Tough on the Constitution

Strossen and Kozinski

Tough on the Constitution

Strossen and Kozinski

Tough on the Constitution
An email conversation about the news of the day.
Sept. 25 1998 5:12 PM

Strossen and Kozinski

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Dear Alex,

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As I entered this week--facing the prospect of keeping up with the news and with you, on top of everything else--I was quite daunted. I can't believe how intensely but enjoyably this week has flown by, punctuated by your postings. I'll really miss them!

The comments you described by a member of Congress concerning the CDA are all-too-typical of what we heard in the lobbying process. I couldn't agree with you more that all public officials, in every branch of government at every level, have a responsibility to uphold the Constitution. Yet, too many elected officials not only "pass the constitutional buck" to federal judges, but then--to add insult to injury--attack the judges for in fact honoring the oath of constitutional fidelity that in theory binds all of them.

Earlier this year, I testified before the House Judiciary Committee on issues concerning what I think of as "judicial independence," but that many House Republicans have been demonizing as "judicial activism." One of the most interesting presentations was made by another House Republican, Rep. Thomas Campbell (R-Calif.), who unfortunately is not your typical member of Congress--in either party. For starters, before being elected, he was a professor at Stanford Law School. To underscore the Founders' intent that members of Congress, as much as federal judges, should take seriously their responsibility to honor the Constitution, Tom noted that the very first recorded debate in one of the Houses of Congress, shortly after the Constitution's ratification, was about whether a particular proposed law was or was not constitutional! It's hard to imagine that kind of debate being brought to us via C-SPAN today.

Hey, that makes me think of a great new campaign slogan, to counter that ubiquitous, seemingly successful "soft on crime" slur, which, as you note, has doomed the re-election prospects of too many judges (not to mention other office seekers). What do you think of this alternative accusation: "Soft on the Constitution"?!

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In the past couple of days, New York Sen. Al D'Amato has been campaigning against his would-be replacement, Chuck Schumer, by charging that he is "soft on crime." Since Chuck was the main force behind the 1994 federal crime law--whose "soft" features included more than 50 new death penalties, a "three-strikes-you're-out" policy, and draconian punishments for juvenile offenders--it's hard to imagine whom D'Amato would consider a sufficiently "tough" crime-fighter. Dirty Harry? (I'm surprised you didn't work any film references into your posts, Alex. Or were they there, but just too subtle for someone who hasn't attained quite your level of filmophilia?!) (Uh-oh, hope that doesn't land you on some registry!)

It's so appropriate that the theme in our exchanges today (as well as throughout the week) has been constitutional rights, since today is the Birthday of the Bill of Rights--the anniversary of the date when that glorious document was approved by Congress and sent to the states for ratification. Good thing that Congress took care of that matter 209 years ago. As this latest exchange underscores, I'm far from confident that we could count on enough votes today.

Thank you for your kind closing words, Alex. Since the respect is mutual, they mean a great deal. And you keep up your important work--and play!

Warm regards to you, Marcy, and your amazing offspring.

N

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.