Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University. In 2019-2021, he served as the Director of the State Department’s Policy Planning Staff, executive secretary of the department's Commission on Unalienable Rights, and senior adviser to the...
During the 2004 presidential campaign, one principal plank of George W. Bush's domestic platform was reforming tort law, which includes class action lawsuits, asbestos liability, and medical malpractice liability. President Bush believes that tort law as it now stands permits trial lawyers to take advantage of good companies, driving up the costs of doing business for everyone. Others believe that existing tort law allows consumers to protect themselves against bad companies. Which is it? And should President Bush be given the tort reforms he wants? Peter Robinson speaks with David Davenport and Alan Morrison.
In October 2001, in response to the terrorist attacks of September 11, Congress passed, and President Bush signed, the USA Patriot Act. The law is intended to prevent future terrorist acts by enhancing various law enforcement tools. Critics argue that the Patriot Act is a dangerous infringement on American civil liberties. Now, more than two years after the passage of the Patriot Act, do we have any evidence that the critics are right? For that matter, do we even know whether the Patriot Act is working to deter terrorism? Should the Patriot Act be allowed to expire, or should its provisions become a permanent part of the war on terrorism?
In late 2001, in response to the terrorist attacks of 9/11, the Bush administration proposed the USA Patriot Act, which gave law enforcement agencies expanded surveillance and intelligence-gathering powers. Congress overwhelmingly approved the Patriot Act on the condition that most provisions of the act would expire in 2005. President Bush now wants all provisions of the act extended. Should they be? Or are the provisions dangerous and unnecessary infringements on our civil liberties? Peter Robinson speaks with Jenny Martinez and John Yoo.
On March 14, 2005, a California Superior Court judge ruled that the state's ban on same-sex marriage violated the state constitution. Although the decision is certain to be appealed up to the California Supreme Court, California may now be on the road to joining Massachusetts in legalizing gay marriage. Did the Superior Court judge decide correctly? Just how compelling are the constitutional arguments for and against gay marriage? Peter Robinson speaks with Terry Thompson and Tobias Wolff.
Did the framers of the United States Constitution intend that the Supreme Court be the sole and final interpreter of the Constitution, with the power to place binding decisions on the executive and legislative branches? Or did they intend that the Supreme Court have the final say only on the legal cases that came before it, thus permitting the executive and legislative branches to have wide latitude in interpreting the Constitution for themselves? The former view, that of judicial supremacy, is the dominant view of the Supreme Court today, accepted, for the most part, both within government and in society more generally. Is this view supported by the Constitution? If not, why and when did it arise? Should we support judicial supremacy, or is it time to rein in the Supreme Court?
According to recent polls, instructors at American universities are overwhelmingly liberal: 72 percent of faculty members describe themselves as liberal, whereas only 15 percent call themselves conservative. Some critics charge that this ideological imbalance has created a code of political correctness that inhibits freedom of inquiry and expression in our universities. Is this true? And if so, what should be done, or can be done, about it? Peter Robinson speaks with David Horowitz and Graham Larkin.
The past decade has seen the emergence of an increasingly vocal animal rights movement in this country. Although many of the specific goals of the movement have to do with promoting the humane treatment of animals, the underlying argument is that certain basic legal rights should be extended to animals as well. Should we recognize that animals have legal rights, or should we continue to regard animals as property, as resources to use as humans see fit? Just what rights, if any, should animals have? And how could these rights alter the relationship between humans and the rest of the animal kingdom?
It's been more than 25 years since the Supreme Court reinstated the death penalty in 1976. For most of that time, the number of executions in this country climbed steadily higher. In the past several years, however, the death penalty has come under increasing criticism. Executions have fallen nationwide from a high of 98 in 1998 to 66 in 2001. Two states, Illinois and Maryland, declared moratoria on the death penalty over concerns that the death penalty could not be administered fairly. Is the death penalty immoral in and of itself? If not, is it unconstitutional? What is required to ensure that the death penalty is administered with fairness, justice, and accuracy?
Following the September 11 terrorist attacks, Congress passed and President Bush signed the USA Patriot Act—legislation intended to thwart the threat of domestic terrorism. Critics were quick to denounce USA Patriot as a dangerous expansion of government power at the expense of our civil liberties. Are the critics right? Or can we win the war on terrorism without sacrificing our civil liberties here at home? And what has the American experience in earlier crises, such as the Civil War and the two world wars, taught us about balancing national security and personal freedom?
The First Amendment of the Constitution declares in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What did this amendment mean to the founders who wrote it? Did they intend to establish an inviolate "wall of separation between church and state"? Or was their intent instead to merely preserve religious freedom and prevent the establishment of a national religion?
There are often said to be two competing schools for interpreting the meaning of the Constitution. On one side are those who believe that the meaning of the Constitution must evolve over time as society itself changes. On the other side are those who insist that the original intent of the framers of the Constitution—what they wrote and what their intent was in writing it—is all that matters. Robert Bork is firmly in the latter school. We asked him to explicate his understanding of the U.S. Constitution, using recent Supreme Court decisions as case studies.
On December 12, 2000, the Supreme Court of the United States brought an end to thirty-six days of dramatic vote recounts and legal challenges in the state of Florida. The decision let stand the initial results of Florida's election, which gave the state's electoral votes, and thus the Presidency, to George W. Bush. What was the legal justification for the Supreme Court's decision? Should the Court have intervened in the first place? And what precedent did the Court create for future elections?
In March 2002, President Bush signed into law the Bipartisan Campaign Reform Act, better known as the McCain-Feingold Bill. The law bans political contributions known as "soft money"—that is, money from corporations, unions, and other organizations given to political parties for "party-building activities," thereby skirting campaign contribution limits. The Supreme Court has now taken up McCain-Feingold and will determine whether all or parts of the act will be upheld or overturned. Are soft money bans legal? Or do such campaign finance restrictions infringe on freedom of speech? Just how should the Court decide?
Do enemy combatants in the war on terror have any legal rights? The United States now holds more than 650 persons captured during the war on terrorism at our naval base in Guantanamo, Cuba. The government is holding them indefinitely, without charging them and without offering them access to American courts or legal counsel. Is this legal? Do federal courts have jurisdiction in this matter, or do these detainees exist completely outside of the American legal system?
As required by the Constitution, the president of the United States is elected not by the national popular vote but by the vote of the Electoral College. In the Electoral College, each state receives as many votes as it has members of Congress. Because every state has two senators and is guaranteed at least one House member, votes of small states count more heavily than votes of large states. Has the Electoral College served the nation well? Or should it be abolished and replaced by a system in which every vote counts the same? Peter Robinson speaks with Jack Rakove and Tara Ross
In the summer of 2002, the Supreme Court will announce its decision on a Cleveland school voucher case that many are calling the most important case on educational opportunities since Brown v. the Board of Education in 1954. In the Cleveland vouchers program, 96 percent of the participating children use government-funded tuition vouchers to attend religious schools. Is such an arrangement constitutional, or does it violate the establishment clause of the First Amendment, which has served as the constitutional basis for the separation of church and state? Just how should the Supreme Court rule, and what effect will its ruling have on the future of vouchers in the United States?
When the Constitution of the United States was ratified in 1789, the infamous "three-fifths clause" gave the southern slaveholding states disproportionate power within the federal government. To what extent did this southern advantage help the southerner Thomas Jefferson win the presidency? And to what extent did Jefferson, author of the phrase "all men are created equal," use the power of his presidency to preserve and perpetuate the institution of slavery?
A case currently before the Supreme Court challenges the constitutionality of the Texas Homosexual Conduct Law, which in 1974 legalized heterosexual sodomy but not same-sex sodomy. Does the Texas law violate the constitutional rights of homosexuals, or are states permitted to pass such laws if they choose? If the Supreme Court does strike down the Texas law, what implications will that have for other civil rights that gays and lesbians are seeking, such as same-sex marriage?
Should property owners be compensated for the effects of government regulation? According to the Fifth Amendment to the Constitution "No person shall … be deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation." But what exactly is a property right and what constitutes a taking? Seizure of land by the government may be a taking, but what about environmental or zoning regulations that place restrictions on land use? With one such taking case already before the Supreme Court, the legal battle over these questions could alter the very nature of the relationship between the rights of the individual property owner and those of society as a whole.
Given recent trends at both local and federal levels, most notably the Supreme Court decision striking down the Texas antihomosexual sodomy law, it would appear that legal recognition of gay marriage may be just a matter of time. Should gay marriage be granted legal recognition? Are same-sex couples who are not allowed to marry under current law being denied equal protection of the law? How would recognition of gay marriage alter the traditional purpose of marriage? And would gay marriage erode support for families or strengthen it?