The Rightness of a Right?

In recent weeks, a great row has exploded over an opera being performed at the Metropolitan Opera House in New York.  The play, The Death of Klinghoffer, loosely portrays the events surrounding the 1985 Palestinian terrorist takeover the Achille Lauro in the Mediterranean.  The event led to the execution of a disabled American Jew who was subsequently dumped into the waters in his wheelchair.  The children of the late Mr. Klinghoffer, and many others, are outraged while First Amendment advocates say that it is an acceptable form of protected speech.

The question with a situation like this opera, which I have not seen and my memory of the actual event only cursory, is a little different for me than it might be for others.  In a country where we have free speech the legality of such an opera is not in question.  Of course, the makers of this opera and the Met are certainly within their rights to put it on.  The real question with things like this is often, is it right to do it?  When one questions the correctness of doing something, and not the legality of it, such arguments are often the target of general mocking as an example of provincial values.  There is also decency and awareness that seems to be lacking. 

I should say that, from time to time, a society should be shocked and outraged.  It serves as a reboot to our obligations to our fellow man and a renewed sensitivity toward how others perceive things.  When American artist Robert Mapplethorpe produced an image of a crucifixion within a jar of urine, it ignited a conversation that was ultimately, one could say, good for our society.  Yet, advocates for such actions miss the point when they bring up freedom, artistic or otherwise.  Freedom is not some exercise of one’s id – free of judgment and consequences.  This is what makes the opera’s advocates’ objection to the criticism a bit strange. 

I recall the fiasco of the Dixie Chicks and their criticism of the president of the United States during the onset of the Iraqi War.  Similar to the recent opera incident, Natalie Maines flew off the handle at the president in a foreign country and bemoaned those who fired back.  The incident effectively ended a great career of talented musicians.  Once more, there is a disconnect between the right to do something and its correctness.  The other point missed was the argument about the values that surround our rights.  With each of our rights is an underlying principle of a humane society.  Because Ms. Maines chose to take a rather one-dimensional look to the reaction of her pablum, she failed to understand the issue.  What will become of this new manifestation of the same problem? 

At the risk of being melodramatic, I think our society is in trouble because of our unwillingness to stand up to certain things.  Again, I’m not speaking to the legality of the Met (who cancelled the televised broadcast of the opera for fear of it coming across offensive) to put on such an opera but whether it is a good idea.  So much of the typical offenses committed throughout a typical day are not a question of the law but one of taste and decorum.  This can range from profane music being played loudly to questionable outfits worn by high school students to a parent yelling and screaming at their child in public.  None of these actions would get someone arrested but it goes to our understanding of our situation and respect for others. 

As for the opera, I get that art is designed by its very nature to be controversial and thought-provoking.  However, offensive art is no different from offensive voices or actions in the political arena.  Mr. Klinghoffer’s children rail against, in their opinion, the minimization of their father to a simple tool for terrorists.  Others, like lawyer Alan Dershowitz and First Amendment expert Floyd Adams are horrified at the moral equivalency drawn by the opera between the Palestinian diaspora and the Holocaust.  No matter the arguments, there are some obvious issues with the production that should have led people to ask some obvious questions.  It is a pity that never happened.

The Making of a Judicial Giant

It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each….This is of the very essence of judicial duty.
                Chief Justice John Marshall, Marbury v. Madison, 1803

From time to time, the Supreme Court has been the subject of one of my articles.  I love the Supreme Court and am endlessly fascinated with the issues they discuss.  Within the story of the Supreme Court, I’m most intrigued with the career of John Marshall.  He was the third chief justice of the Court and widely considered the most important judicial figure in the history of the United States.  He is responsible for the creation of the modern court and its powers.  However, like most things dealing with the law, one’s career is often centered on a single case.  For John Marshall, that case was Marbury v. Madison in 1803.

In the waning days of the Adams administration, having been defeated by the Democratic-Republican Thomas Jefferson, the Federalist president hurriedly worked to fill a slew of vacant federal judicial positions.  President Adams had been negligent to do so earlier but worked overnight to complete them before leaving the White House for good.  He stacked his pile of “midnight judges” appointees on his desk and assumed that the incoming president of a different party would finish the process.  Upon entering the White House, President Jefferson and his Secretary of State, James Madison, saw the appointees and pondered.  Are they required to fulfill these Federalist positions?  They answered no and likely threw them away. 

One of the judges in question, William Marbury, wanted his post – justice of the peace of Washington, D.C.  At the time, the capital was a sleepy agricultural community with little for a justice of the peace to worry about.  He sued the government and Secretary Madison for his job on the basis of the Judiciary Act of 1789.  In particular, he called for a writ of mandamus – an order for the government to do its job.  For Chief Justice Marshall, the strident Federalist who wants and needs a stronger government for the good of the Court, his sympathies are towards Marbury but he has a problem.  With the little respect or prestige of the Court, if he ruled in favor of Marbury and ordered the president to appoint him, President Jefferson would simply ignore him.  However, in reviewing the law, he sees a chance to gain some much needed credibility for the Supreme Court. 

As John Marshall laid out his ruling, he began by saying that Marbury was appropriately appointed and should be given his position.  Nothing in the Constitution limits when a president can make judicial appointments and therefore, the post should go to Marbury.  As the audience begins to think that the Federalist judge has ruled in favor of the Federalist plaintiff, Marshall shocks by attacking the Judiciary Act of 1789.  In short, Marshall ruled that the portion of the law used by the plaintiff was unconstitutional and therefore, Marbury’s case and basis was invalid and his petition denied.  Jefferson was now in a bind.  If he did not accept Marshall’s opinion, he would be compelled to give Marbury his position, with many other midnight judges likely to follow the same path.  By accepting the Court’s opinion, he bestows upon the Court the ability to review the actions of government and determine its constitutionality.  In short, John Marshall took one step back to take two steps forward at a later date.  It worked and the Court was given an important power over the other branches – judicial review.   

The Supreme Court has the authority to review not only the actions of the government but those of the lower courts, both federal and state.  Over the course of his career, Marshall’s decisions would establish a strong federal government in the areas of interstate commerce, international contracts and on the question of federal law superseding state law.  Given the impact that he had, it is surprising that he is not more well-known.  Hopefully, I’ve changed that to some degree with this little story.  His life and his work is worthy of attention and study.