A Radical Revolution in Thought: Frederick Douglass on the Slave’s Perspective on Republican Freedom

While the image of the slave as the antithesis of the freeman is central to republican freedom, it is striking to note that slaves themselves have not contributed to how this condition is understood. The result is a one-sided conception of both freedom and slavery, which leaves republicanism unable to provide an equal and robust protection for historically outcast people. I draw on the work of Frederick Douglass – long overlooked as a significant contributor to republican theory – to show one way why this is so. Focusing the American Revolution, the subsequent republican government established new political institutions to maintain the collective interests of the whole population. The political revolution was held in place by processes of public reason that reflected the values and ideas of the people that had rebelled. The black population, however, had not been part of this revolution. After emancipation, black Americans were required to accept terms of citizenship that had already been defined, leaving them socially dominated, subject to the prejudices and biases within the prevailing ideas of public discourse. Douglass argued that republican freedom under law is always dependent on a more fundamental revolution, that he calls a ‘radical revolution in thought’, in which the entire system of social norms and practices are reworked together by members of all constituent social groups – women and men, black and white, rich and poor – so that it reflects a genuinely collaborative achievement. Only then can we begin the republican project of contestatory freedom as independence or non-domination that today’s republicans take for granted

Public Funding of Judicial Campaigns: The North Carolina Experience and the Activism of the Supreme Court

In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has continued for almost two centuries, but has encountered new impediments over the last half century and especially in the last decade, largely as a result of decisions of the Supreme Court of the United States extending the meaning and application of the First Amendment to the Constitution of the United States far beyond the expectations of those who wrote or ratified it, or many who have since proclaimed its virtue and importance. Part I focuses on the nineteenth century development of state judicial elections as a means to solve corruption and create judicial independence, specifically highlighting the developments in North Carolina. Part II discusses the progressive reforms of judicial elections that occurred in some, but not all, states during the twentieth century. Part III discusses the enduring problems of judicial elections and how those problems have been magnified by national politics and Supreme Court rulings during the past half-century. Part IV reviews North Carolina’s legislation, which attempts to ensure independence in a system of judicial elections. Lastly, Part V discusses the problems that are left unaddressed by the North Carolina legislation and proposes additional reform. The Article concludes that reasonable citizens of North Carolina have no choice but to recognize that the Court’s “activist” decisions have rendered unworkable the provisions of their state constitution governing the election of judges, even while demonstrating the case for a political system holding high court judges accountable for their political decisions

APPOINTING JUDGES THE EUROPEAN WAY

This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States. The article argues that in Europe, judicial independence is prized above and beyond any other possible positive trait. The democratic legitimacy of European judges derives from the intimate connection between democracy and the rule of law. Legitimacy does not attach, in the public eye, to a single political institution, but rather to the system as a whole

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Direct Effect Jurisdiction under the Foreign Sovereign Immunities Act: Searching for an Integrated Approach

Recent decisions by the United States Supreme Court as to the international reach of American antitrust and securities statutes have engendered significant debate about the appropriate extraterritorial application of federal law. Such debates have also slowly come to include some mention of the right application of state law beyond U.S. boundaries through long-arm statutes. The arguments of different commentators and jurists universally support careful consideration of the implications of prescribing a rule of U.S. law to foreign conduct, absent an appropriate basis in international law and practice. The time is now right, therefore, to consider how these debates affect a statute that combines federal and state law and potentially prescribes both of those sources of law abroad in the same action: The Foreign Sovereign Immunities Act (FSIA). This Article discusses the direct effect provision under FSIA\u27s commercial activities exception. It argues that the jurisprudence interpreting the appropriate reach of that provision has become confusing and unworkable, and advocates a reinterpretation in light of the ongoing larger discussion about extraterritoriality in the federal and state law contexts