The Kansas Education Funding Case and Constitutional Democracy

(Co-authored with John Rury, Professor of Education at the University of Kansas – published in the Huffington Post, Jan. 16, 2015).

brown-v.-Board2The ongoing debate in Kansas over school funding is important not only for the state’s education policy, but also for how we think about our democracy. Controversy was rekindled at the end of December when a three judge panel of the District Court in Shawnee County issued a judgment declaring the legislature’s current funding formula inconsistent with the Kansas Constitution. The panel noted that the formula was both inadequate and inequitable, and that as much as $802 million in additional resources for public education could be required for the legislature to meet its constitutional obligations.

Echoing other Republican legislators and conservative pundits, Senator Steven Fitzgerald of Leavenworth was quoted in the Kansas City Star describing the ruling as “terrible,” adding “people who voted for their representatives aren’t going to be too happy with the unelected judges saying their money has to go more into the schools.” This suggests that courts should be subordinate to the majoritarian legislature, which in turn should have complete discretion over how, or even whether, to fund education for everyone.

But this argument misapprehends the nature of constitutional democracy. As conceived since the nation’s founding, constitutions are understood to provide the legal framework for democratic government, distribute political authority among its branches, enshrine rights, and lay out the fundamental values and principles by which to live for generations to come. Given this, other laws and government action must be consistent with the constitution, or be deemed invalid. … Read more…

When Should We Violate International Law in Order to Enforce It?

(Published in The Huffington Post, September 10, 2013)

Lady Justice Bronze_full

The looming military strikes on Syria are being justified as necessary to enforce and maintain a fundamental international law norm, namely the prohibition on the use of chemical weapons. It is quite clear that in the current situation, and in the absence of U.N. Security Council authorization, such strikes will also themselves violate a fundamental norm of international law, namely the prohibition on the use of force against sovereign states (see here for my own discussion of the legality issues).

At first blush the argument that one should violate the law in order to enforce it seems absurd, encouraging a counterproductive form of vigilante justice at best. But it does raise the question — are there times when we should violate international law in order to enforce it? Or more explicitly in the Syrian context: under what conditions and according to what criteria would it be justifiable to violate the fundamental rule prohibiting the use of force against sovereign states, in order to enforce the fundamental rule prohibiting the use of chemical weapons? Are there some practical responses that might provide some guidance for policy makers?

It must be acknowledged that there are some situations in which we accept that it would be justifiable to violate the law, or at the very least in which the circumstances would mitigate against our full condemnation of a violation. Such justification, in the form of exceptions, defenses, and reduced punishment, is indeed built into most domestic legal systems, and is part of most conceptions of justice. … Read more…

International Law and U.S. Military Strikes on Syria

(Published in the Huffington Post, Aug. 31, 2013).

Cruise missile launchThere has been insufficient analysis, by both policy makers and the media, of the legality of the looming use of military force against Syria. As usual, the law seems to be beside the point. But this not only ignores a key factor, but is rather paradoxical given that one of the primary justifications for the strikes is that they are to punish the Syrian government for its violations of international law. Legality should be an important factor in the decision-making process, because if the use of force is itself not lawful, then it represents nothing more than vigilante justice, likely doing far more harm than good to the international legal order.

There is little doubt that the Syrian regime has committed war crimes and crimes against humanity against its own people over the last two years. If it is proven that the Assad regime used chemical weapons in the attack last week, that would constitute a separate and grave violation of international law. All of this screams out for a response by the international community.

The reality, however, is that these crimes do not justify a unilateral use of force, and the contemplated American military strikes would not be lawful. Indeed, the Obama administration, while tossing out platitudes about complying with international norms, has not even tried to make the legal case justifying the use of force. … Read more…

Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…