The Breakfast Table

Over and Out


Thanx for that sign-off. As a conservative judge that’s a compliment particularly appreciated from the head of the ACLU. And many thanx for recommending Profiles in Courage. I will certainly pick up a copy for myself and my sons. You will be pleased to know that the two ACLU publications you sent my son at Yale some years ago are still in active use, as he keeps the now dog-eared copies on his bookshelf and consults them regularly.

Regarding your comments about the Communications Decency Act, here is what I found most troubling. Shortly after it was passed, I was on a panel with a Member of Congress who had been actively involved in passage of the CDA. He admitted quite candidly that everyone who worked on it knew that it would be held unconstitutional by the courts, but they felt the need to do something. And here is my problem: Aren’t all public officials sworn to uphold the law, including the United States Constitution? It seems to me that this imposes an affirmative obligation on Members of Congress and the President not to enact legislation they believe to be unconstitutional. The idea that they will pass a law believing it to be unconstitutional because the courts will fix the problem seems like a betrayal of the oath of office. Our system of checks and balances relies on the best efforts of public officials in all three branches of government to avoid unconstitutional action. This, I would have thought, meant that one does not vote for or sign a law one believes violates the Constitution, and in the case of the Executive, one does not enforce such a law once it is on the books. I’m afraid that many public officials are not aware of this responsibility and rely instead entirely on the courts to preserve the Constitution.

A final word about judicial elections in the state courts. I agree with you that they are very troublesome. I find them particularly so where judges are given the responsibility to impose sentence in capital cases, as happens in some states. It seems to me that it would be very difficult for a judge to exercise independent judgment in a capital case if he then has to face a contested election where an opponent will parade the judge’s failure to impose a death sentence as proof that the judge is soft on crime.

I can’t tell you how much I’ve enjoyed our exchange this week. Hope to see you and Eli next time I’m in New York. I hope you will have time to visit next time you’re in Los Angeles.

And keep up the good work, both in terms of your scholarship and your stewardship of the ACLU.

Over and out.

Ciao. AK