Constitutional Adjudication and Social Division – A Judicial Perspective

I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights.

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Restorative Justice Conference: “Grief Is Inevitable; Misery Is Optional”

There is no way the legal system – or anyone else — can undo the terrible wounds left on people who have had a loved one murdered. But can the system or those involved in different aspects of it help survivors of a murder victim go forward in leading their lives?

That was the underlying question at the remarkable and emotionally intense 2013 Restorative Justice Conference held last week at Marquette Law School’s Eckstein Hall. “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community” brought together about 200 people from Wisconsin and much of the country to examine the post-murder lives of family members.

But among the many speakers, six stood out – because, as survivors of victims, they personally had gone through the grieving and dealt with the legal system and so many other problems. Three from Texas, two from Minnesota, and one from the Milwaukee area told their searing stories in a pair of panel discussions on Friday morning, the second day of the conference.

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Residency Requirements and the Sense of Community

Ray Papke, my late father, was a maintenance man for Milwaukee Public Schools and proud of it. He had no quarrel with the requirement that City of Milwaukee employees live within the City. He was born in Milwaukee, worked for Milwaukee, and pleased to live in Milwaukee.

Were he alive today, Ray Papke would have opposed Governor Scott Walker’s proposed elimination of residency requirements for City employees, but I can’t imagine him voicing the common arguments against the proposal. To wit, (1) Property values in the city will fall, (2) The City’s racial and ethnic diversity will decline, and (3) People are more effective working for others if they know and live with them.

No, Ray Papke’s position was one based on a more fundamental sense of community, one that literally had a geographic foundation. He lived and worked for this town in this place. This view of social life is of course missing in the Governor’s vision of free-floating individuals who should be able to live wherever they want. It’s also missing in the arguments of the Governor’s opponents, arguments primarily couched with reference to socio-economic concerns and workers’ efficiency.

I fear that the vision of community held dear by Ray Papke was buried along with him and his generation of honest, patriotic, blue-collar Americans. We cannot relive the past, but these Americans were in touch with something that added depth and meaning to their lives.

 

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