he would accept the Supreme Court’s decision in the specific case to which it applied, but would not feel obliged to accept it as permanent constitutional law. He also said that if he were a member of Congress he would work to get the Dred Scott decision reversed. (He slightly modified this position in his first inaugural address.) Lincoln expressed respect for the Supreme Court but observed that giving it the power to make permanent policy on matters affecting the whole people would deprive the people of self-rule.
If the right-wing agenda outlined by Ackerman becomes the settled policy of the Supreme Court, which has no legislative mandate, Congress, which is the representative arm of the Constitution, has the right to oppose it. Under the present political dispensation, such opposition is unlikely. But the mid-term elections are less than two years away. In the event of a deadlock between the two branches, Congress has the constitutional power under Article III Section 3 to curtail the jurisdiction of the court.
Bruce Ackerman says that in 1987, notwithstanding Ronald Reagan’s ‘landslide re-election’ in 1984, the Republican right wing was unable to get Robert Bork’s appointment to the Supreme Court passed by the Senate. He attributes this to the ‘breadth of popular support for the Warren-Burger court interpretation of constitutional rights’.
The chief obstacle to Bork’s appointment was that in the 1986 elections, the Republicans were ousted as the majority party in the Senate. With the ongoing Iran-Contra scandal, Reagan was hardly in a strong position to push Bork’s controversial nomination. On the other hand, it is quite likely that if Reagan had nominated Bork in place of either Scalia (in 1985) or O’Connor (in 1981), his appointment would have been passed by a Republican-controlled Senate.
Why now? Why then?
To read David Gilmour’s piece (LRB, 3 March) is to enter a familiar representation of empire in which Forster and Orwell have the last word. There is a story to be told about the British families who devoted their lives to the myth of empire, but you don’t need to be steeped in feminism, cultural studies and the post-colonialism Gilmour scorns to think this story should make more than a passing reference to the people who were the object of the civilising mission. Gilmour’s justification for Western brutality and economic exploitation has its echo now in Afghanistan and Iraq: white men saving brown women from brown men. A more pertinent analysis would ask why practices that identify women with culture in a restrictive way emerge so strongly at particular points in history. Uma Narayan, among others, has documented how sati was revived largely as a symbol of nationalist opposition to colonial rule. It might be helpful to look at practices specific to the West as cultural in the same way: one could start with bulimia and cosmetic surgery.
Camus and the Pieds Noirs
In his otherwise admirable essay on Camus and Sartre, Jonathan Rée writes that ‘following a series of battles in Algeria’, Camus ‘came to the conclusion that the French state must intervene to restore order and protect both the Arab population and the French settlers’ (LRB, 20 January). These battles, sparked in early May 1945 by the killing of scores of French settlers in pro-independence rallies, were indeed ‘savage’, but the casualties were overwhelmingly Algerian, the perpetrators overwhelmingly French soldiers and pieds noirs. The restoration of order which Camus defended took the lives of between 5000 and 45,000 Algerians, most of them civilians. Needless to say, these ‘Arab hunts’ were not intended to ‘protect both the Arab population and the French settlers’. Nor was Camus’s position on the Algerian war of independence that erupted in 1954 one of ‘silent perplexity’. Despite his objections to torture by the French army (which he preferred to express in private communications with French officials), Camus rejected Algerian independence, insisting that the Algerian nation was a myth fostered by Nasser and the Soviet Union, and opposed negotiations with the FLN – a position that ultimately placed him in the pied noir camp.
May I add two comments to the correspondence about Nicola Lacey’s biography of H.L.A. Hart (Letters, 17 February)? Although Hart called The Concept of Law an essay in descriptive sociology, it is, as he seems subsequently to have accepted, not strictly descriptive nor very much of a sociology. But in arguing that judicial decisions involve the application to second-order rules of primary rules, he was making a case, by which many of his readers were persuaded, to the effect that judicial decisions, whatever exactly they may be, are neither the execution of sovereign commands nor exercises in moral philosophy. The puzzle is that, as Nicola Lacey documents, he owned a heavily annotated copy of the English translation of Max Weber’s sociology of law, but claimed that it was by Peter Winch’s book The Idea of a Social Science that he was influenced in his account of the ‘internal aspect of rules’. His references to Winch, however, are not to either of the two places where Winch cites what he calls Weber’s ‘important’ paper on Rudolf Stammler in which the concept of ‘following a rule’ is discussed in detail.
On Hart’s own view of the book, I offer a reminiscence which may be of marginal relevance. I attended one of the Oxford seminars to which Nicola Lacey refers, on John Rawls’s A Theory of Justice, of which I had been the then anonymous front-page reviewer in the Times Literary Supplement. I was too much in awe of Hart to open my mouth in the discussion, which he conducted with the combination of courtesy and lucidity for which he was celebrated. But at dinner after the seminar, where he seated me next to him, he surprised me by saying that he admired the second part of Rawls’s book more than the first. He meant, as I understood him, that Rawls’s device of the ‘original position’ doesn’t quite work, but Rawls’s vision of the kind of society he would himself choose from behind a ‘veil of ignorance’ is intuitively appealing. Might there be a parallel to what was by then his own attitude to The Concept of Law?
Trinity College, Cambridge
Earls, Lords and All Such
The Mau Mau practice of obliging its activists to swear secret oaths of allegiance, referred to by Bernard Porter (LRB, 3 March), was by no means confined to Kenya. The phenomenon was common to many rebel organisations throughout the history of the British Empire, and deliberately mirrored a long-established British tradition. Instead of swearing loyalty to the British monarch on the Bible, a procedure normally required of all colonial government officials of whatever grade, the rebels would swear loyalty to their cause and to each other.
In Ireland during the last decades of the 18th century, the peasant supporters of the Whiteboys, a secret anti-settler society well-entrenched among the rural Catholic population, were required to swear loyalty to Queen Sive, their leader, and threatened with punishment if they refused to obey her commands. Taking the oath was designed to break the relationship with the colonial power and to prevent government informers from joining their ranks.
The Whiteboys would send menacing letters to Protestant landlords in an effort to prevent them from seizing common land, and if these failed they would tear down the enclosures. The settlers’ cattle would be killed and the fences levelled (the rebels were sometimes referred to as the ‘Levellers’). In one of their oaths, recorded at the end of the 18th century, they revealed their wider political ambitions: ‘I sware, I will to the best of my power, cut down Kings, Queens and Princes, Earls, Lords and all such with Land Jobbin and Herrisy.’
Perceiving the dangers of allowing people to swear subversive oaths in a God-fearing society, the Irish Parliament passed a Whiteboys Act in 1775 and another, yet more draconian, in 1787. Those found participating in illegal oath-taking were sentenced to transportation for life to other colonies.
What I heard about Iraq
Eliot Weinberger’s list has prompted me to do a little research of my own (LRB, 3 February). I came across the US State Department list of security companies doing business in Iraq (travel.state.gov/travel/cis_pa_tw/cis/cis_1763.html). Of the 29 companies listed, ten have their headquarters in the UK, nine in the US, four in Iraq (Baghdad), and one each in Australia, Hong Kong, India, Korea, Kuwait and South Africa.
A Better Idea
The juxtaposition of Saree Makdisi’s Diary about the West Bank wall (LRB, 3 March) and Hal Foster’s piece on Christo’s installation in Central Park (LRB, 3 March) gave me an idea for an ‘architectural transmutation’ that could invert the effect of the wall. I would like to invite Christo to use the path of the 1967 border to create a transformational work: a pliable line of fabric that would emphasise the permeability of boundaries. The line would be the antithesis of the present wall in its penetrability and malleability, emphasising the interconnectivity of places and people. To make the project happen, I would need a direct line to God, to Christo, to the Arts Council or to Unesco: can any readers of the LRB help?
Big Hungry Boy
Having read Steven Shapin’s review of Robert Parker, I asked a local grower if Parker had been seen around (LRB, 3 February). Impossible to miss, I was told. He’s 6’6” and 260 pounds, at least. This surely goes some way towards accounting for his taste: high fruit, high alcohol wines for a big hungry boy.
‘Christopher Tayler lives in London’ (LRB, 3 February). How interesting.