Category: Law

King’s Dream: Civil Rights and the History of Nonviolent Protest

King's Dream CoverOn this day in 1963, Martin Luther King Jr. gave what is widely hailed as the best political speech of the twentieth century. King famously departed from his prepared text to expound upon his dream, a vision of a nation living in racial harmony. Folk history has it that Mahalia Jackson, a singer and activist, prompted the improvisation by calling out “Tell ‘em about the dream Martin!” What followed has become so deeply ingrained in our national consciousness that we might imagine its message to be as clear and obvious as it is powerful and resonant. King’s Dream by Eric J. Sundquist shows how complex and open to interpretation King’s words were and are.

In the decades after King’s death, liberals and conservatives have both gestured towards King to support their stances on affirmative action and reparations for slavery. Apple Computer, the New Republic, and many others have advertised using imagery that evokes the “I Have a Dream” speech. It is at least partially in response to these reductive (and sometimes contradictory) political and popular appropriations that Sundquist gives a fuller and more nuanced sense of the man and his most famous speech.

Sundquist supplies useful context through his account of King’s work in the Civil Rights Movement of the 1950s and ’60s. The successes and struggles of the Montgomery Bus Boycott, sit-ins, in Nashville and elsewhere, the Freedom Rides, and the especially controversial Birmingham campaign all played into the hopes and fears surrounding the March on Washington for Jobs and Freedom, the occasion for King’s speech. King addresses himself not only to segregationists but to Alabama Governor George Wallace, and, implicitly, to those within the movement who doubted the power of nonviolent protest.

King’s Dream also emphasizes two key American texts that preceded the “I Have a Dream” speech. Sundquist shows how King positioned himself in conversation with Abraham Lincoln and Thomas Jefferson, the writers of the Emancipation Proclamation and the Declaration of Independence. The 1963 “I Have a Dream” speech calls for the promise of Lincoln’s 1863 Proclamation to be fulfilled, and for the nation to “rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’” Through analysis along these lines, Sundquist arrives at one of his core interpretive claims. He writes:

King’s greatness, as well as the greatness of his speech, lay in his ability to elevate the cause of civil rights and the cause of America at the same time. The nation had failed black Americans, no doubt, but it was not—contrary to the opinions of some raising the fist of Black Power—irredeemably corrupt and ripe for overthrow. Enlisting his audience in a crusade sanctioned equally by the Declaration of Independence and the Bible, King in no way rejected America’s foundational values. Rather, he purified and consolidated those values by insisting that only when the revolutionary rights they guaranteed were shared by Americans of all colors, creeds, and nationalities would they truly be America’s foundational values.

Sundquist addresses the anniversary of King’s speech most directly, but three other authors also critically consider “the cause of civil rights and the cause of America at the same time.” In We Shall Overcome, Alexander Tsesis traces the history of legal efforts to achieve civil rights for all Americans, beginning with the years leading up to the Revolution and continuing to our own times. Tsesis also argues, in opposition to other legal theorists, that the Constitution fundamentally requires the U.S. government to defend individual liberties for the benefit of general welfare.

Civil Disobedience CoverLewis Perry writes from a similarly broad perspective in his book, Civil Disobedience. He considers the history of nonviolent protest and the ways it has been and become an American institution. Perry attends to the subtleties of King’s position, noting that although he eventually abandoned the practice, King carried a pistol for a time and publicly conceded the right to defend home and family.

In Protest at Selma, David J. Garrow closely examines how the Voting Rights Act of 1965 came into being. He emphasizes how crucial it was that Martin Luther King Jr. learned to exploit the media, an influential third-party audience. By shifting focus from nonviolent persuasion, intended to win over attackers, to nonviolent provocation, intended to win over the media and its audience, King was able to make dramatic progress.

Each of these books helps us understand the magic of the “I Have a Dream” speech and the courage of the Civil Rights Movement. They consider, sometimes critically, what it meant to be an American fifty years ago and what it means to be an American today. They ask us to look carefully at our laws and culture and they assure us that we need not be satisfied with the status quo. Sundquist, Tsesis, Perry, and Garrow insist that we treat this anniversary as an opportunity to reflect on the complexity of Martin Luther King Jr.’s dream, and their books remind us to live deliberately so that the nation may honor its promises and fulfill the true meaning of its creed.


Why Be “Nudged” Toward Better Decisions?

sunstein_nudgeRead the profile of Cass Sunstein in the May 2014 issue of The Atlantic!

From last minute impulse buying at the grocery store to the way we treat the environment, it goes without saying that we are sometimes prone to making decisions that are not in our own best interest. Sometimes we know intellectually that these decisions won’t ultimately make our lives better, while other choices we make out of a lack of awareness about the consequences. According to the authors of Nudge, Cass Sunstein and Richard Thaler, this is part of our humanity. We make mistakes that do not improve our lives due to natural biases. We are simply susceptible to these kinds of lapses as humans, and this has interesting consequences for politics and the individual. Ultimately Sunstein and Thaler propose an outlook that starts from that premise: we will err, so how can things be designed so as to ensure the best result for ourselves? Through analyzing how we approach decisions, we can arrange our environment in a way that is conducive to choosing things that will benefit ourselves and our communities in the long term. This kind of “choice architecture” is the “nudge” to which the title refers. Crucially, it does not remove freedom of choice in these scenarios, but looks to creating situations in which we are more likely to choose those things will make our lives better. sunstein

In his new book, Why Nudge?, Sunstein — professor and former Obama administration official — takes this approach further to defend and clarify how we can embrace about this kind of paternalism. He admits that the concept of paternalism is sometimes controversial. “Paternalism stirs strong emotions,” he writes. “Many people abhor it. They think that human beings should be able to go their own way, even if they end up in a ditch.” Why Nudge explains how we can responsibly approach guiding people toward more beneficial choices, and how the effects of those healthy choices spread through the community. Sunstein takes issue with John Stuart Mill’s Harm Principle that asserts, “the only purpose for which power may be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” That is, an individual’s own well-being is not a good enough reason to limit his or her autonomy. Yet Sunstein shows how we can honor people’s freedom while taking into account their tendency to veer from what would help them.

In short, Sunstein demonstrates that “in certain contexts, people are prone to error, and paternalistic interventions would make their lives go better.” Sunstein also acknowledges the limits of paternalism. One such issue is simply the diversity of human lives; what is “good” for one person at one time is not necessarily good for the other and one size does not fit all. Still, he notes the way in which being required to wear a seatbelt, or being disallowed from texting while driving applies to the welfare of the majority of the population, no matter how diverse. Indeed, Sunstein does not dismiss Mill’s argument on all grounds, rather he seeks to show how it is not always right, that indeed there are times where paternalistic interventions are a preferable option and should thus be considered.


Cass R. Sunstein

The Political Decisions that Keep Guantanamo Bay Open

Listen to the podcast interview for The Terror Courts on iTunesU!

terrorCourtsOn the Yale Press Podcast, in conversation with Yale University Press Director John Donatich, author Jess Bravin revealed: “It was one of the commission’s big advocates, Senator Lindsey Graham, who told me, in effect, that you needed to put the 9/11 defendants on trial by military commission in order to justify the existence of military commissions . . . Justice in this case has been delayed in order to add to the creditability of military commissions by giving them marquee-level defendants to prosecute.”

Jess Bravin’s The Terror Courts: Rough Justice at Guantanamo Bay has won numerous accolades for debunking presumptions like these about Guantanamo Bay and the military commissions. Terror Courts was a 2013 top political book pick by many, including the Washington Post and Publishers Weekly. Rolling Stone called it “captivating,” the New York Times labeled it a “welcome addition to the history of national security legal policy dilemmas in the Bush era.”

With The Terror Courts releasing in paperback this month, we are pleased to share an excerpt from the conversation between YUP Director John Donatich and Bravin. Guantanamo Bay once garnered enough public attention that then presidential candidate Barack Obama made closing the detention camp a campaign promise. John Donatich asks Bravin about the potential for sustained public outcry as the detainees cases drag on in the permanent military commissions:

John Donatich: What do you think now, with the hunger strikes getting more attention, at what point do you think Guantanamo will be an issue that Congress has no choice but to address, and will there be any kind of sustained public outcry against what’s happening?

Jess Bravin: Well there is no public outcry against what’s happening there that I can tell, there are certainly people that have been concerned about it, but it’s not an issue that motivates mass attention in the United States.

I think that if the congress remains as it is now—divided partisan control in the two chambers, and no constituency for addressing Guantanamo, it’s hard to image much happening from Capitol Hill. I think the initiative lies almost completely with President Obama. In his first term he was willing to expend zero political capital towards his campaign promise of closing Guantanamo and significantly altering the way that military trials worked—well, he did alter the way military trails work on paper, I have to say that. He did sponsor legislation that did afford defendants greater protections than they had previously, but in terms of closing the place and just closing the book on this post 9/11 experiment in parallel justice, he hasn’t really done anything to accomplish that after discovering there was some political price to pay for trying back in 2009.

Listen to their complete conversation on the Yale Press Podcast, now available through Yale University on iTunesU.

Jess Bravin

Jess Bravin

40 Years of Endangered Species Act, 39 Years of Attacks on the Snail Darter

Today is the 40th anniversary of the Endangered Species Act (ESA) of 1973. The ESA attempts to protect species from extinction as a “consequence of economic growth and development untempered by adequate concern and conservation.” The ESA uses quite broad language, protecting “any species”. There was some question as to the breadth of cases in which the Act could be invoked. A year later, the snail darter was discovered and thrown, along with the yet untested ESA, into the battle to save the Little Tennessee River from the Tellico Dam. Law professor Zygmunt Plater tells the story of the case in The Snail Darter and the Dam, sharing from his first-person perspective inside the case the emotional story of the tiny fish that almost saved the family farms of the Little Tennessee River Valley.


Despite the fact that the dam would do much damage to the region’s aquatic and human occupants while providing no economic benefits, the takeaway of the case for the press and ESA opponents was that the Act was a dangerous, extremist weapon wielded by environmental hippies who would block important economic development for insignificant species. These opponents have used the snail darter case to fuel misperception of the ESA ever since it was first brought up in a court room. The snail darter continues today as a misbegotten target for antiregulatory attacks on the ESA and other regulatory statutes; Sen. Rand Paul and the Tea Party have recently submitted bills to eviscerate the Act’s protections of wildlife—S.B. 1731 and H. 3533—and in his comments against the Act Sen. Paul uses the snail darter as an object of scorn and a symbol of environmental irrationality.


With every new environmental debate, the snail darter is referenced to disparage the ESA, arguing that it has too much power if if can be used to defend such insignificant species. This past summer, Tea Party Rep. Louis Gohmert used the snail darter to disparage a civil rights bill amendment that he perceived to be designed protect environmental interests. California Rep. Devin Nunes said recently that “the Snail Darter has sort of became (sic) the shorthand for overregulation in this country”. Fox News’s Sean Hannity called the snail darter defenders “fringe lunatics”.

These opponents attempt to reduce ESA cases to a minor species against massive job growth and economic development. In truth, the relationship between economics and the environment is much more complex. In the case of the snail darter, good ecology was not in conflict with good economics. The Tellico Dam and associated model city project had no economic viability, but was being pushed through to bring pork-barrel funding to a few politicians. Without the leverage provided by the ESA, there would have been no legal recourse with which to reveal the economic inadequacies of the Tellico dam.

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Many environmental legal battles struggle with the kind of oversimplification and radical branding that Endangered Species Act cases faced. The Keystone XL Pipline project is controversial on many levels, but like the Tellico Dam, many concerns have been raised about the actual economic benefit to be gained from such a project. Like the Tellico Dam, those opposed have been branded as radical environmentalists standing in the way of progress, and like the Tellico Dam, some of the most affected groups will be small family farmers whose land will be taken for the purposes of the project. Hopefully, The Snail Darter and The Dam will set the record straight for the little fish, prompt a more nuanced debate about these complex environmental issues, and open a small window for broader recognition of the twists and turns of modern politics and governance.


Is America Still a Democracy?

Stein Ringen, author of the recently published Nation of Devils: Democratic Leadership and the Problem of Obedience, writes here on the current state of American democracy in light of the recent shutdown, financial concerns driving policy, and the possible erosion of the government into “soft despotism.” His book addresses one of the primary concerns of democratic government: how to ensure the obedience of the populace in order to govern by authority rather than power.


Stein Ringen, photo credit: Tiril Simengård Falklev

Stein Ringen, photo credit: Tiril Simengård Falklev

Stein Ringen—

The standard verdict over American politics is now “dysfunctional.” But the health of the system is even worse than it looks. The democratic response to political failure is to throw out the rascals. But the problems now stick deeper. They are systemic. The visible mess in Washington is symptom, not cause.

Politics is fought in two arenas. Onstage, the parties, the voters, the administration, Congress and the Supreme Court jostle over lawmaking, budgets and taxes.

Backstage, interest groups compete over ideas and to tilt public policy in favor of their particular causes. This double act is normal and the way a democracy is supposed to work.

In America, however, over the last two or three decades, there have been two tectonic shifts in power relations. First, the backstage arena has overpowered the onstage arena. Laws and budgets are obviously still decided onstage, but more than previously, much more, it is now laid down backstage what can be decided and who the decision-makers are to be. This has happened through a massive investment of money into backstage institutions: PACs, movements, think tanks and media, PR and lobbying organizations.

Second, monied interests have monopolized backstage politics. Previously, there was a balance between capital, relying on economic power, and labor, working through organizational power. Now, while organized labor has declined capital has added organizational power to its already formidable economic power.

In stead of checks-and-balances, there is gridlock and the country does not get the governing it needs. This shift has been rapid and radical and the resulting predicament is NEW.

The mechanism by which a bloated backstage arena has overpowered onstage governance, is that which the economist Arthur Okun called the “transgression” of money into the domain of politics. In the age of mega expensive politics, candidates are dependent on economic sponsors to fund permanent campaigns. This gives the providers of money the power to decide who the successful candidates will be – those they wish to fund – and what they can decide once they are in office – that which is acceptable to potential funders. Occasionally, a backstage operator will let his guard down and tell it as it is. Said Christopher Dodd when he had just become President of the Motion Picture Association of America: “Those who count on Hollywood for support need to understand that this industry is watching very carefully who’s going to stand up for it.”

American democracy has been constituted for interests to be checked against each other. That was the equality the Frenchman Alexis de Tocqueville saw when he observed the American system in the 1830s and for which he lauded it as a model for other countries. But already Tocqueville warned of a danger that America might regress towards “soft despotism:” that democratic reality erodes although democratic formality is preserved.

This is what Arthur Okun alerted was happening (in a book called Equality and Efficiency, published in 1975). When money is allowed to transgress from markets, where it belongs, to politics, where it has no business operating, those who control it gain power. Candidates have to satisfy not only voters for their votes but also givers for their money. The serious givers, i.e. the rich, get two goes at influencing politics, one as voters and one as givers. Others have only the vote, a power that diminishes as political inflation deflates its value. It is a misunderstanding to think that candidates chase money. It is money that chases candidates.

In recent political writing there has been an avalanche of critical analyses of the American system. Many critics are edging beyond warning that democratic reality might erode to concluding that it has happened. The doyen of democracy scholarship, Robert H. Dahl, the most measured of critics and the most persistent defender of American democracy, in his most recent book (On Political Equality, 2006), moves near to the edge: “Because of a decline in the direct influence of citizens over crucial government decisions, and also in the influence of their elected representatives, political inequality might reach levels at which the American political system dropped well below the threshold for democracy broadly accepted at the opening of the twenty-first century.”

How far the decline has gone is open to dispute, but the need for repair is no longer in question. A first step is to understand the nature of disrepair. It’s not about party politics. Unless the need to restore workability is confronted, the system will be dysfunctional going into the next elections and it will be dysfunctional coming out of them.

American citizens are more cynical than ever about their politicians, but that cynicism is misplaced. They should direct their justified anger against systemic dysfunctions. Political writers are more radical than ever in diagnosis, but reticent in following through to prescription. They need to move beyond complaining and get their question right: How can power be restored to where it should be, to the onstage arena?

It is historically tragic that the question, “Is America still a democracy?” is no longer rhetorical. In the absence of people power, decent representatives will continue to be deflected away from the Constitution’s intention of cooperation for, in George Washington’s words in his first inaugural, the discernment and pursuit of the public good.

Stein Ringen is emeritus professor at Oxford University and the author of Nation of Devils: Democratic Leadership and the Problem of Obedience.

Talent Wants to be Free: Online Symposium on Intellectual Property

“Who owns your email? What about work place creation? Who owns what you come up with at work? Does it matter whether you used company technology to create and learn?”

lobelThese questions, asked by Deven Desai of Concurring Opinions, and related discussions on the economics of human capital form the basis of a week-long symposium on Orly Lobel’s Talent Wants to be FreeProfessor Lobel has spoken eloquently on the “Talent Wars”, as she names the debates on intellectual property regulation, for outlets including The Freeman, The American Constitution Society blog, and Nerd Wallet.

“Abraham Lincoln famously stated that we grant exclusive patent protection to add the ‘fuel of interest to the fire of genius.’”

In these essays and interviews, Professor Lobel reflects on the shift from the inventor as an individual to invention in the context of the workplace. Beyond the scope of patents on inventions, companies often control their employees’ “potential for creativity” with non-compete agreements, which Lobel argues stifles economic development rather and defending it.

This week, during the Concurring Opinions symposium, Professor Lobel continues this conversation on the talent wars online, an appropriate venue considering the Internet’s centrality to the intellectual property debate. She will be joined by Matt BodieAnupam ChanderDanielle CitronCatherine FiskVic FleischerBrett FrischmannShubha GhoshRon GilsonPeter Lee, and Frank Pasquale.

Join the Symposium

Raphael Lemkin: The Unsung Hero Who Gave Genocide Its Name

Guilt without guilt is more destructive to us than justified guilt, because in the first case catharsis is impossible.

Totally UnofficialHe was the man who coined the term “genocide” and dedicated his entire life to making it illegal — but most people still don’t know his name. Raphael Lemkin, a Holocaust survivor, successfully campaigned in the 40s for the United Nations to approve the Genocide Convention, which establishes genocide as an international crime and emphasizes the punishment of the perpetrators. And yet for the better half of the past century, he has been largely ignored by the general public. Published here for the very first time, more than fifty years after his death, is Lemkin’s own account of his life.

Part history and part memoir, Totally Unofficial, edited by Donna-Lee Frieze, intertwines the momentous events of World War II with the intimate thoughts of a Polish Jewish refugee, who could only watch helplessly from America as his entire family was killed in the Holocaust, and who then threw himself into an all-consuming, self-punishing quest to fight the worst of all crimes against humanity.

Born in 1900, Lemkin was just six when he received news about a pogrom in the city of Bialystok, a few miles away from his family farm. There, anti-Semitic mobs had cut open the stomachs of their victims and stuffed them with feathers from pillows and comforters. He took an intellectual interest in the persecution of minority groups as soon as he learned to read, devouring books about the destruction of the Christians by Nero; of Carthage, the Huguenots, the Catholics in Japan. These readings left an indelible mark on his young conscience, as he renders sensitively in his introduction:

My conscience protested when I read that the Huguenots in Lyon were roasted alive by being compelled to sit with naked bodies on heated irons. The Moors were deported on boats. While on deck they were stripped of their clothes and exposed for hours to the sun, which finally killed them. Why should the sun, which brought life to our farm and reddened the cherries on our trees, be turned into a murderer?

Later in his youth, when he was a law student at the University of Heidelberg in Germany, he was similarly affected by the case of Shalom Schwarzbard, a Jewish tailor who had shot the Ukrainian minister of war, Symon Petliura. Petliura was responsible for the massacres that had taken the lives of Schwarzbard’s parents. Schwarzbard was eventually acquitted on the grounds of insanity, but Lemkin deplored the legal framework in which the decision had been made. The man had avenged hundreds of thousands of innocents with this assassination, but he had had to take the law into his own hands to do so. Why did the perpetrators of genocide have to be punished by vigilantes, and why could the court condemn only the latter?

When the Nazis invaded Poland, Lemkin was forced to flee to Sweden, and then to the United States, where he obtained a visa based on his appointment at Duke University. One morning in June 1941, he opened a well-worn envelope which had been traveling for more than two months. Written on a scrap of paper were a few simple words from his parents: “We are well and happy that the letter will find you in America.” Something within Lemkin told him that this was his parents’ final goodbye, and for days he could not chase away this heavy feeling:

Several days later, when the North Carolina night was paling, I woke, covered with deep sweat. I had had a dream in which my mother’s face came close to me. I didn’t see her body, just her face, with her hair combed low on her forehead. Her eyes smiled through a thick mist of sorrow, as if she knew a secret I did not. I stretched my hand toward her face, to caress it, but she moved back from my touch, fading gradually, and I awoke.

Several years later, he learned that his parents’ home had been burned to the ground, and that they had been sent to the gas chambers.

In a sensitive and penetrating review in The New Republic, Michael Ignatieff examines the obsessional quality of Lemkin’s devotion to his cause. Lemkin never married, had few friends, and left stable jobs to pursue his campaign to promote the Genocide Convention. In 1959, he died alone, with neither money nor friends. “He appears,” Ignatieff writes, “to have been on of Kafka’s hunger artists, those moving, self-punishing creatures who cut themselves off from the world, preyed upon by a guilt they cannot name, making their misery into their life’s work.” Towards the end of the book, Lemkin recounts an exchange with—who else—himself, as he considers the enormity of the project he has undertaken. In his mind, the sacrifice for the survival of future generations was always one that had to be made, and one that he took on in full knowledge that it would, ironically, lead to his own demise.

But this fight will finally destroy you, yourself. So what? Whoever fights for an ideal must risk his life.

Floyd Abrams: Friend of the First Amendment

Olivia Gall—

A few weeks ago, I visited a restaurant where an employee acted very rudely towards me. Fuming, I went home and wrote a scathing Yelp review about the establishment.  Satisfied that justice had been served and that the entire online community could be made aware of the horrible service I received, I triumphantly hit the “submit” button with a simple click of my mouse.

Then fear suddenly plagued me. What if I ruined the business? Could they sue me for libel? I wracked my brain frantically for fragments of court cases from a Journalism law course I took a few years ago.

Then I began to relax. These review sites allow people to exercise their First Amendment right: freedom of speech. If I was angry or unsatisfied about the service I received, I could vocalize my opinion without fear of retribution.

On a much larger scale than my amateur restaurant reviews, Floyd Abrams provides an inspiring and controversial collection of his writings addressing key First Amendment issues of the past four decades in his new book, Friend of the Court: On the Front Lines with the First Amendment. Abrams raises an important question for First Amendment defenders: Can you stand in favor of free speech even when that speech pains you ideologically?

The owners of the restaurant I reviled probably wish I weren’t able to make public the offenses of their staff, but I have the right to state my opinion of their establishment. Sometimes, however, published opinion can distort the public’s perception of the truth. Abrams dedicates a large part of his book to the controversial Citizens United case, which dealt with unfavorable speech in conflict with national elections. The court ruled that a documentary bashing leading Democratic candidate Hillary Clinton could be aired right before the 2008 primary, going against previous legislature that prohibited outside parties from running ads referring to a candidate up to sixty days before an election. The former law was designed to prevent corporations from spending money to potentially corrupt elections. Abrams, whom Kirkus Reviews refers to as a “First Amendment absolutist”, supported the Citizens United ruling, arguing that it protected the documentary producers’ freedom of speech.  In a recent Los Angeles Times interview with Patt Morrison, Abrams called the First Amendment “counterintuitive,” saying that the reason many Americans feel uncertain about what constitutes free speech is because “it’s tough to accept that we should let people say things that are dangerous or harmful.”

Thanks to the many dissemination possibilities provided by the Internet and outlets such as WikiLeaks, dangerous or harmful speech can enter the public arena much easier than ever before. Sometimes published content can threaten individual or national security, a problem that began before the rise of the Internet with the precedential Pentagon Papers case. Daniel Ellsberg, a former government employee, made classified documents relating to the Vietnam War available to the New York Times, who published the information. The Justice Department obtained a court injunction against further publication on grounds of national security; however, the Supreme Court ruled that the constitutional guarantee of a free press overrode the injunction.

Friend of the Court arrives at an important time for First Amendment issues; on July 31, 2013, the Obama Administration released formerly classified documents outlining the NSA’s program of collecting domestic phone calls. Such programs were previously leaked by former NSA contractor Edward Snowden to The Guardian. Snowden has often been compared to Ellsberg of the Pentagon Papers case. Abrams, who defended The Times in the infamous 1971 trial, has been consulted for his opinion on the modern-day Ellsberg situation. In the aforementioned LA Times interview, Abrams condemns people like Snowden and Julian Assange of WikiLeaks, who “release so much information that could do harm to national security that I think they shouldn’t be viewed as heroic but as, often, reckless.” Despite his stringent advocating of First Amendment rights, he warns against those who take the risks of disclosure too lightly. As former Yale Law professor Alexander Bickel opines in the introduction to Abrams’ book: “Not everything is fit to print.”

Friend of the Court will be an important read as the NSA debate continues to roil and as we continue to exist in the age of the internet, where virtually everyone can become a publisher. From average citizens like me who rant over bad restaurant service, to major newspapers exploiting government secrets, Abrams’ experiences from his legal career will make any American question what exactly the First Amendment guarantees, and how far we should go to uphold it.

Olivia Gall recently graduated from Fordham University with a degree in English and Communication & Media Studies. She is a summer intern in the Yale University Press Sales Department.

Jess Bravin on Democracy Now!

The Terror Courts: Rough Justice at Guantanamo BayRecently, Jess Bravin appeared on “Democracy Now” to discuss his new book, The Terror Courts: Rough Justice at Guantanamo Bay. He spoke on the government’s military commissions at Guantanamo Bay and the legal implications of these actions. Describing his reporting for the The Wall Street Journal, Bravin said:

I got wind of work in the Bush administration to authorize military tribunals, what they call “military commissions,” to prosecute the people behind 9/11. That was the plan. And I thought that was an astounding development, because this type of justice is a sort of ad hoc sort of trial that has occasionally been held by the United States during or after wartime. These hadn’t been held since World War II. And so, it was a dormant area of law that suddenly might be very much alive. And so I followed that.

Bravin’s book works to track the policies forged at Guantanamo and the consequences these plans will have on the American justice system.

Watch the full interview here, and stay tuned for more updates and interviews on this timely topic!

What the Founding Fathers Can Teach Us about Religion and Government

As with other elections in the years past, next month’s contest between Obama and Romney will be influenced by vexed issues relating to religion. Health care and citizens’ access to contraception; same-sex marriage; hate speech; the list goes on. The election is furthermore complicated by the two candidates’ religious beliefs (or, in Obama’s case, people’s perceptions of them)—a poll by the Pew Forum on Religious and Public Life earlier this year showed that religion (perceived or otherwise) may be a liability for both candidates.

In a country which has grown more and more religiously pluralistic over the years, discussions of religious liberty are becoming increasingly imperative. But instead of referring solely to the current landscape, perhaps it’s also worthwhile to look to history for guidance. In his new book, Endowed by Our Creator: The Birth of Religious Freedom in America, Michael Meyerson scrutinizes the Founding Fathers’ vision of the role of religion and government to show how historical understanding can provide us new perspective on contemporary issues.

Such historical knowledge is important today because “the present intellectual environment,” Meyerson writes, “limits discussion to a false dichotomy.” He continues, “In one camp are the “strict separatists,” who believe that any form of governmental support of religion, either financial or symbolic, is prohibited by the First Amendment. Opposing them are the “accommodationists,” who think that the Constitution permits the government to actively assist and endorse a wide range of religious activities.”

But do we really have to choose between the two camps? Meyerson argues that the Founding Fathers struck a subtler balance:

“[T]he framers decided that the American government should not acknowledge religion in a way that favored any particular creed, denomination, or group of denominations. They did not insist on a godless government, and their religious statements were not empty “ceremonial deism.” They were not afraid of the public offering of truly religious expression. Yet they strove to find a civil vocabulary that could encompass all people, regardless of faith.”

In this light, it is both dangerous and misleading for accommodationists and separatists to twist the Constitution to fit their respective agendas. And it would be ill-advised for us to remain trapped by a false dichotomy. Instead, the nuanced approach of the Founding Fathers is a worthier aspiration:

“We must recognize that one may be deeply religious, like John Leland, and still believe that a close tie between church and state degrades all religion and threatens the freedom of those not belonging to the majority denominations. We must understand that one may care deeply about religious liberty, like George Washington, and still believe that public acknowledgment of religion does not threaten the rights of others.”

As Meyerson concludes, the roles of religion and government are not easy to reconcile, but history remains an invaluable guide in our negotiation between the two: “[B]y learning the lessons of those who helped create the American understanding of freedom of religion, we can begin to move closer to a more perfect union.”