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December 21, 2014 / 29 Kislev, 5775
 
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Posts Tagged ‘constitutional’

Morsi Back After Massive Protests Threaten Palace

Wednesday, December 5th, 2012

After a night of protests threatening the presidential palace, Egyptian President Mohamed Morsi has returned home, despite national outrage over his attempts at constitutional reform.

Police held back tens of thousands of protests around the perimeter of the residence, citizens who came out to protest reforms which will strongly increase the powers of the president and severely restrict any judicial oversight.

A referendum on the new measures is expected to be supported by the MuslimBrotherhood in the parliament.

Angry Protesters in Tahrir Square: Morsi Will Fall Tonight

Tuesday, November 27th, 2012

Thousands of protesters are converging on Tahrir Square from points around Cairo to rally against President Mohamed Morsi’s constitutional declaration. One protester has died after inhaling teargas, Egypt Independent reports.

Dozens of parties and civil society groups called for the protests after Morsi’s declaration last Thursday which gave him tyrannical powers and declared the Constituent Assembly and the upper house, the Shura Council immune from judicial review.

A march that began in the Shubra neighborhood north of Cairo, led by former presidential candidate Khaled Ali, arrived in the square late Tuesday afternoon.

The old chants of the revolution were back in loud roars, as protesters were shouting, “The people want to bring down the regime,” as well as newer slogans such as, “Bread, freedom, down with Constituent Assembly.”

Several political parties also participated in the Shubra march, including the Free Egyptians party, the Social Democratic Party, the Adl Party, the Socialist Popular Alliance Party, and the Revolutionary Socialists Movement.

As he watched the march pass, one passer-by said, “It’s over. Tahrir is already full; Morsi will fall tonight.”

Protesters stressed that their large numbers fly in the face of the Brotherhood’s claim that they represent the majority, chanting, “They said we’re a minority, we showed them a million-man march.”

Coalition coordinator Ehab Moussa said, “Morsi’s latest decisions harm the tourism sector and investments in Egypt. Investors will run away after their trust in the Egyptian judiciary is shaken.”

University students and retired officers were also present in the square, and a Wafd Party march led by party head Al-Sayed al-Badawy had set off from its headquarters towards Tahrir.

“The constitutional declaration is an assault on statehood and the rule of law,” said Mohamed Shaaban, a lawyer. “The president is seeking seize all powers, but the people will not remain silent until he moves back.”

Meanwhile, dozens of Muslim Brotherhood students distributed statements at Ain Shams University reading, “The main goal of the recent constitutional declaration is Egyptians’ interests, in order to hold retrials of protesters’ killers and allocate pensions to the injured and martyrs, as part of their rights.”

Williamsburg Store Owners Slammed for Banning Sleeveless Shoppers

Wednesday, July 25th, 2012

If a snooty restaurant can require that men wear dinner jackets in order to be served, is it okay for shopkeepers to require its customers to wear modest attire?  That’s the kind of question being debated in the Williamsburg section of Brooklyn, these days.

Restaurants with a “no shoes, no service” rule have been commonplace for years.  That rule is partly for health purposes, but it is also partly because many people are turned off by seeing someone else’s bare feet when they eat.  If someone is barefoot and hungry, they’ll just have to go to a different restaurant and no one thinks about raising claims of discrimination.

But for some reason the ban by certain Orthodox Brooklyn shopkeepers on customers’ cleavage and bare shoulders has raised the ire of some local consumers, and confused the general public and even law professors concerning permissible limitations on public attire.

One of the complaints is that the stores with the dress codes serve lots of people, not just Jews.

“Religious freedom is one thing, but we do not have the right to enforce our beliefs on someone else,” one local resident claimed.

Another added, “Why should they be able to say that on their signs?  It’s not OK.”

Actually, it is.

So long as the shopkeepers are only telling you what you cannot do in their store – in other words, not requiring you to change your own lifestyle to conform to their own – the shopkeeper has wide latitude about what can be required of customers.  And it isn’t as if the Brooklyn dress codes require customers to follow the religious practices of the storeowners.  There is no prohibition on women wearing pants, for example, nor is there a distinction made between men and women – the discrimination is appearance-based, not gender based.

Marci Hamilton teaches Constitutional Law at Cardozo Law School.  Presumably she knows the difference between discrimination imposed by the government – which is virtually always verboten – and restrictions imposed by private actors, such as shopkeepers, on their personal property, which is almost always permissible, so long as not overtly discriminatory.

When asked to comment on signs hanging in Brooklyn shop windows that state: “No Low Cut Neckline Allowed in the Store,” or “Entry here in modest dress only,” Hamilton bristled.

According to an account in the New York Post, Hamilton referred to the Orthodox dress code as a form of “Balkanization” of the United States.  She said, “It’s no longer sufficient that [the Orthodox] have shared norms among themselves, they are increasingly trying to impose their norms on the rest of the culture.”

UCLA Constitutional Law professor Eugene Volokh, however, points out that there is no constitutional clause against Balkanization.  “Indeed, it is perfectly legal and a part of American tradition that certain communities in the United States prefer to interact primarily within their own parameters, the Amish, for example.”

For Volokh, so long as the dress code applies equally – and it need not even be applied exactly equally – and doesn’t single out people of a certain race, color or gender – there is nothing unconstitutional about the dress codes.

“There are still plenty of fancy restaurants in New York City that require men wear jackets, aren’t there?” Volokh asked.  “What’s the difference?”  In fact, a quick check reveals the famous 21 Club in Manhattan prohibits sneakers and jeans, and dinner jackets are required for male patrons.

Nonetheless, Hamilton maintained, “There’s a movement toward insularity among religious groups.  It’s dangerous for tolerance, and it’s also dangerous for peace.”

The dress code requirements of Orthodox shopkeepers may be dangerous for their own bank accounts, but it’s hard to understand how such standards could endanger peace.

Former Israeli Chief Justice Looms Large At Kagan Hearings

Wednesday, June 30th, 2010

NEW YORK – It was an unexpected development in an otherwise relatively mundane U.S. Supreme Court confirmation process. Failed Reagan nominee Robert Bork grabbed headlines last week when he spoke out against President Obama’s nomination of Elena Kagan to the high court. At the top of his complaint list: As dean of Harvard Law School, Kagan once referred to former Israeli Chief Justice Aharon Barak as her “judicial hero.”

Conservative bloggers quickly ran with Bork’s complaint, painting Barak as the prototypical liberal activist judge and insisting that Kagan’s praise of the Israeli justice was grounds for rejecting her nomination. By the weekend, a few Republican lawmakers were giving voice to the concerns, albeit in less absolute terms. Next, at least two GOP members of the Senate Judiciary Committee, Sens. Lindsay Graham (R-S.C.) and Jeffrey Sessions (R-Ala.), floated the issue in their opening statements on the first day of Kagan’s confirmation hearings.

And on Tuesday the issue took center stage, as U.S. Sen. Chuck Grassley (R-Iowa) put the question directly to Kagan – who then unapologetically affirmed and explained her praise of Barak, saying it was rooted in her Jewishness and admiration for Israel.

“I am troubled by the fact that you hold up Barak as a judicial role model,” Grassley said. “He’s been described as creating a degree of judicial power undreamed of by most U.S. justices.”

Grassley quoted Barak as saying that “a judge has a role” in the lawmaking process, and asked Kagan if she agreed. Kagan responded that she did not, but also noted that Barak operated in a fundamentally different system – one without a written constitution.

“Justice Barak’s philosophy is so different from anything that we would use or would want to use in the United States,” she said.

Instead, Kagan added, she admired Barak for creating an independent judiciary in a young state surrounded by enemies.

“As you know, I don’t think it’s a secret I am Jewish,” Kagan said. “The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he’s done for the State of Israel and ensuring an independent judiciary.”

Sen. Patrick Leahy (D-Vt.), the committee chairman, exercised the rarely used prerogative of rebutting Grassley, quoting conservative judges who have praised Barak.

In Israel, Barak has been subject to criticism from the left and the right, both for his expansive notion of judicial powers in upholding democratic values and for deferring to national security considerations in a number of cases involving Palestinians.

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said during a June 23 conference call organized by the anti-abortion group Americans United for Life in an effort to rally opposition to Kagan in the U.S. Senate.

“That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

Following Bork’s comments, liberals in the United States rushed to defend Barak and Kagan by noting that the Israeli justice has received praise as well from judicial conservatives, most notably U.S. Supreme Court Justice Antonin Scalia. A darling of conservatives, Scalia glowingly introduced Barak in March 2007 when he was honored by the American Association of Jewish Lawyers and Jurists (with the Supreme Court’s two Jewish members, Stephen Breyer and Ruth Bader Ginsburg, in the audience).

In its report on the introduction, the Forward paraphrased Scalia as saying that “no other living jurist has had a greater impact on his own country’s legal system – and perhaps on legal systems throughout the world.” According to the report, Scalia went on “to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man – one that trumped their fundamental philosophical, legal and constitutional disagreements.”

Told of Scalia’s remarks, Bork dismissed them as sounding “like politeness offered on a formal occasion.”

In an e-mail to JTA, David Twersky, a veteran journalist and analyst for Jewish organizations, recalled that at a New York Sun editorial dinner at the Harvard Club he asked Scalia about Barak.

“To my great surprise, he had nothing but good things to say and said he would never second-guess Barak,” Twersky said. “So I can tell you from personal experience that Bork is wrong.”

Twersky recalled Scalia as saying, “I mean they don’t even have a constitution over there.”

The Israel-lacks-a-constitution theme has been echoed in recent days by Barak’s defenders, who argue that the different legal traditions in Israel and the United States make it difficult to read too much into Kagan’s praise of Barak.

(JTA)

(JTA’s Washington Bureau Chief Ron Kampeas contributed to this report.)

Former Israeli Chief Justice Looms Large At Kagan Hearings

Wednesday, June 30th, 2010


NEW YORK – It was an unexpected development in an otherwise relatively mundane U.S. Supreme Court confirmation process. Failed Reagan nominee Robert Bork grabbed headlines last week when he spoke out against President Obama’s nomination of Elena Kagan to the high court. At the top of his complaint list: As dean of Harvard Law School, Kagan once referred to former Israeli Chief Justice Aharon Barak as her “judicial hero.”


Conservative bloggers quickly ran with Bork’s complaint, painting Barak as the prototypical liberal activist judge and insisting that Kagan’s praise of the Israeli justice was grounds for rejecting her nomination. By the weekend, a few Republican lawmakers were giving voice to the concerns, albeit in less absolute terms. Next, at least two GOP members of the Senate Judiciary Committee, Sens. Lindsay Graham (R-S.C.) and Jeffrey Sessions (R-Ala.), floated the issue in their opening statements on the first day of Kagan’s confirmation hearings.


And on Tuesday the issue took center stage, as U.S. Sen. Chuck Grassley (R-Iowa) put the question directly to Kagan – who then unapologetically affirmed and explained her praise of Barak, saying it was rooted in her Jewishness and admiration for Israel.


“I am troubled by the fact that you hold up Barak as a judicial role model,” Grassley said. “He’s been described as creating a degree of judicial power undreamed of by most U.S. justices.”


Grassley quoted Barak as saying that “a judge has a role” in the lawmaking process, and asked Kagan if she agreed. Kagan responded that she did not, but also noted that Barak operated in a fundamentally different system – one without a written constitution.


“Justice Barak’s philosophy is so different from anything that we would use or would want to use in the United States,” she said.


Instead, Kagan added, she admired Barak for creating an independent judiciary in a young state surrounded by enemies.


“As you know, I don’t think it’s a secret I am Jewish,” Kagan said. “The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he’s done for the State of Israel and ensuring an independent judiciary.”


Sen. Patrick Leahy (D-Vt.), the committee chairman, exercised the rarely used prerogative of rebutting Grassley, quoting conservative judges who have praised Barak.


In Israel, Barak has been subject to criticism from the left and the right, both for his expansive notion of judicial powers in upholding democratic values and for deferring to national security considerations in a number of cases involving Palestinians.


“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said during a June 23 conference call organized by the anti-abortion group Americans United for Life in an effort to rally opposition to Kagan in the U.S. Senate.


“That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”


Following Bork’s comments, liberals in the United States rushed to defend Barak and Kagan by noting that the Israeli justice has received praise as well from judicial conservatives, most notably U.S. Supreme Court Justice Antonin Scalia. A darling of conservatives, Scalia glowingly introduced Barak in March 2007 when he was honored by the American Association of Jewish Lawyers and Jurists (with the Supreme Court’s two Jewish members, Stephen Breyer and Ruth Bader Ginsburg, in the audience).


In its report on the introduction, the Forward paraphrased Scalia as saying that “no other living jurist has had a greater impact on his own country’s legal system – and perhaps on legal systems throughout the world.” According to the report, Scalia went on “to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man – one that trumped their fundamental philosophical, legal and constitutional disagreements.”


Told of Scalia’s remarks, Bork dismissed them as sounding “like politeness offered on a formal occasion.”


In an e-mail to JTA, David Twersky, a veteran journalist and analyst for Jewish organizations, recalled that at a New York Sun editorial dinner at the Harvard Club he asked Scalia about Barak.


“To my great surprise, he had nothing but good things to say and said he would never second-guess Barak,” Twersky said. “So I can tell you from personal experience that Bork is wrong.”


Twersky recalled Scalia as saying, “I mean they don’t even have a constitution over there.”


The Israel-lacks-a-constitution theme has been echoed in recent days by Barak’s defenders, who argue that the different legal traditions in Israel and the United States make it difficult to read too much into Kagan’s praise of Barak.

(JTA)

(JTA’s Washington Bureau Chief Ron Kampeas contributed to this report.)

The End Of Judicial Tyranny In Israel?

Wednesday, February 14th, 2007

     It pains me to tell you this, but Ehud Olmert has actually done something right. Possibly the very first correct thing he has done since becoming prime minister. And it is spectacularly correct!
 
      Olmert has appointed Professor Daniel Friedmann as the new minister of justice. And Professor Friedmann is determined to blow the whistle on the long reign of judicial tyranny imposed on Israel by its anti-democratic judges and by advocates of judicial activism.
 
      First, let’s back up a bit. Israeli democracy has for many years been under massive assault by anti-democratic elitists promoting judicial tyranny. Under their doctrine of judicial activism, it is the proper role of unelected judges to trample, trump and override the decisions of the elected representatives of the Israeli people.
 
      Led by previous chief justice Aharon Barak and now by current Chief Justice Dorit Beinisch, the advocates of judicial activism believe leftist judges should dictate to Israel’s legislature what laws those lawmakers may or may not make. Accordingly, judges should be empowered simply to make up the law as they go along.
 
      Bear in mind that judges in Israel cannot be removed from the bench through any process of impeachment or ballot referendum. Advocates of non-impeachable activist judges want them to dictate everything in the country, from micro-decisions made by the army to Israel’s foreign policy because “absolutely everything should be subject to judicial review” (a favorite Barak slogan). 
 
      These people generally want the courts to impose a leftist political agenda on Israel, and that is what judicial activism judges often do. Barak infamously has stated that judges in Israel impose ideas favored by “enlightened opinion,” which of course always means the secularist Left. The vast majority of Jewish Israelis hold “unenlightened opinions,” according to such snooty elitists.
 
      The Israeli Supreme Court has ordered the government to record homosexual “marriages” that were registered in other countries, and has granted spousal rights and privileges to homosexual couples. The court ruled that there is a constitutional right in Israel to be an importer of non-kosher foods (remarkable, given that Israel has no written constitution at all), but no such right to be an importer of kosher food.
 
      The court has collaborated in the many assaults against free speech and free expression in Israel, assaults invariably directed against the Israeli Right. The court has refused to stop the persecution of anti-Oslo dissidents or to overturn Israel’s ridiculous “anti-racism” law, which declares that expressing Kahanist points of view is a felony but cheering on suicide bombers or calling for Israel to be annihilated is protected speech.
 
      A Supreme Court justice, Ayalla Procaccia, last year tossed female teenage settlers into prison for their criticism of government policy at a protest, declaring that the girls were guilty of expressing an unacceptable political opinion. “The message must be made clear that the law will be enforced, at times of calm or at times of crisis, for minors or adults,” the judge declared.
 
      Just a few weeks back, hopes for reining in judicial tyranny in Israel seemed bleaker than ever. Professor Ruth Gavison had been a contender for appointment to the Israeli Supreme Court. A longtime champion of civil rights, somewhat left of center and secularist, Gavison nevertheless is a ferocious opponent of judicial activism and would have worked against the activist judges on the bench.
 
      That was enough to arouse the Left against her. In a campaign somewhat reminiscent of the malicious jihad in the U.S. against the nomination of Yale Professor Robert Bork to the Supreme Court, the Israeli Left mobilized its shock troops against the Gavison appointment and it was shot down.
 
      Meanwhile, Dorit Beinisch took over as chief justice when her mentor Aharon Barak retired. Beinisch used the occasion of her accession to praise Barak’s judicial activism and promised to conduct more of the same Like Barak, she believes the court is entitled to revoke and cancel laws passed by the Knesset, supposedly as part of “judicial review.” Never mind that there is no constitutional basis in Israel for such judicial review. 
 
      The distinguished Robert Bork mentioned above is on record as declaring that Israel’s Supreme Court is the very worst in the democratic world in terms of ignoring checks and balances and in its promotion of judicial activism. He wrote: “Israel must have the most activist, and from my point of view, the worst court in the Western world. They have developed an intrusive, pervasive constitutional law without really having a Constitution. Now that’s hard to do, but they’ve managed it and they have managed to get themselves in a position where they, in effect, control the membership of their own court.”
 
      Tel Aviv law don Daniel Friedmann is both a man of principle and a man of conservative legal principles. Politically he is a centrist. He was one of the people who served on the Beijski Commission in the 1980′s, set up after the bank share scandal of 1983. That commission recommended a program of critical economic reforms that the political hacks largely ignored.
 
      Educated at the Hebrew University and Harvard, Friedmann strongly opposes judicial tyranny and is dead serious about reining it in. He wants to end the system under which the Israeli commission for appointing judges acts as a rubber stamp for candidates supported by the judges already on the Supreme Court. He wants to create a constitutional court that will strip the Supreme Court of its powers of judicial review of laws. He wants to change the system under which the chief justice of the Supreme Court is selected.
 
      In short, he wants to appoint judges who will actually obey the law, an idea quite novel in Israel. 
 
      Professor Friedmann was one of those jurists who vehemently opposed the appointment of Beinisch as chief justice, repeatedly declaring his position that she is not competent or qualified to serve on the Supreme Court.
 
      Beinisch had personally led an earlier successful campaign against the appointment of Professor Nili Cohen as a Supreme Court judge. Friedmann was the country’s leading promoter of Cohen for the post and accused Beinisch of blocking the appointment for petty personal reasons. “It appears the justices are not immune to the possibility of misusing power, as the developments in the process of appointing judges has proven,” he wrote.
 
      All judges in Israel are appointed by a Judicial Selection Committee, which is currently made up of three Supreme Court justices, two ministers (including the minister of justice), two Knesset members, and two members of the Israel Bar Association. Once a judge is appointed, it is all but impossible to get him or her dismissed. Dismissals can take place when the chief justice leads the campaign against a judge – and not always then.
 
      In reality, the committee usually rubber stamps what the Supreme Court justices, who dominate it, want. Hence, appointment of judges in Israel effectively consists of unelected judges dictating which other unelected judges will sit on the bench.
 
      Under Friedmann’s proposals, the Judicial Selection Committee will be revamped. Only a single sitting judge will be a member. The others will be representatives of the public and the voters, and they will be in a position to flex their muscles against judicial abuse.
 
      And the Israeli Left is simply hysterical about that. Israel’s leftist Haaretz has been overflowing with outraged articles opposing Friedmann. One Haaretz writer compared the appointment of Friedmann to a hypothetical appointment of convicted traitor Tali Fahima as head of the Shin Bet intelligence service. (The comparison is amusing since Haaretz has long served as cheerleader for Fahima and would probably support her appointment as head of the Shin Bet if it were to take place.)
 
      Meanwhile, the leftist apparatchik and godmother of the Oslo debacle, Yossi Beilin, had a public fit when he heard the news of Friedmann’s appointment. Far-left Meretz Knesset member and Peace Now leader Avshalom Vilan raged in the press at the fact that an academic, not a political hack, was being appointed – someone the Left would have difficult in bullying into political compliance.
 
      A retired Supreme Court Justice and advocate of judicial activism, Mishael Cheshin, openly threatened Professor Friedmann with violence, promising to “cut off the arm of anyone who raises a hand against the court.”
 
      The Israeli law enforcement system has long been little more than the occupied territory of the Israeli Left. The attorney general does little to hide his political agenda when he makes decisions about investigations and indictments.
 

      Friedmann’s appointment upsets this cozy undemocratic arrangement and threatens to strip the Left of its unelected de facto domination by democratizing Israel’s legal system. And that’s the first piece of really good news in Israel in quite a while.

 

 

      Steven Plaut, a frequent contributor to The Jewish Press, is a professor at Haifa University. His book “The Scout” is available at Amazon.com. He can be contacted at stevenplaut@yahoo.com.

Tenafly, New Jersey Eruv Controversy

Friday, December 7th, 2001

In a brief filed with the United States Court of Appeals in the crucial case involving an eruv in Tenafly, New Jersey, Nathan Lewin, Orthodox Jewry's foremost constitutional litigation lawyer, presented an important argument that will, if successful, insulate all eruvim in the United States against similar constitutional attack. The Tenafly Council ordered Cablevision to remove 183 plastic strips that the Eruv Association had attached to utility poles to be used as “lechis,” which are necessary to complete an eruv. Many reportedly had reason to believe, from the debate that had preceded the order of removal, that Tenafly was simply trying to keep Orthodox Jews out of the town. But all the Council members swore that they had no anti-Orthodox bias ? which would have meant that their action against the eruv was a violation of the Constitution ? and the federal judge believed them.

The Eruv Association is appealing the decision, mainly on the ground that the judge's conclusion as to the issue of the Council-members' motives was wrong. That is a difficult argument to make because appellate courts usually accept “findings of fact” by trial judges. However, Mr. Lewin ? who represents attorney Chaim Book, a plaintiff in the case and the primary force behind the establishment of the eruv ? has presented an ingenious argument that does not depend on whether the Councilmembers lied under oath.

There are thousands of identical plastic strips on utility poles in Tenafly that are used to transmit telephone calls and cable television. If those plastic strips are allowed and even encouraged by Tenafly, how can the Town refuse to allow 183 of the same plastic strips only because they are part of an eruv? Prohibiting the innocuous act of attaching plastic strips to utility poles when they are part of a religious observance while encouraging plastic strips useful for television reception is, according to Mr. Lewin, what violates the Constitution, not the allegedly bad motives of Tenafly's elected officials. And, says Mr. Lewin, the plastic strips are also “symbolic religious speech.” Since Tenafly has allowed orange ribbons on its poles to protest a public-school policy and for “lost-dog” notices, it may not discriminate against a symbol of the eruv.

These sorts of creative arguments ? which appear to us as eminently correct and which should carry the day for the Tenafly eruv ? are what have made Nat Lewin renowned in the American Orthodox Jewish community.

Printed from: http://www.jewishpress.com/indepth/editorial/tenafly-new-jersey-eruv-controversy/2001/12/07/

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