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Post Bernie Sanders and Native Americans; Death of Justice Scalia
Created by John Eipper on 02/15/16 2:00 PM

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Bernie Sanders and Native Americans; Death of Justice Scalia (Bienvenido Macario, USA, 02/15/16 2:00 pm)

I saw this on my Facebook page:


AIM Leader Clyde Bellecourt Confronts Bernie Sanders on American Indian Treaties

By Levi Rickert / Briefs, Currents / 13 Feb. 2016


Excerpt: MINNEAPOLIS - Clyde Bellecourt, 79, co-founder of the American Indian Movement, attended the Black America Forum in Minneapolis on Friday and told Senator Bernie Sanders, candidate vying for the Democratic Party's presidential nomination:

"I get angry when I hear all you (politicians) never say a single word about Native People!"

Bellecourt asked Sanders if he would honor treaties made between American Indian nations and the federal government.

"I will do everything I can to redress that," said Sanders.

Never afraid to express his mind, Bellecourt told Sanders: "America is scholastically retarded about the history of Native Americans."

Sanders attended the Black America Forum as a way to attract more votes away from Hillary Clinton, who has a long history of having support among African American voters.

In the comment section on the above, I found a lot of comments praising Sanders as the only presidential candidate to interact with Native Americans.

Here are some:

Kaitlyn Jeffers - In fairness, a few months ago I looked into both Hillary and Bernie's campaigns and Hillary's turned up nothing except an inactive Facebook page called "Native Americans for Hillary." Whereas the Sanders campaign has a page dedicated to Native American Rights. Not saying that I believe everything politicians promise, but I don't think Sanders is the one to be attacking for lack of empathy.

Cain Melinda - Bernie Sanders has acknowledged Natives more then any other politician! Feel the Beeerrrnn!

Rachael Perney - Sanders does have a track record with Native American support and had started a task force before Clyde questioned him. Hillary is not the change people are looking for Feel The Bern 2016

Cody Morgan - With Bernie being Jewish and having ancestors that were in concentration camps, I would be surprised if he didn't push for native treaties to be honored.

As for me, I wrote: Even the late great Chinese leader Deng Xiaoping noticed how US presidents speak with forked tongues (maybe shredded tongue is a better description). There is no law that holds politicians accountable when they break their campaign promises. It seems better in countries where there is a constitutional monarchy and a parliamentary system.

Deng said: "The United States brags about its political system, but the President says one thing during the election, something else when he takes office, something else at midterm and something else when he leaves" - Deng Xiaoping

By the way Justice Antonin Scalia passed away. I wonder who Pres. Obama would nominate?

JE comments: Justice Scalia's death in very tangible ways will define the rest of the presidential contest. President Obama has vowed to fulfill his Constitutional obligation to name a successor and put her/him up for a Senate vote. I see almost no scenario by which the Republican majority will approve any candidate. They will put their hopes on a Republican taking over the White House.

So here's a thought exercise: would you accept the President's nomination, knowing that your lame-duck candidacy is almost certainly doomed?

I can think of only one Democrat who could win Senate confirmation: Hillary Clinton.

Here are NBC's thoughts for the "short list":


One name that was left off:  Should this year's process be stalled and a Democrat elected in November, why not Barack Obama?

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  • Conspiracies Surrounding Scalia's Death (Francisco Wong-Diaz, USA 02/16/16 4:51 AM)
    Well, it seems that we might have to add the "who killed Scalia?" webpage to the ones about the JFK assassination.

    John Eipper's suggestion that either Hillary or Obama might be Scalia's possible replacement is fuel for the conspiracy buffs, since either event would seal the ongoing polarization of the country.

    Another line of conspiratorial theories suggests that the Obama people are inviting a 9/11 sort of attack by ISIS that would lead to a state of emergency, with Obama suspending the elections indefinitely. Some point to the increasing neutralization of aggressive police action and their integration in the training of our armed forces for urban warfare.

    The testimony of CIA director Brennan on 60 Minutes indicating that Obama's policy is not to prevent but to respond to an eventful ISIS attack is rather explanatory.

    See below:



    JE comments: Let me clarify that I wasn't advocating the naming of Hillary or Obama to the Supreme Court. I merely suggested that Hillary would be the only Democratic nominee the Republican Senators would confirm--to remove her from the presidential contest.  Justice Obama was a nod to William Howard Taft's second career in the SCOTUS.

    The "suspend the elections" theory is extremely far-fetched.  There is no precedent whatsoever for this in the US, even in 1864 when the nation was hemorrhaging from the Civil War, and Lincoln had already suspended many personal liberties.

    Here's an uncanny coincidence:  the first-ever reference to Scalia on WAIS touched specifically on his predilection for hunting.  Scalia died in a West Texas hunting lodge:


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    • A Scalia Quote (Richard Hancock, USA 02/16/16 1:39 PM)
      The following is a quote from the Feb. 15 Wall Street Journal from their column, "Notable & Quotable."

      From a Sept. 7, 1999, Journal op-ed by Supreme Court Justice Antonin Scalia, who died Feb. 13 at age 79, on the most significant development in the law over the past millennium:

      "My selection of democratic self-government as development of the millennium assumes--perhaps optimistically--a continuing appreciation of the need for these structural checks. It also assumes, as the precondition for that appreciation, what our Framers would have called a liberal disposition on the part of the people: a reluctance to impose their views by law in the face of significant opposition, a reticence to require others to love all that they love and to hate all that they hate. A society that feels passionately about everything, or that lightly--without a sure and certain need--adopts laws obnoxious to many of its members, cannot sustain democratic self-government, and is fit only to be ruled by others.

      "The point was put well by the great Learned Hand, in his comments to a group of newly naturalized Americans: 'The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.'"

      All that I can say to the above is "Amen."

      JE comments: Justice Scalia gave the impression that he rarely wavered in his definition of what is "right."  He was less inflexible in his personal life, though.  I was surprised to learn of his close personal friendship with Justice Ruth Bader Ginsburg, probably the most liberal member of the Supreme Court.  They often socialized and vacationed together.  Ginsburg has described Scalia's death as the loss of her "best buddy."

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    • Justice Scalia (Francisco Wong-Diaz, USA 02/17/16 12:31 PM)
      In reference to John's reply to my post of 16 February:

      As some media and national politics pundits have just noted, it is far-fetched to think that the Senate GOP would put Hilary or Obama on the Supreme Court. Most likely, the Democrats would support a consensus GOP Senator like Orrin Hatch.

      In the same vein, if a weapons of mass destruction attack like the one that CIA's Brennan sees as inevitable were to occur the day or weekend before the election, would it be far-fetched to cancel the elections?

      Lots of far-fetched things have been happening in this century. Who would have predicted that a Black man named Barack Hussein Obama would be a two-term US president just a few years after the Jihadist attack on 9/11. Now that is far fetched!

      Returning to Justice Scalia, I am not surprised that our left-leaning editor did not recognize that the illustrious Justice Scalia was able to disagree on the issues while maintains friendship with his peers. I recommend to all a memorable video interview of Scalia and Ginsburg by Marvin Kalb in 2012. It will help the most immature among us.

      JE comments: I've seen the interview, and the Scalia-Ginsburg friendship is a heartwarming attraction of polar opposites. It's worth viewing.

      I never thought of myself as left-leaning.  Do I give that impression to the general WAISitudes? Rather, I see myself as a mugwump in the Hiltonian tradition, but with a greater appreciation (than Prof. H) for rock and roll.

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    • Justice Scalia (Tor Guimaraes, USA 02/18/16 11:12 AM)
      I hope my WAISer colleagues forgive me for trying to get a quick education at their expense, but I have a nagging intellectual problem.

      It is increasingly bewildering to me that everyone seems to have great personal and professional admiration for Supreme Court Justice Scalia. Personally he seems like a very interesting and fun guy to interact with.

      Professionally I feel great incompetence in judging his performance, so I really need help. The admiration for his brilliance as a judge and his decisions seems widespread, but did he not vote in favor of the disastrous Citizens United? What has this fellow done for the American people that I should know? What are the consequences of his great decisions in the Court?

      JE comments: De mortuis nil nisi bonum, so I'll limit myself to seconding Tor Guimaraes's question.  Is undoing a tradition of judicial activism an achievement in and of itself?

      President Obama will not be attending Scalia's funeral.  On this subject, see David Duggan (next).

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      • Antonin Scalia; Judith Kaye (David Duggan, USA 02/18/16 4:00 PM)
        What is it about Chief Executives' spurning the funeral services of judges of the highest courts of their respective domains?

        The White House announced recently that Pres. Barack Obama would not attend Saturday's funeral service for the Hon. Antonin Scalia. A month ago, Gov. Andrew Cuomo did not attend the memorial service for the former Chief Judge of the New York Court of Appeals, the Hon. Judith Kaye. If sins of omission are as telling of character as sins of commission, both implicit rejections speak volumes as to the character of these "leaders."

        I worked for Judge Kaye's firm, Olwine Connelly Chase O'Donnell & Weyher, in New York City from 1979-81, before Gov. Mario Cuomo named her to New York's highest court as his first appointment to that court. In so doing, she broke the glass ceiling on the court where Cardozo, Lehman, Pound, Andrews and Kent had sat, to name a few luminaries. She had no prior judicial experience, and had not been a judicial clerk, often a pathway to the bench. Instead, she had been a commercial litigator, originally at Sullivan & Cromwell, where she met her husband, and then at Olwine which she joined after bearing three children. A graceful and elegant woman, with a razor-sharp intellect, she became Olwine's first woman partner, and was one of the first woman partners at any of the "major shops" in The Apple. When then Chief Judge Sol Wachtler, who looked like a judge out of central casting (and later did some turns as a judge on "Law and Order"), resigned amidst a sex-scandal gone hopelessly wrong (he pled guilty to using interstate means of communication to transmit threats to a former fundraiser-lover: I can't make this up), Cuomo I named her to the top slot. As such she became the head of a judicial system that encompasses a lot of town courts and other minor judicial bodies where "justices of the peace" (read non-lawyers) can adjudicate cases. She found that anomaly deplorable.

        Judge Kaye swore in Andrew Cuomo as New York's attorney general, succeeding Eliot Spitzer who had been elected governor but then resigned amidst, you guessed it, a sex scandal (is there something in the water?). She was aged off the court in 2007, before Cuomo was elected governor. Why he failed to attend the memorial service (as a religious Jew, she had been buried shortly after her death) held at New York's Metropolitan Opera, when the families had been so intertwined, defies rational explanation. Instead, the ceremonies were emceed by Michael Bloomberg, whom she had sworn in as New York City's mayor shortly after 9/11.

        Equally inexplicable is Obama's decision not to attend Scalia's funeral Saturday (instead he will pay his respects as the bier is displayed in the Supreme Court's rotunda tomorrow--the White House will not confirm that he has a golf date Saturday). In more ways than appear on the surface, their two lives have parallel tracks. Both were the sons of immigrant fathers with scholarly attainment. Nino's father was a professor of Romance languages at Brooklyn College, and Barack's was pursuing graduate studies in economics at Harvard before returning to Kenya. Both attended Harvard Law School, served on its Law Review (Barack as its first African-American president or editor-in-chief), spurned judicial clerkships and went to the Midwest after graduation. Both taught at the University of Chicago Law School (not at the same time), though were on opposite ends of the ideological spectrum, suggesting that the U of C's "law and economics" philosophy is not as pervasive as believed.

        Scalia returned to Chicago a year ago, both to commemorate the founding of the Federalist Society which he midwifed while teaching here, and to tout his book, Reading Law, the Interpretation of Legal Texts. I attended the event but did not buy the book and at least as I recall, he did not entertain questions from the masses. If he had, I would have asked him whether he favored "open carry" of firearms as a permissible "original" understanding of the 2nd Amendment. Scalia had authored the Heller v. District of Columbia majority which "found" within the 2nd Amendment's "right of the people to keep and bear arms" a "personal" right not connected to the regulation of a militia. How ironic that he should die while on a hunting trip.

        Judith Kaye and Antonin Scalia, RIP.

        JE comments:  Several posts have come in about Scalia's achievements and possible legacy.  Next:  Cameron Sawyer.

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      • Justice Scalia's Legacy (Cameron Sawyer, Russia 02/19/16 3:55 AM)

        It is extremely important, crucially important, to separate the immediate policy effect of Supreme Court judgements, from their underlying legal and Constitutional significance. Just because a decision seems to embody good policy does not make it a good decision; nor does good policy automatically mean it's a good decision.

        The Supreme Court is not a legislative body, and is not charged with making policy. It would be quite terrifying if it were, because it is unelected, unfireable and unaccountable to anyone but itself, and restrained only by its own respect for the Constitution.

        The Court has been used, or has used itself, to make policy on matters where the legislature was unwilling or unable to act. Justice Scalia was a leader in the fight to stop this extremely dangerous, harmful, and anti-democratic tendency. He was the most powerful intellect on the Court in half a century, and the most influential Justice of our lifetime. He was a man of the greatest intellectual rigor and integrity, and also a man of great personal warmth and charm who maintained close friendships with people all across the political spectrum, notably with his ideological opposite on the Court, Ruth Bader Ginsburg, who in fact was his best friend. Her tribute to him is notable:


        He was a giant, and the Court, and the Nation, are much diminished by his untimely passing. I admit that I am quite surprised and dismayed that the President did not appear at his funeral.

        JE comments:  Justice Scalia's funeral will be tomorrow (Saturday).

        Has anyone in WAISdom seen Derrick Wang's comic opera Scalia/Ginsburg?  It is certainly due for a revival.

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        • Justice Scalia's Legacy (Francisco Ramirez, USA 02/20/16 6:35 AM)
          In response to Cameron Sawyer (19 February), it is extremely important, crucially important, to separate the immediate policy effects of Supreme Court judgements, from their underlying legal and Constitutional significance. Just because a decision seems to embody good policy does not make it a good decision; nor does good policy automatically mean it's a good decision.

          Justice Scalia pretty much made the same point on more than one occasion.

          I would like to offer two points by way of generating a reasoned discussion. The first is perhaps an obvious one: how does one determine what constitutes a good decision? What criteria enables one to distinguish between good and bad decisions? I think Scalia would have responded that the main criteria is fidelity to the constitution. That seems like a good answer, but upon further examination it begs the question: how is one to know whether this decision is more faithful than the alternative one? If there were clear-cut criteria, there would be unanimous decisions and no major breaks with precedent. It is precisely because there are at times 5-4 decisions and breaks with precedent that a thoughtful person would have to raise questions about criteria for deciding what constitutes a good decision.

          In his confirmation hearing, Chief Justice Roberts said that being a Supreme Court Justice was like being an umpire, simply calling balls and strikes, not actually being a player. Again, this seems like a good analogy, but in fact strike zones vary between the leagues and between umpires within the leagues. The best a player can hope for is an umpire with a constant strike zone. Scalia was consistent, but does that mean he made good decisions? Can one really determine what constitutes a good decision independent of its policy impacts or one's personal or political values? Can one certainly distinguish between arguments that are better framed than others? But a better debater is not necessarily evidence that one has generated a good decision (truth in advertising: I captained the debate team in my college for two years. I know from experience the difference between making a point stick and having a good point).

          So, if fidelity to the constitution is difficult to ascertain without recourse to policy impact and personal values, what are we left with? Wit? Razor-sharp intelligence? Elegant prose? A combative style that commanded attention? Or, should we just start from the premise that if one is an originalist, one makes good decisions. Scalia is reputed to have said that he was an originalist but not nuts. That should give one pause.

          My second point is to more closely examine the words of the sentence Cameron writes. Think of it as channeling my inner Scalia. We should separate the immediate policy effects from their underlying legal and constitutional significance. What if the policy effect was not immediate but rather long term? Was the policy impact of the separate but equal decision just an immediate one or did it justify racial segregation by more than half a century? In the next sentence do note the difference between seems to embody good policy versus the more categorical good decision. Here the reader is seduced by the possibility that the policy only seems good but not that the decision may only seem good. This son of a lawyer immediately grasped the underlying significance of these exquisitely crafted sentences.

          I look forward to Cameron's response. As always his posts are thought provoking.

          JE comments:  If I may simplify, I believe Francisco Ramírez raises two powerful questions.  First, that the "faithful to the Constitution" tenet is fundamentally an illusion, as evidenced by the large number of split decisions by the Court.  Second, one must distinguish between a "correct" decision in the legalistic sense and one that is good policy.  By this standard, Dred Scott and Plessy v Ferguson were "correct" decisions, but nobody today would deem them good.

          Next on this topic:  David A. Westbrook.

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          • Justice Scalia and the Constitution Revisited (Cameron Sawyer, Russia 02/21/16 5:10 AM)
            Thank God David A. Westbrook (20 February) answered Francisco Ramírez; it made me completely exhausted to even contemplate the issues raised by Francisco's post, which go to the whole nature of law and our Constitutional system.

            I wrote a few pages on these subjects, but have now deleted them, as I hadn't even managed to frame the question in those pages, and we have length limitations for WAIS postings.

            I would just like to hit the sound-bite issue:

            Is Constitutional Originalism like Biblical Literalism, as suggested by JE in a recent post?

            The answer is NO! They have nothing whatsoever to do with one another. In fact, they are pretty much diametrically opposed.

            Biblical literalists claim that the literal meaning of the words themselves hold the complete meaning of the Bible, and that everything in it is literally true. I think most reasonable people would agree that this is ridiculous. Constitutional Originalism, on the other hand, regards the Constitution as a law, which constrains in one way or another (Originalism is a very wide tent, as I will go into below) what the Justices can do. This is opposed to the "Living Constitution" school, which regards the Constitution as a "living" document with no really fixed meaning, a vessel into which the Justices can pour quite a lot of different ideas according to their ideas of what the law should be at the Constitutional level. These different points of view reflect different ideas about the role of the judiciary in our Constitutional system. Originalists believe that the judiciary should refrain from making policy, and should defer to the legislature so that policy-making has some democratic basis. The "Living Constitution" school believes that the judiciary should have the ability to take the initiative in the development of policy when the legislature is unwilling or unable to act.

            Both schools have respectable historical backgrounds--the judiciary in medieval England was an important political force which engaged in "judicial activism" as a counterweight to other political forces. Rarely just baldly making up new policy, but frequently protecting "traditional rights," which might be unwritten.

            "Living Constitution" adherents are mostly associated with left tendencies in our politics--very often people who think that many policy decisions are obvious, and who are impatient for the legislature to act. For example, capital punishment is obviously wrong, so why not just have the Supreme Court find a right against capital punishment in the Constitution, and be done with it? Why waste time with normal democratic decision-making? That's exactly what happened in Furman v. Georgia in 1972. But I think that a serious flaw in this point of view is that wise men may disagree on practically any policy question, and so if you charter the Supreme Court to decide such question instead of us, you will politicize an undemocratic institution, which will lead to all kinds of mischief. Actually, judicial activism need not be used only for Left causes, and historically has not only been used this way. An activist Supreme Court flummoxed Roosevelt for years, inventing new rights which various New Deal programs were found to violate. So judicial activism is a double-edged sword which cuts both ways.

            "Originalism" of some kind or another is probably the point of view of the majority of Constitutional scholars today, including many on the Left. But Originalism is a very big tent. Probably we would not even have the term "Originalism," if no one had proposed that the Constitution might have no constraining force at all--all interpretation of laws is "originalism" of some kind or another. "Originalism," contrary to someone's post on here, is not "strict constructionism," something which Scalia opposed as a "degraded form of textualism." It refers to the "original meaning" of the Constitution, which of course requires one kind of interpretation or another. Rather than going into the interesting variety of approaches, I will simply refer WAISers to the absolutely superb article in Wikipedia, which should be saved in some form or another in case it is rewritten later. https://en.wikipedia.org/wiki/Originalism .

            I will just say one thing on the matter--I am a firm "Originalist," as was Scalia, but I disagree with him on many things. I agree with Bert [David Westbrook], actually, that he despite his great intellect and high degree of intellectual honesty, Scalia was given to a certain amount of partisanship from time to time, which detracts from his otherwise magnificent record. I am an Originalist because I believe that the Constitution is a law, and that only if we regard it as a law, and interpret it the way we interpret laws, can we put the Supreme Court into a role which is consistent with our ideas of separation of powers and, indeed, democracy itself.

            However, there is no easy access to the original meaning of the Constitution (or any other law). Originalism offers no magic bullet, and even if we all agree about it at least in broad terms, that is no guaranty that courts will stay in their place. What's required here is not just law, but culture, and temperament. That is because however we look at it, in a Common Law system, judges have to fill in the gaps in legislation, and to apply old laws and old common law principles to new situations. Do they fill it with their own whims? Or do they try to implement, faithfully, the will of the people as expressed through the legislature? That's ultimately a question of culture, I believe, and I fear that in the poisonous atmosphere of partisanship which is destroying our political processes, our legal system may likewise be losing its essential cultural elements.

            There are those who believe that Originalism and the Living Constitution are not entirely contradictory of one another. There is a movement, well described in the above-linked Wikipedia article, to harmonize both schools in something called "Framework Originalism." I am not an adherent of this school, but it must be said that there is an important grain of truth in the idea, and in fact the general description of how Constitutional jurisprudence works is probably absolutely correct. Naturally, the Constitution is "Living," even if are serious about respecting it as a law. The Supreme Court is called upon to apply Constitutional principles to new situations, and not all the answers can be found in the document. The question comes back to temperament and culture--are the judges ready to make up whatever, just to reach a certain outcome which they think is good? Or do they try to keep to the original idea of the document, regarded as a law, and defer to our Constitutional processes, like amending the Constitution, or acts of legislature, for policy making?

            JE comments:  Detractors of Scalia would never agree that he actually adhered to his claim that the Courts should not set policy.  Go no further than Citizens United.

            This Hispanist is out of his league to debate legal theory with JDs like Cameron Sawyer, but I don't follow his distinction between Constitutional originalism and Biblical fundamentalism.  Followers of the latter would argue that the Bible is not only "truth," it is law as well.

            Francisco Ramírez (next) has also responded to David Westbrook.

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            • Constitutional Originalism and Biblical Fundamentalism (David Duggan, USA 02/23/16 9:44 AM)
              John Eipper inquired whether Biblical Fundamentalism and Constitutional "Originalism" were cut from the same cloth, on which Cameron Sawyer weighed in (21 February), claiming that they were not with a capital "N." With due respect, I'd like to take the contrary viewpoint.

              First of all, it has to be realized that the Bible and the Constitution are cut from and pertain to different realms. Regardless of whether one thinks that the Bible is the inerrant-and literal-Word of God, or a book of history, or a prescription for a moral life, or a fairy tale, or the written vessel for all that is necessary to our salvation (my own belief), what it is not is a blueprint for the operation of a civil government. There is no creation of different repositories of governmental power, no provision for amendment (indeed Rev. 22: 18-19 specifically counsels against additions to or subtractions from "this book," query whether that is "Revelations" or the entire Biblical canon), no recognition of the need to suspend certain provisions in certain cases (cf. Art. 1, sec. 9, cl. 2, suspending the writ of habeas corpus in cases of rebellion or invasion). Still, the Bible, like the Constitution, must be read (it is not ingested like a steak), and if read, it must be ascribed meaning, that is read with a view toward understanding (and not mere entertainment, or a test of our ability to move our eyes across a page).

              Understanding the Bible is something that has bedeviled scholars and academics more competent than me (Mortimer Adler described it as a "very complicated" book), but that is perhaps the scholars and academics were reading too much into it. In a pre-literate society, the Bible was meant to be read aloud, and its cadences, particularly in the King James Version, are near-poetic. But the key is that it is God who is acting (not as a divine transcription-giver, but cf. Jeremiah 1: 1-2, but as, if you will, intervenor-in-chief in human affairs): the reader is merely the second conduit between the ultimate author and the intended recipient (the hearer). So, I suppose that the idea is how does the hearer understand God's meaning? Some passages are easy (the 10 Commandments); others less so (any of Jesus's parables), some positively inscrutable (the Good Shepherd passage of John 10:1-18). But difficulty in understanding does not excuse a failure to make an effort. And in this respect, reading (or listening to) the Bible as if it had a meaning intended by its ultimate author that can be grasped can and should be done with some degree of rigor.

              By contrast, the Constitution has no specific author. Though Madison is credited with many of its provisions (three-fifths compromise on slaves, bicameral legislature, two-thirds majority to over-ride a presidential veto), there was a separate "Committee of Style" (of which Madison, Hamilton, and Morris were members) designed to harmonize the entire document (something never done by an editorial committee of the Bible). But the Constitution was adopted as an expression of "we the people" with a view toward creating an enduring government divided into three seats of power. It was not to be read aloud at a gathering of believers, worshiped as an expression of the Creator God, interpreted as a chronicle of an ancient people's longing for meaning in the wake of slavery, captivity, and subjugation. The nuts and bolts of government were reserved to subsequent legislative enactments, executive actions and judicial decisions.

              The common question however is what gives late 18th-century property-owning (including slaves) Christian luminaries the right to dictate governmental limitations to 21st-century citizens who include renters, atheists, and descendants of those slaves, just as what gives the Bible's authors the right to impose long-ago values and ideas on those who live with the Internet, motorized transport, and weapons of mass destruction? And the common answer lies in a peculiarly 18th-century concept: free will. Nobody forces American citizenship or Judeo-Christian belief on anyone. I can renounce my citizenship (derived from being born of US citizen-parents on US soil) just as I can renounce my faith (derived from my infant baptism and adolescent confirmation, affirmed each week with a recitation of the Nicene Creed). Doing so may leave me unmoored (and still subject to US taxation and other laws unless I expatriate myself), and with no star by which I may steer my course. But renunciation is the ultimate expression of the concepts in both the Bible and the Constitution: that nobody has to subscribe to these principles (God's creation of a moral universe, His enduring love for His people, and His out-of-this-world act of sacrifice by sending His Son as a ransom for their disobedience; that government should be "of the people, by the people and for the people") if he doesn't want to.

              It may be too much from a strict philosophical standpoint to prove a point by disproving its negative. But if we buy into the notion that we are free citizens of a representative democracy created 227 years ago, then we have to buy into the concept that those who created the government's framework had an understanding of human nature, frailties and desires expressed in their language that can rule us from their grown-over graves. And if we buy into the notion that we are beings created by a God who so loved us that He gave His only begotten Son to the death of the cross, then we disregard the witnesses' meaning of the language that they used to describe that act at our peril.

              JE comments: If I follow David Duggan's argument, Originalists and Fundamentalists are indeed birds of a feather--and arrive at this position through free will?  Or did I misunderstand, and free will is to be exercised to reach one's own interpretations of these Foundational texts?

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        • Justice Scalia, Pro and Contra (Tor Guimaraes, USA 02/20/16 3:11 PM)
          My gratitude goes to my WAISer friends for illuminating the controversy over Justice Scalia and confirming that there is good reason for my confusion.

          Francisco Ramírez wrote about the "short comments on Scalia from Stanford law professors" who seem to agree that Scalia was a very good writer and very influential, but disagree about "whether his originalism was in the service of a political agenda, and whether his legacy will last." This disagreement reflects my own confusion.

          Francisco Wong-Díaz wrote that there is also confusion regarding whether, as Scalia believed, "the written word of the Constitution was by itself sufficient for deciding cases because it reflects the full original intent of the Founding Fathers," or as other justices believe, "the Constitution is a 'living document' that is changeable and that must be adapted to changing circumstances and times." That is a tough one, because I can see the need for both views, depending on circumstances. To me the Constitution is a sacred document forged by brilliant practical minds, not to be ignored or changed without very good reason as represented by the need for all the Amendments. It is not a religious book, but it is the highest man-made document to hopefully ensure that government remains a vibrant democracy, with justice and freedom for all.

          Cameron Sawyer wrote that "it is crucially important to separate the immediate policy effect of Supreme Court judgments, from their underlying legal and Constitutional significance. Just because a decision seems to embody good policy does not make it a good decision... The Supreme Court is not a legislative body, and is not charged with making policy. It would be quite terrifying if it were, because it is unelected, unfireable and unaccountable to anyone but itself, and restrained only by its own respect for the Constitution. The Court has been used, or has used itself, to make policy on matters where the legislature was unwilling or unable to act. Justice Scalia was a leader in the fight to stop this extremely dangerous, harmful, and anti-democratic tendency."

          And yet, Scalia voted for Citizens United, allowing the vast fortunes of special interests to buy elections throughout the USA, destroying the essence of our democracy, which I dare say was the main premise of our Constitution. This is making de facto policy with enormous destructive power against the American people. If this is true, I begin to think Scalia may have had a pernicious effect on the nation.

          Cameron also stated, "Justice Scalia... was the most powerful intellect on the Court in half a century, and the most influential Justice of our lifetime. He was a man of the greatest intellectual rigor and integrity... He was a giant, and the Court, and the Nation, are much diminished by his untimely passing."

          I have great respect for Cameron's opinions, but I am completely befuddled by such deep admiration in this case.

          My first reaction to Obama not attending Scalia's funeral was quite negative, because we must have mutual respect at the highest levels of our government. But then David Duggan added confusion to my mind by writing about the unprofessional behavior of some Chief Executives who have been "spurning the funeral services of judges of the highest courts of their respective domains." Furthermore, the wonderful Justice Scalia seems to also have reserved the right and "famously shunned the State of the Union address" by twice-elected (good or bad) President Obama, as mentioned by John Eipper. All these stupid social insults by our highest leaders are very disgusting to me.

          JE comments: Regardless of one's opinion of Justice Scalia, his passing has given WAIS a very interesting discussion on the US Constitution and the role of the judiciary. Comments on this subject have come in all day. Prepare yourselves, dear WAISers, for an interesting weekend!

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      • Justice Scalia's Legacy (Francisco Wong-Diaz, USA 02/19/16 4:08 AM)
        Justice Scalia as an originalist held firm on the legal tradition that the written word of the Constitution was by itself sufficient for deciding cases because it reflects the full original intent of the Founding Fathers (FF).

        Other justices in US history held/hold the view that the written word is an outline and not the full intent to guide court decisions. Their view is that the Constitution is a "living document" that is changeable and that must be adapted to changing circumstances and times.

        A related legal viewpoint is that in interpreting the Constitution and laws, the historical context of each section, paragraph or word is a vital element that must be taken into account. One would then have to examine the history and debates of the time before deciding a particular case. This allows for very idiosyncratic legal interpretations that might distort the intent of the Founding Fathers.

        Scalia was closer to the strict constructionist tradition--which follows a very literal interpretation--than to the more liberal view. He sought and succeeded in moderating the make-it-as-you-go liberal approach to constitutional interpretation. His greatest contribution was in providing solid and masterfully written opinions on basic principles. His dissents may become future SCOTUS majority positions if the USA ever returns to normality.

        Mr. Obama's refusal to attend Scalia's funeral is disgraceful. He is expected to represent the country and affirm our values by honoring Scalia. Justice Ginsburg is a better human being than the narcissistic Obama. She is honorable by being able to give honor with great dignity and affection.

        Has anyone asked if the current resident of the White House will be playing golf or spending our hard earned tax dollars traveling for fun during the funeral?

        The greatest Cuban, the Apostle José Martí, said: "Honrar, Honra."

        JE comments:  If Pres. Obama does have a golf date tomorrow, he'll have to go in disguise. Regardless of his personal feelings about Scalia, his missing the funeral is a poor tactical move: it will stiffen the resolve of the Senate to stall on his nominee, or to reject ("Bork") him/her altogether.

        Was it payback?  Justice Scalia famously shunned the State of the Union address, but I believe he did so under George W. Bush as well.

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      • Justice Scalia's Legacy: Stanford Report (Francisco Ramirez, USA 02/19/16 4:31 AM)
        These short comments on Scalia from Stanford law professors may be of interest to WAISers. There are some points of agreement: very good writer and very influential. There are some disagreements as to whether his impact was positive, whether his originalism was in the service of a political agenda, and whether his legacy will last.

        I take it that his starting point is to figure out what did the words in the Constitution mean to common folks at that time. If that is indeed the case, the common folks would have been white males. That is my issue with strict originalism. I have a similar problem with literalist readings of holy texts as practical guides to moral behavior.


        JE comments: Francisco Ramírez elegantly sums up the Scalia legacy in his first paragraph.  Hank Levin also forwarded the link to these Stanford Report comments.  One of them is from WAISer Emeritus Hank Greely.

        Constitutional originalism has much in common with Biblical fundamentalism.  Is it a coincidence that both schools of thought found new vigor during the Reagan years?

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        • Justice Scalia's Legacy (David A. Westbrook, USA 02/20/16 7:22 AM)
          Let me try to be helpful.

          I started writing this post by bashing my friend Chiqui [Francisco Ramírez, 19 February] for his essentialism; no doubt he would be baffled by my coarse Teutonic wit. But I do want to start with the idea of representation, the idea that Court, and the law, should reflect "the people."

          As an aside, in the alienation of the current dispensation, self-representation appears to be one of the central ways of being modern--one of the things I'm writing about these days. WAISers might be interested in Bernard Harcourt's new book Exposed: Desire and Disobedience in the Digital Age. And especially collective self-representation.

          So, the fundamental approach taken here, and by a host of WAIS posts, is representational. It's not just "is the law political," it is "does the court reflect/further my political interest"? What has the law done for me (or the American middle class) lately? [Weird to ask so much from a tiny elite of great test takers, no?]

          Having a political interest, is, of course, part of being human. Channeling and containing and even uniting different interests is what making a political entity is all about--consider the drama unfolding in Brussels.

          Using differences of interests--factions--to prevent tyranny was a big part of the genius of the Founders, most especially Madison.

          So the question at the Constitutional Convention was, how do "We the People" (stunning phrase, worth a long pause) create an institutional frame in which interests balance one another, leaving a government that is both (i) capable of acting effectively and (ii) will serve, rather than subjugate, "We the People"?

          A big part of the national answer was, as WAISers presumably know, to devise a system of checks and balances. More fundamentally, the Constitution adopts a functional theory of government, enumerated in the first three articles (legislative, administrative, judicial) and assigning each function to its own "branch." The branches are distinct but not separate--i.e. no branch can exercise its functions alone (hence "check and balance," a more accurate term than "separation of powers").

          The first article, dealing with Congress, is by its terms representational. The idea is that We the People, through our duly elected representatives, make laws and so govern ourselves. Hence "collective self-government."

          The second article, dealing with the President, is administrative. Somebody has to run the government, treat other countries, command the army, and generally enforce the laws.

          The third article treats the judiciary. Courts, at the very least, interpret and apply the laws. So, for example, if a given federal statute is being applied one way in one part of the country and another way in another, a so-called "circuit split," the Supreme Court may resolve.

          Here's the first big point for my fellow WAISers: do not understand the judiciary as representational, at least not in any direct sense.

          If courts are representational, they have no reason to exist (why should you care what nine old lawyers think?). As Cameron Sawyer pointed out, the judiciary is unelected and serves indefinitely. Only by drawing on the authority of something called "the law"--which is different from "my political interest"--does a court have the power to command obedience, especially from those who lose decisions. Articulating, much less understanding, why would take us into the realm of theology, and I have to do other things today. (For now, suffice it to say that the separation of church and state associated with Jefferson must be understood in institutional, as opposed to ontological, terms.)

          The political difficulty in the United States, which has the national media and WAISers so exercised, is that the court system is used to resolve so much in this huge and very diverse nation. It's one of the key ways we hold the country together.

          US courts have so much authority that they can engage in a kind of super-politics through the process of "judicial review." Consider gay marriage or federal finance law, for recent examples. US courts have the power, since Marbury v. Madison, to set aside laws enacted by the federal or the state governments.

          Marbury v Madison is hardly self-evident, and may not be wise. Why should unelected courts ever have the right to set aside the actions of duly elected representatives? To my knowledge, and with the possible and relatively recent exception of the ECJ and the ECHR, the Supreme Court is the most powerful (relatively) pure judicial institution ever. (The King sat "in court," and could decide cases, but was still also a king, more than a judge. Athenian courts were themselves assemblies, and most parliaments have judicial functions [impeachment in the US Senate], and so forth and so on.)

          So what gives the Supremes, just judges, the authority to set aside democratically authorized acts? It is not enough to say "democracy is imperfect." So, demonstrably, is judicial decision.

          The American answer--and we are getting to the stakes in this discussion--runs like this. "We the People" were at the founding and are still worried about our duly elected representatives and especially government officials. We do not give the government, not even elected officials, unlimited power. Instead, we established a system of limited government, the shape of which is set forth in a written document, viz., "The Constitution." Rephrased, the exercise of governmental authority is conceived of as a delegation; the terms of that delegation are contained in the Constitution.

          So who determines the terms of legal documents? Courts. In the US, courts, and ultimately the Supreme Court, have the authority to say whether a given government action comports with the Constitution. This is how they check the power of the other branches.

          What checks the power of the courts? Something must, because  that's the whole point of the scheme.

          The point made by originalists, like Scalia, is that the text of the Constitution checks the power of the courts to check the power of the legislature and the executive, and of the state governments. The prior delegation of authority to the government is, well, prior. The Constitution says some things, it does not say other things. To analogize to commercial law, the court cannot "rewrite the contract." The court has to read the contract, and decide whether the government's action is permitted within the scope of that document. "We the People" can, of course, change the contract, and have, by amending the Constitution.

          In response to some post on this topic, John asked whether Scalia's roll back of "judicial activism" was itself an achievement. Well, maybe. If you ask Americans to list their country's achievements, most will mention the Constitution directly or indirectly in short order. And the Constitution sets forth a limited scheme of collective self-government. By making extravagant and generally unreviewable claims about what the Constitution said, Scalia argued with considerable force, the Court set itself above democracy. And so "judicial activism" shades into "judicial usurpation." From this perspective, returning the Court to its proper role is restoring the health of the Constitutional scheme.

          It should be noted that these are not absolute positions. Interpretations happen along a spectrum. Even the most activist lawyers, all good lawyers (and their clerks!) pay a great deal of attention to language. The law may be politics, but it is not just politics, or not ordinary politics. Good legal argument matters; the legal tradition matters. Conversely, even the most "originalist" judges must interpret texts in light of later decisions, the tradition, evolving circumstances. So it's a lot more nuanced than the caricature that emerges from the press. Chief Justice Roberts has been trying to say this lately. We should try to avoid thinking of Justices as "Republican" or "Democratic."

          But the Court does not always make it easy to think of law rather than politics; consider Bush v. Gore. Which brings us back to Scalia's contribution--if the Court is seen as too political, it will lose its authority, and cease functioning as a court. We are a long way from that, but I believe (and am not alone) that the judicial enterprise has lost stature since the heady days of Brown v. Board of Education. Maybe that is a good thing--perhaps the Warren Court displaced too much water. But as in Europe, the problem of alienation looms . . .

          Let me subside; i am just trying to sketch the basic problem here. I am not going to go into my own position on these matters in any detail. Not to be coy, I'm fairly liberal, at least as a first cut, and happen to think Scalia was something of a partisan, but let me avoid serious discussion of that question, too.

          For present purposes, I simply want to sketch the importance of the core problem with judicial review, the so-called countermajoritarian difficulty, at least for anybody who takes democratic republicanism seriously. Scalia put that quite venerable problem front and center for a long generation of jurists, made it unavoidable. He is gone, but the problem is not.

          JE comments:  Bert Westbrook's nuanced comments give us lots to think about on this fine Saturday.  (And a fine one it is; spring has sprung in Michigan, and I'm going outside to wash my cars.)

          To my mind, the central Scalia paradox is how could he simultaneously argue that the Courts should not be political, but issue a reliable series of partisan decisions?  Why--as just one example--did Scalia's decision in Bush v Gore surprise absolutely no one?

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          • Justice Scalia's Legacy; Response to David A. Westbrook (Francisco Ramirez, USA 02/21/16 5:43 AM)
            Thank you Bert [David A. Westbrook] for your thoughtful exposition of February 20th.

            I know the Supreme Court is not a representative body and I do not argue that it ought to be. There would be no need for a Supreme Court, if its task were simply to reflect public opinion. That is, it would not differ from the executive and legislative branches. It would be a redundancy.

            I know the Court is constrained by the Constitution and I do not argue that this is a bad thing. I agree with you that it is problematic to think in terms of liberal versus conservative judges, as if the political preferences of the justices solely determine their decisions. I think it is safe to assume that Chief Justice Roberts' call on Obamacare was not guided by his political preferences, regardless of how one assesses that call. Furthermore, political preferences can change over time. Who would have predicted that former Klansman Hugo Black would be part of the unanimous decision reversing Dred Scott?

            In my view though the justices in Dred Scott were no more originalist than those in Brown v Board of Education. I do not think they came to different calls because the latter set of justices were activists and overreached while the latter were simply paying attention to the words in the Constitution. I think that the difference in calls was in good part due to differences in historical contexts and their influence on the thinking of the justices We know that context mattered in Brown v Board; heck, there was a black man making the case to the Court. That would have been unimaginable in the Dred Scott era. But the justices in the late 19th century court were not simply cognizant of states' rights with respect to schooling but also acutely aware that blacks had limited standing in the wider society. They and their issues mattered less because they were clearly thought of as inferior.

            One could accept my argument but contend that this holds only in very few instances. The exception makes the rule. Or, one could argue that it ought to not be the case ever and that either the justices in the 19th century erred or that Brown v Board erred. And, channeling my inner lawyer's lawyer self, one can say that the policy outcome of banning legal school segregation on the basis of race is good but should have been achieved via legislation. The same legal reasoning is evident among those who like the policy outcome of Roe v Wade but think invoking the right to privacy was judicial outreach.

            But all the excitement about Scalia's replacement has precious little to do with originalism versus activism and everything to do with the imagined policy outcomes, from the state of Obamacare to Roe v Wade. Most people do not care as to how the Supreme Court arrives at its decisions as long as the content of the decisions are what they see as good outcomes. Both Cameron and Bert, in different ways, remind that we ought to care how the Court arrives at its decisions and that brings us back to fidelity to the Constitution.

            I agree that all judicial calls need to be justified by reference to the Constitution. Where we may disagree is that I see the men, and now the women in black, as human beings exercising human judgments as to the constitutional status of this or that issue. The Founding Fathers were acutely aware of human frailty; the system of checks and balances was designed to cope with human frailty. But the robes do not transform humans into angels. The justices ought to strive to rise above the moment but split decisions and changes in decisions do not tell me that some were faithful and others not. They tell me that the justices are human.

            I reiterate that I do not argue that the Supreme Court ought to be a representative body. My argument is that what constitutes a good judicial decision is not easy to ascertain because fidelity to the constitution is even more difficult to gauge than strikes and balls, as per Roberts analogy. This is an argument about what I think is the case, not what it ought to be.

            One of the interesting things about Scalia's impact is the observation by some lawyers that they crafted their Supreme Court briefs with Scalia in mind. This could mean that they paid more attention to the words of the Constitution or to the filters through which Scalia would interpret these words. I suspect his legacy will be more the former than the latter.

            Bert, I find nothing in your text or Cameron's to be coarse. But I confess that I am at a loss as to whey you depict my text as essentialist.

            JE comments:  Francisco Ramírez underscores what I take to be a truth.  The vast majority of Americans care little about how the Court reaches its decisions:  they just want decisions they agree with.

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            • Thoughts on Scalia Legacy (Tor Guimaraes, USA 02/22/16 4:27 AM)
              After studying my WAIS colleagues' postings on the Scalia legacy, I have reached a few conclusions:

              1. We must always keep in mind that the US Constitution was created to ensure as much as possible that the US government policy and legislation would be a force to promote the desirable behavior supporting democracy, justice, and liberty for all Americans. Thus, ultimately the Constitution aims to direct policy and to guide human behavior.

              2. With such an extremely important objective, any changes to the Constitution must be implemented with extreme care to avoid any conflict with its main objective.

              3. Contrary to many people's opinions, how the Constitution is interpreted will affect government policy and determine right or wrong behavior to the extent that it supports or diminishes the processes necessary for the original Constitutional objectives: democracy, justice, and liberty for all.

              4. Special interests have managed to plant Supreme Court Justices supportive of their own agendas regarding specific matters. Thus, Justice appointments have become extremely contentious, as the nation's extreme partisanship increased and the dominant classes attempt to gain more control.

              5. The long-term performance (legacy) of specific Justices must be based on the extent to which his or her decisions promoted the original Constitutional objectives.

              6. Similarly to politicians who attempt to gain votes by verbally wrapping themselves in the flag or the Bible, we must watch out for the ones claiming to be devout constitutionalists. That is just another distraction from speaking about their specific agenda items. We might be better off trusting someone who says, "trust me, we are going to be great!"

              JE comments: Or "great again," by the inscrutable logic of Donald Trump.

              As for the long-term "greatness" of Supreme Court justices, does anyone besides a Constitutional scholar care about the process or how a decision is reached?  No, they want decisions that pass the judgment of history.  (What that judgment is, of course, is debatable.)  Take, for example, Dred Scott. Chief Justice Roger Taney probably read the Constitution correctly when he issued his loathsome decision.  Does this matter at all from today's perspective?

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      • Justice Scalia; Religion of Supreme Court Justices (Robert Whealey, USA 02/19/16 3:11 PM)

        As a liberal, I admire Oliver Wendell Holmes, who retired in 1933 when FDR was elected.

        Lewis D. Brandeis, whom Woodrow Wilson appointed to the Court as the first Jew, Benjamin Cardozo, the second Jew appointed by Herbert Hoover (a Quaker), William O. Douglas and Hugo Black appointed by FDR, Earl Warren appointed by Eisenhower--all made good justices.

        We have upon Scalia's death 5 Catholics, 3 Jews, and zero Protestants. This is totally unprecedented. Scalia was a hard-line reactionary, an authoritarian corporate lawyer who was also a Catholic. He was partly responsible for deciding Citizens United v the FEC (2010). This established a corporate oligarchy or plutocracy which allows the banks to buy Senators, Representatives and Presidents. This is the worst Supreme Court decision since the Dred Scott case.

        I am also a married man with three grown children and four grandchildren. I would like to see the continuance of Christian civilization in the long run.

        JE comments: I'm glad Robert Whealey has brought up the topic of religion and the Supreme Court. Team Luther, which used to be the top dog, is now shut out entirely. I wonder if Pres. Obama is taking this into consideration for his next choice.

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      • Justice Scalia's Legacy: Linda Greenhouse in NYT (Leo Goldberger, USA 02/21/16 4:59 AM)
        Here is Linda Greenhouse's take on Justice Scalia for those of you who don't have easy access to the New York Times. I for one found it insightful and persuasive.

        I'd be most curious to learn what others think about her assessment of his legacy however partisan it may be...


        JE comments: Greenhouse's op-ed excoriates Scalia for turning the Court into a venue for partisan warfare. I was intrigued to learn that Scalia eschewed the Washington Post as a "shrilly, shrilly liberal" newspaper, and read instead the ultra-right Washington Times--and the Wall Street Journal.  (I'm not surprised that he would do that, rather that he would say that.)

        A question for those who closely follow the Supreme Court:  did Scalia ever call the Constitution a "dead" document, as Greenhouse writes above?

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