Originalism

How one should interpret the U.S. Constitution is a hotly debated topic in the United States. At the heart of this debate is whether the Constitution should be interpreted in a manner consistent with how the founders back in the 1780s would have interpreted it, or whether the Constitution should be interpreted to reflect changes in modern society. This idea of looking back 230 years to find the proper interpretation of the Constitution is called originalism. Prof. Lawrence Solum has an excellent primer on what originalism is and what all the hubbub is about.

Cameras in Courtrooms

Should hearings before a high court be televised? American academics, jurists and members of the media have been discussing this for several years now. The Brits have actually said yes to this question, and have allowed their new Supreme Court to hold hearings before the camera since last year. And now the head of the German Constitutional Court has entered the fray (see Spiegel's "Voßkuhle will Fernsehkameras im Gericht zulassen").

Gone

A few days ago I wrote about the effort in Iowa to remove three judges through the retention process because they voted to recognize gay marriage. My point was that usually judges are not removed through this process of retention . . . unless they make a controversial decision. Iowa provides us with yet another example. All three Iowa Supreme Court Justices who were up for retention and voted in favor of gay marriage were removed by voters on Tuesday. My question is, does this prove that supporters of judicial elections are right? Shouldn't judges reflect the majority view of society, and when they don't, they should be removed? Or do we want a system where judges can make rulings that do not reflect the so-called "will of the people?" Does an election like this actually help us truly determine what the will of the people is?

The Passive Voice

For my American Studies students, although my law students could benefit from this as well:

I came across a short, concise description of how the passive voice is used, and not used, in English. I have to admit that I found it while trying to understand how the passive voice is used in German, something with which I am still struggling.

More on Electing Judges

Advocates of judicial elections claim that electing judges make them accountable to the people. Even in those states where judges do not run against opponents, but instead stand for retention, advocates claim that while the people cannot select a new judge, at least they can throw the bums out when warranted. The modern reality is, though, that judges usually do not get removed by retention vote unless they have handed down a controversial decision that angers groups with the financial resources to run an ad campaign seeking their ouster. There is no better example of this than the retention vote taking place this year in the State of Iowa where the Iowa Supreme Court recently held that prohibiting gays and lesbians from marrying violated the Iowa State Constitution. Outraged, groups on the religious right have poured all kinds of money into removing these judges from office. The Associated Press has more.