Volume 79, Number 6 (September 2006)
Despite over a quarter century of affirmative action policy, public endorsement of the practice by leading American institutions, and validation by the United States Supreme Court, the relevance of race in university admissions and hiring decisions remains a persistent source of conflict. Disagreement, however, has not produced a particularly robust or constructive public dialogue on this issue. Indeed, public conversation regarding the appropriateness of race preferences remains mired in an unhealthy and unproductive impasse.
The breakdown usually, but not always, occurs along traditional ideological lines. Progressive proponents generally endorse the use of race preferences as a measured response to the perceived malign status quo of American race relations. They highlight myriad ways in which individual and institutional practices have, over time, worked to entrench the subordinated status of racial minorities and point to race preferences as an example of the kind of robust, substantive, and race-conscious response that “justice” demands. Conservative opponents generally acknowledge persistent racial disparities in health, wealth, and society, but point to substantial advances in modern race relations as a testament to the virtues of colorblindness and formal racial equality – virtues threatened by the reliance upon race when dispensing educational and employment opportunities and other social goods. Impassioned disagreement is inevitable, given the extended legacy of racial oppression, conflicting perceptions of racial injustice, and divergent visions of what a racially just society entails. What might have been the subject of robust exchanges of ideas, however, now cycles stubbornly and uncomfortably within a caustic, ideological cul-de-sac.
79_1231
The treaty lives a double life. By day, it is a creature of international law, which sets forth extensive substantive and procedural rules by which the treaty must operate. When these rules prove susceptible to dispute – as is the case with treaty reservations, for example – international lawyers vigorously debate both how to clarify the rules and who has the authority to do so. By night, however, the treaty leads a more domestic life. In its domestic incarnation, the treaty is a creature of national law, deriving its force from the constitutional order of the nation state that concluded it. Within the United States, therefore, the Constitution governs. Just as we look to international law to discern treaty rules on the international plane, so too must we look to the Constitution for substantive or procedural rules by which the treaty functions within the U.S. legal system.
In contrast to international law’s more comprehensive framework, the Constitution contains only three express commands with respect to treaties: (1) the federal government makes treaties; (2) the judiciary can hear cases concerning treaties; and (3) treaties trump state law. First, in vesting executive power in the president, Article II assigns him the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” At the same time, Article I denies states the right to “enter into any Treaty, Alliance, or Confederation.” Second, Article III extends the judicial power “to all Cases, in Law and Equity, arising under… Treaties made, or which shall be made, under” the authority of the United States. Third, in Article VI the Constitution mandates that, like federal law, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
79_1327
The United States Supreme Court, with its black-robed justices and its marble columns, has long been regarded as the most formal and opaque branch of the federal government. While the president and the members of Congress have deliberately wooed the public with election campaigns that attempt to humanize the candidate, the justices have preferred to maintain the Court’s traditional aura of remote dignity by steadfastly refusing to televise its proceedings. Even the current willingness of some justices to present themselves directly to the public through extrajudicial writings and television interviews has not yet erased the public image of the Court as a solemn institution. When a legal scholar recently tracked the incidence of humorous exchanges during the Court’s oral arguments, the New York Times considered the idea of laughter at the Court worthy of a front page article. Yet even if there have been few occasions for laughter in the courtroom, the Court itself has in the past half century become a consistent source of humor in the pages of another, less solemn American institution, The New Yorker magazine. The emergence of the Court as a reliable subject for New Yorker cartoons suggests two related developments: the growing public awareness of the Court’s role in American life and the parallel willingness of the public to appreciate – and laugh at – the impact of the Court’s jurisprudence on its own domestic life.
79_1397
At 9:00 PM on April 7, 2003, Fox Broadcasting (“Fox”) aired the penultimate episode of Married by America, a reality television show that allowed the public to select potential spouses for its contestants. Six minutes of the episode detailed the remaining two couples’ bachelor and bachelorette parties, during which strippers attempted to “lure participants into sexual activities.” Of the five million people who watched the broadcast, ninety complaints were filed with the Federal Communications Commission (“FCC” or “Commission”), the government agency that regulates television communications. In October 2004, the FCC determined that the six-minute segment contained explicit and patently offensive depictions of sexual activities. It thus determined that the content was indecent and in violation of federal law. For this violation, the FCC penalized both Fox and 169 Fox affiliates by issuing a Notice of Apparent Liability for $1,183,000 in fines. At the time, this was the largest proposed fine, or “forfeiture,” in FCC history.
79_1451
The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.
79_1499
