Law and the Courts

The debate between Noam Chomsky and Michel Foucault in 1971 represents a political debate that has gone on since ancient times, over the importance of concepts like truth and justice. Thinkers like Foucault argue that truth and justice are merely masks to conceal the motives of power. Groups or individuals who claim to represent these ideas use them to hold sway over others, and to make their power over others seem normal or natural. Foucault goes on to argue that political movements should get rid of any notions of truth or justice, and simply be explicit about seeking to gain power. A character named Thrasymachus who appears in Plato's Republic makes similar arguments, when he says "justice is nothing but the advantage of the stronger."

Before going on to look at Chomsky's response, it is interesting to look at some examples of what Foucault might mean when political figures use ideas like truth and justice. One example could be US foreign policy, or the foreign policy of any state for that matter. The US is obviously the most powerful country in the world in terms of military power and plays a unique role in world affairs. Foreign policy refers to the policies or positions taken by the government towards the governments of  other countries. In its relations towards other countries, US political leaders argue that their policies are true and just, or fair regarding other countries. However, when examining how the US relates to many countries whether it be in the Middle East, Latin America, East Asia, Africa, or anywhere else it seems fairly obvious that power is what really determines foreign policy. The US has a centuries long history of intervening in Latin American and Caribbean countries, often times undermining or overthrowing governments of countries that they deem a threat to their interests, even if these governments are democratically elected. Although these efforts can be found in almost every country in the region, some of the most notorious examples would be in Nicaragua, Cuba, Chile, Brazil, the Dominican Republic, and Haiti. In the middle east, the US continues to support Saudi Arabia, despite a human rights record that is worse than Iran, a country the US frequently condemns for human rights abuses. Even more damning, recently declassified government documents suggest that Saudi Arabia may have played a role in the September 11th attacks, and that people in the federal government have known about this since at least 2002. Here is a link to an article on the 28 pages that were declassified from the Congress' 9/11 report.

Besides foreign policy, another example could be criminal justice in the US, or again any other country. We are commonly told that the so-called administration of justice is a fair and impartial process, and forms the backbone of the legal system. Here, again, it is fairly obvious to see that criminal justice is anything but fair and impartial. Instead, it is a system that is racist and favors the wealthy. This was a topic of interest to Foucault as well, who wrote about this in Discipline and Punish, his book on the history of prisons. 

Many others have spoken of massive policy failures, like the war on drugs fought since the 1970s have resulted in trillions of dollars of expenditures and thousands if not millions of people sent to prison for drug related crimes, playing a big role in the creation of a mass incarceration state. The US drug war has also spilled over into other states like Mexico who are forced to become participants in this drug war, the results of which has devastated the country, leading to one of the highest murder rates in the world, as journalists, politicians, and basically anyone who fights against drug cartels runs the risk of being murdered. The war on drugs officially began during the Richard Nixon administration. One of Nixon's top aides John Ehrlichmann, after going to prison for Watergate, later admitted that the whole policy of the war on drugs was created to criminalize political opponents of the president, namely African-Americans and the anti war movement. This war was expanded on by Ronald Reagan, who coincidentally had the same political opponents, and continues to this day, with very little opposition from Democrats, many of whom tried to appear even tougher on crime than Republicans during the 1980s and 90s. One of Bill Clinton's sad legacies (of which there are many) was the Crime Bill of 1994, a bill that was authored by Joe Biden when he was a senator, and who used to brag about it until recently, and while Hillary Clinton was going around the country talking about "super predators." Even current political figures like Kamala Harris have a bad record on criminal justice. Her record as a prosecutor makes it clear that she is tough on poor people, including people of color (apparently Biden thinks the two are the same), often putting people in jail for minor offenses, while letting financial criminals like Steven Mnuchin (dubbed the king of foreclosures) get away with committing possibly thousands of crimes. Mnuchin is now currently Trump's Treasury Secretary.

Communism can be another example where power hides behind truth and justice. Cornel West has argued that democratic socialism is as American as apple pie, but he also means to separate this from the historical record of communism in different countries like Russia or China. Communist ideology, or the political belief system of communism, states that the goal of communist policies is to create a just society. A just society would be an equal society without economic classes. However, in reality the actual experience of communist governments shows that is not the case. Communist countries, like the former Soviet Union or China, were (or are still) ruled by communist parties, the leaders of which enjoy great privileges compared to the rest of the population.

Finally, religion is another prime example where truth and justice conceal claims to power. Whether it is evangelical Christian ministers, who make great fortunes off the donations of their supporters, while supporting conservative political causes, or Islamic governments like Iran or Saudi Arabia, or Israel which uses Judaism as its basis, all of these movements have been shown to advance the interests of its leaders, usually at the expense of their supporters.

Given all these examples, it seems that Foucault's argument is correct. Chomsky, on the other hand, does not disagree that power often hides behind claims of truth and justice, but disagrees with Foucault's idea to get rid of all notions of truth and justice. Foucault is not the first person to argue that power is often concealed, that is not really an original argument. As far as getting rid of all claims of truth and justice, Chomsky points out several contradictions with this position. For one, it takes away a person's ability to question whether something is right or wrong. If a person wants to stand up for certain causes, and oppose certain forces, as Foucault did, you have to have some belief that what the authorities are doing is wrong, but if everything is just about power, you really have no grounds to claim what the authorities are doing is wrong, they are just another group seeking power. Also, if you make a statement like "there is no such thing as truth" you are implying that statement is true, which leads to a contradiction. When Chomsky confronts Foucault with arguments like these he does not seem to be able to respond well. Ultimately, Chomsky argues even a flawed or imperfect idea of truth and justice is better than nothing at all. By flawed, he means that what we believe to be true and just is limited, we do not know everything, but are still put in situations where we have to act.

The American legal system is based on the idea of "common law," from the English system. In a common law system the authority of judges to decide cases are emphasized. Many other countries have a "civil law" system where laws are laid out in written codes of law (e.g. the Code Napoléon), and the task of judges are to interpret when the laws apply in specific cases. In common law, obviously judges still have to follow the written laws, but are given more freedom to come to their own decisions. 

However, past decisions of judges are carried over into present cases, so before a case is decided, lawyers and judges consult past court decisions, this is known as "legal precedent," or stare decisis, since judges cannot contradict previous decisions (except in rare circumstances) the authority of past decisions has a strong hold on legal outcomes in the present. Furthermore, another feature of the American legal system are the high frequency of "plea bargains." Again, since common law allows for more interpretation, court cases can be very time consuming. To compensate for this, many cases are "plead out," meaning that the defendant will plead guilty to a lesser offense without a trial, in order to speed up the process of coming to a legal decision. Almost 80% of legal decisions in the U.S. are the result of plea bargains.

Common law countries also distinguish between criminal law and tort law (also called civil law, but different from civil law of other countries). Criminal acts violate the laws of the state, and are prosecuted by the state. Torts cover lawsuits initiated by people for damages resulting from the actions of others and are between individuals (the plaintiff and defendant). So, for example, driving while is intoxicated is a crime that can be prosecuted by the state, regardless if any injuries were done, at the same time, any injuries that are caused by the person can be held liable as a tort (sometimes called a "civil wrong"). There are different procedures in how criminal and civil cases are conducted. For example, OJ Simpson was acquitted in criminal court for murder, where jurors have to be certain "beyond a reasonable doubt", but was found liable in a civil lawsuit where jurors have to consider what is most likely, in other words the standard of proof is lower in civil court. "Tort reform" is an effort by corporations to limit the damages possible in a civil lawsuit, since corporations are liable under tort law for damages or injuries done to people, covering things like medical malpractice, environmental pollution, unsafe products, and more.

Conservatives, oppose what they call "judicial activism" or what they consider to be the judicial branch of government taking too much of a pro-active role in deciding legislation, rather than interpreting the law. However, this criticism seems to overlook the features of how a common law system works. That being said, the judicial branch has almost always tended to be the most conservative branch of government, the branch least influenced by popular majorities. It should not be surprising, that Alexander Hamilton, the most conservative of the founders, spent the most time emphasizing the importance of the judiciary in the Federalist Papers.

The federal judiciary (of which Hamilton was a prime architect) set up under the Constitution went into effect, along with the Judiciary Act of 1789 which further specified the structure and duties of federal courts. One of the busiest was the United States District Court for the Southern District of New York. The Judicial branch of the government, makes up more than the Supreme Court. The 94 federal district courts are the lowest level of the federal judiciary. Above them, presently, there are 13 U.S. Courts of Appeal, in most cases these are the highest federal judicial authority most people will deal with if they have to. Higher than this is the Supreme Court of the United States (SCOTUS) but it limits the amount of cases it hears every year to about 100. The Supreme Court has a maximum of nine justices of the court including the Chief Justice, and Associate Justices. They are nominated by the President, approved by the Senate and serve life-terms. The power of the court is specified in Article III of the Constitution. 

Top Row (Left-Right): Gorsuch, Sotomayor, Kagan, Kavanaugh
Bottom Row (L-R): Breyer, Thomas, Roberts, Ginsburg, Alito

The primary concern of the Southern District today includes Manhattan and the Bronx and handling cases under "admiralty law" or cases involving trade or shipping disputes with foreign countries or interstate trade from other states. This is a highly sought after position and has been used a springboard for even higher offices, for example before he became Mayor of New York City in 1993, Rudolph Giuliani was the State's Attorney (or federal prosecutor) for the Southern District of New York. This is distinct from the Government of New York State and the City of New York, and you can see now how the different layers of government: federal, state, and municipal all overlap with each other depending on authority and function.

Southern District of New York

Legal matters involving trade with a foreign country come under the jurisdiction of federal law. Since the port of New York was the busiest port in the country, most cases involving disputes over shipping and international trade would occupy most of the court's activity.

The Supreme Court (as the federalists intended) has tended to play a more conservative role in government, often siding with business interests against attempts to regulate commerce through legislation. However, in the public imagination the court is seen as a crucial part of the civil rights movement, as the institution which finally ended legal segregation in the nation in the landmark case Brown v. Board of Ed. By looking at some of the most important cases to come through the Supreme Court we begin to understand better the dual role the court has played in American history.


In judicial history the first really important case heard by the court was Marbury v. Madison in 1803. This case is important because it established the importance of judicial review in the U.S. The power of judicial review is the most important power of the court, and it is a power which is fairly unique to the U.S. supreme court, although all nations have a judicial branch of government, not all nations have this power. Basically, the power of judicial review gives the court the power to cancel out laws passed by Congress or actions undertaken by the executive branch, by determining the constitutionality of laws and actions, the court can deem them to be unconstitutional and thus invalidate them. This power was not clearly specified in the Article III of the Constitution, and it was not until Marbury v. Madison that the power of the court was established.

Since then, the court has weighed on many important matters from the regulation of businesses (Swift & Co. v. U.S.), to freedom of speech (Schenck v. U.S.), civil rights (Brown v. Board of Ed; Loving v. Virginia), abortion (Roe v. Wade), legalization of drugs (Gonzales v. Raich) and the notion of "corporate persons" and the role of money in government (Buckley v. Valeo). As mentioned already it has tended to side more with business interests in cases regarding it, but has, at times, supported the civil rights of minorities. In other words, the court has tended consistently to support minority interests (whatever they may be) against the majority. That being said, at times, the court is not above prejudice e.g. the court's decision in Brown v. Board of Ed, contradict earlier decisions which affirmed segregation like Plessy v. Feguson (1896) or Dred Scott v. Sanford (1857) which denied the citizenship and even the humanity of African-Americans. 

Since the Civil War, many of the court's decisions have relied on the 14th amendment, specifically, the due process and equal protection clauses:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The equal protection clause states that the same standards of law must be applied to everyone, and obviously laws that harm one group of people would fail the test created by the equal protection clause. The concept of due process is something inherited from British political institutions, dating back to the Magna Carta of 1215. The idea of due process states that government must have sufficient reason, and must follow established rules, before it can deprive an individual of their rights. In a modern context, the idea of due process can be broken down into procedural and substantive aspects. Procedural due process establishes formal rules followed by government, and includes things like a warrant to arrest or search someone's property must be obtained; before being charged with a major crime a person must be indicted by a grand jury; that individuals have a right to a trial by jury, that in turn must render a unanimous decision, all of these are procedural aspects of due process, as are prohibitions against torture and cruel and unusual punishment, especially as a means of gaining a confession. If authorities are to gain intelligence they must do through legal means.

However, as many like Gore Vidal have argued, with the war on terror, and legislation like the PATRIOT Act, supported by courts, the notion of due process is essentially hollow. Anyone suspected of being a terrorist can now be detained for an indefinite amount of time, with no contact with family, lawyers, or anyone, and can be tortured, or subjected to Orwellian sounding "enhanced interrogation techniques," including "whistleblowers" like Chelsea Manning, and in all likelihood Julian Assange.
https://www.youtube.com/watch?v=czD_4XUSIok

Procedural Due Process: Rules are followed

·      Warrants—4^th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

·      Due Process—5^th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

·      Trial by Jury—6^th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

·      No Torture—8^th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Substantive Due Process: Does the government have a good reason to deprive someone of liberty? 

      Freedom of contract (Lochner v. New York)

·      Right to custody (Troxel v. Granville)

·      Right to privacy (Griswold v. Connecticut)

·      Right to marriage (Loving v. Virginia)

Most of the major Supreme Court cases are not about issues of procedural due process, but substantive due process, which asks whether or not the government has a good reason to deprive someone of their rights. In many cases, the Supreme Court has said no, and has defined more rights than originally specified in the Constitution, since the 9th amendment mentions "unenumerated" rights that are not named. In some cases, maybe, you want the court to say yes, like the issue of unlimited financing of political campaigns, or corporate ownership of public goods and services. Many of the rights we enjoy today are a result of rights implied by the Constitution, but defined by judicial review through concrete examples. The notion of substantive due process then guides the process of judicial review, which itself has a defined procedure it follows, applying "strict scrutiny" in only the most important cases:

When deciding on the constitutionality of laws, the judges apply what is called "Judicial Review." When they review a law, judges ask several critical questions to help them determine legality. Judicial Review can be broken down into different levels:

·     A. Rational basis review: Questions is the law “rationally related to a legitimate government interest”?

·      B. Intermediate scrutiny: Also questions government interest, but also if a law is based on substantial evidence. First used in cases of gender discrimination in 1976: https://www.oyez.org/cases/1976/75-628

· The highest level is:  
      C. Strict scrutiny: asks three questions the government must prove

1.     compelling government interest 

2.     narrowly tailored for the goals of the law

3.     least restrictive means

Brown v. Board of Ed, Loving v. Virginia, and Roe v. Wade were all decided using strict scrutiny. 

The judicial branch continues to play an important role in protecting the rights of minorities (including business interests), however it does raise the question of whether the courts are too independent of the majority will, as argued by Jamal Greene. With life terms for federal judges and lack of accountability through elections it is relatively easy for the courts to ignore or defy popular will. The recurring question that will always be associated with the courts are what is the proper balance between the independence of the judges and the demands made by popular majorities?

Some of the major issues the court will now have to decide, will be the legality of DACA (Deferred Action for Childhood Arrivals), whose legal basis is Plyler v. Doe, and in the Equal Protection Clause of the 14th amendment. Other issues of concern: abortion, employment discrimination against LGBT people, gun rights, and  surveillance and policing over ordinary citizens. This is even more controversial given the circumstances of the appointments of Justices Gorsuch and Kavanaugh.

The legal system will continue to be a highly contested area in political life. On the one hand, the concepts of law and justice are indispensable in modern society, but on the other hand, these concepts can always be used to conceal power relations between different groups in society, and arguably law cannot exist without some notion of power backing it up. These struggles for power take shape in everything from how the laws are constructed, how they are interpreted by courts, especially due process, and even appointments to the judiciary are now highly politicized events.