Where the F word is not a dirty word, and what a breath of fresh air that is.

I've just returned from two weeks in the United States, hence my absence from these pages.

As the wife of current president of the NZ Bar Association, each year I get to tag along to sessions at the American Bar Association's annual conference. The US organisation is vastly different from this country's. For starters, their motto is, "Defending Liberty, Pursuing Justice".

They have a "Rule of Law" luncheon where awards are given. In 2008 those honoured were lawyers who'd risked their lives to remain in Zimbabwe. Last year it was judges from Pakistan. This year, unfortunately, the format was different and some boring woman from Hilary Clinton's department read a speech (badly) about rape as a war weapon. Not that it wasn't a good topic, just that we didn't learn anything new.

Last year I also listened to an absorbing speech by Attorney General Eric Holder on why the three strikes legislation in America doesn't work in terms of reducing crime, and how the Obama administration would be basing corrections policy on evidence-based research, eg, drug courts, education and work in prisons. Keep up, New Zealand.

Two highlights this year: seeing the ABA medal of honour awarded to Justice Ruth Bader Ginsburg, and listening to her fascinating acceptance speech. After this brilliant, beautiful woman first graduated from Columbia Law School in 1959, she was refused employment solely because of her gender, despite a glowing reference from a Harvard law professor. That which doesn't destroy us certainly makes us stronger - Bader Ginsburg had a glowing career and was appointed to the Supreme Court in 1993.

The second highlight - and this brings me to the theme of this blog - was ABA President Ms Lamm's speech. She talked of the role of the association's members - upholding liberty.

"If Freedom had a Facebook page," she said, "I wonder who would be its friends?

"Would one be a black woman on a bus, refusing to give up her seat?"

And so she continued.

Back in my hotel room, I turned on the telly to catch a full speech delivered in Chicago by President Obama, surely the world's greatest living orator? He, too, talked about freedom and the rule of law, acknowledging the criticism America wears for its attempts to export democracy. And what good is democracy, he added, without the rule of law? Without the rule of law, democracy is just mob rule. Quite.

These issues are dear to his heart. He was, after all, a lawyer specialising in constitutional law, which leads many critics to liken him to George W Bush. That is, a president who doesn't listen, who thinks he knows best.

And that has brought Obama trouble with this proposed Islamic centre two blocks away from Ground Zero in New York. It's a toughie. A poll taken showed some 60 per cent think building the centre there is a bad idea, but about 60 per cent again respect the constitutional right of the property owners to build the centre on their land, and the freedom to practice religion of their choice.

The President had been silent until Ramadan dinner at the White House when, carefully avoiding commenting on the wisdom of the project, he defended the Muslims' right to build it. "Freedom in America is indivisible from the freedom to practice one's religion."

Obama inherited the US war against Afghanistan and Iraq and he's made it his mission to reach out to peaceful Muslims. As one commentator - in favour of the Muslim centre said - doesn't it say something to the world, that Americans can, in the midst of their pain of 9/11, still say, yes, we believe in freedom of religion and property rights? You can still build your mosque there.

Of course it would be better if the mosque, or Muslim centre, or whatever it's called, were sited elsewhere, but that would only be solved by self-regulation. Not force.

Americans are so lucky to be protected by two documents - the Declaration of Independence and the US Constitution. Right now, so-called "anchor babies" are being threatened with statelessness. In southern states there's a perceived problem of illegal immigrants crossing the border, then having a child which under the 14th Amendment gets US citizenship, to remain in America.

The 14th was written for the children of slaves (it excludes children of diplomats and members of Indian tribes who maintained sovereignty) and despite those who argue otherwise, does include today the children of illegal immigrants. Are the latter a problem? Look at the facts: illegal immigrants today are roughly the same percentage of the population (12.3) as they were in the 1860 Census (13.2).

However, there are strong moves afoot to change the 14th Amendment - a difficult process to be sure, but possible. I remember when I was in Parliament being disgusted when we changed our laws over babies born in this country.

But for all its faults - and there are many - I love the debate America has with itself, especially over issues of freedom, individual rights, how far they can be tested. And I love the fact you can sprinkle your conversation with the F word, without immediately being classified as someone to the right of Ghengis Khan.

But what really worries me right now, is how far someone will go when it comes to their President. He's a man of integrity. He is doing what he thinks is good for the country, not what he thinks is politically expedient.

It won't be an Islamist terrorist who takes him out from the grassy knoll, it will be an intolerant Waco-ist Yankee nutter.

Comments (15)

by stuart munro on August 23, 2010
stuart munro

Nah - he's safe. America only kills the good ones.

by william blake on August 23, 2010
william blake

Perhaps it is a similar to Catholic believers building a church in London 20 years ago. Londoners didn't express opinions about it being a nexus for the IRA. it was just a place of spiritual worship.

Bin-Laden et.al are not the Muslim church.

I have always been in awe of the American constitution's ability to allow the Nazi party freedom of expression while at the same time the constitutional freedom to persecute communism.

by Mark Bennett on August 23, 2010
Mark Bennett

Interesting, but the whole "freedom is a dirty word" premise is misconceived, because NZers love their freedom as much as Americans.

Your observations seem out of touch with our media discourse and any social scene I have ever encountered: "Where the F word is not a dirty word"; "And I love the fact you can sprinkle your conversation with the F word, without immediately being classified as someone to the right of Ghengis Khan." Really? We are more likely to demonise positions on the left with accusations of 'nanny state', 'PC' and 'redistribution of wealth'.

What NZers object to is a view of freedom that, for example, denies that we should have a proper public healthcare system, or that a progressive income tax is a legitimate and just way of ensuring that the state can guarantee that every citizen's basic needs are met.

(An aside: I'm not sure that the so-called 'GZMosque' really helps your argument, given that most Americans oppose its building, as does this staunch defender of freedom).

Sure, we don't have a supreme law bill of rights, and so some fundamental rights and freedoms are abridged by our government and legislators. But that could be seen as better in the end, on balance, because we don't have the courts striking down freedom-enhancing legislation like gun laws and election spending limits in the name of a corrupted conception of freedom.

Also, in what way does the motto of the US Bar Association show they are "vastly different" from the NZ one? Because it mentions 'liberty'? They also have a 'rule of law' luncheon. In any case, I'm not sure how this all helps when you have a political supreme court making partisan, liberty-diminishing political decisions under the guise of 'the rule of law', and an executive engaging in wars of dubious legality, in torture, and in detention of prisoners in contravention of the very freedoms Americans so breathlessly extol (in a military base chosen for the very reason that it would circumvent the Constitution).

by Andrew Geddis on August 24, 2010
Andrew Geddis

I have always been in awe of the American constitution's ability to allow the Nazi party freedom of expression while at the same time the constitutional freedom to persecute communism.

That's because "the Constitution" means whatever the judges of the age say it means. In the 1950's, the interpretation of the First Amendment was such that it permitted McCarthy et al's activities. By the late 1960's, the court had repudiated much of that earlier jurisprudence and adopted an interpretation that permitted very few restrictions on political expression (hence the Nazi's right to march through Skokie, Ill.).

Here's a thought ... are you truely "free" if you live in a society where you may only collectively decide what rules you will live by if five out of nine unelected, life-tenured people say that this is OK by them?

by Deborah Coddington on August 24, 2010
Deborah Coddington

Andrew how can a person "collectively decide" something?

by Pete Sime on August 24, 2010
Pete Sime

Here's a thought ... are you truely "free" if you live in a society where you may only collectively decide what rules you will live by if five out of nine unelected, life-tenured people say that this is OK by them?

If you put it in those terms, then you would have to ask whether complete autonomy of the individual is a desirable thing. Is freedom the same thing as anarchy? I'm content to pay my taxes so there's a health system, roads, education and so on. I enjoy food that is subject to health and safety standards and I think a little regulation here and there can be for the public good.

I rather admire the idea of checks-and-balances built into the American system, but maybe it would require some tweaking in NZ. The Bill of Rights Act is deliberately hamstrung, we abolished our upper chamber and royal assent has not been witheld since George IV signed Catholic emancipation. I believe the public consensus behind MMP was to temper the excesses of Parliament, but all that has happened is the emergence of two blocs, with a couple of parties playing them off against each other. We need something in our system that sets out inviolate principles that Parliament can't touch. Such issues may be in the too-hard basket right now, but if we ever become a republic, we would have to give serious thought to them.

by Deborah Coddington on August 24, 2010
Deborah Coddington

Pete, I don't think freedom is the same thing as anarchy. With freedom comes responsibility. To me freedom does not give you the right to initiate force against someone else. However, I'm not a complete and pure objectivist or libertarian, because I'm happy to pay taxes for a health system, roads, state and personals security etc.

I also agree with you, though, about checks and balances. When the Labour Government decided to do away with the right to appeal to the Privy Council, (Andrew will correct me if I'm wrong here) for example, because it was a constitutional issue, to get around the need to have more than two thirds of a majority to dump it in Parliament, they did it another way. They introduced the Supreme Court Bill.

I think the executive in NZ has too much power.

by stuart munro on August 24, 2010
stuart munro

I think the executive in NZ has too much power.

Amen to that. It is absurd that our representative system relies on the same kind of delegates that came in with the glorious revolution. We no longer live in a world where horseback communication speed and widespread illiteracy necessitates a large, inept, and self-interested representative elite.

The role of Treasury is even worse, an unelected group of unsuccessful far-right economic extremists employed to screw over the country for the convenience of foreign bankers. The tight money policy they run and its consequences parallel the post war stagnation imposed on Japan until the Korean war persuaded the occupying administration to relax its paralysing grasp. And we pay them? An expert is someone who can actually do something, Treasury's advice is invariably negative, they can't do anything. Which makes them dispensible.

by Andrew Geddis on August 24, 2010
Andrew Geddis

Deborah,

Without necessarily wishing to endorse the process by which the Supreme Court was created, there was no formal need for a 2/3rds majority in the House. That safeguard only applies to a handful of provisions in the Electoral Act, relating to things like the voting age, method of voting,term of Parliament etc. You might argue, however, that as a matter of constitutional propriety it isn't really on to swap our highest court without a broad (i.e. bipartisan) consensus on the need to do so. I couldn't possibly comment.

As for my earlier point, obviously an individual can't collectively decide anything (unless you want to get into questions about the nature of the mind, and whether each "person" actually is an amalgam of "personalities", or the like...). But if you want to talk about "rights" and "freedom", then isn't one of the most important (if not THE most important) rights an individual should have the right to take equal part in deciding how society will be run/what rules we'll collectively abide by? And what happens to that right when a court (or, 5 judged out of 9) decides to overturn a law that has been debated and adopted by legislators that have been elected by all of society (or, at least, all of those who voted)?

I guess you'd say, "well, the court would only do so to protect other individuals rights ... the right to participate doesn't allow the majority to decide to take away rights from a minority." Except it isn't that clear in reality - the people of Skokie (for example) didn't want to ban the Nazis from marching 'cause they "hate freedom" or "hate free speech". Rather, they hold a reasonable and well founded belief that free speech shold not extend to allowing Nazi expression in a neighbourhood of holocaust survivors. And everyone agrees there are limits to free speech - even if it's just to prohibit trying to hire a hitman to murder your husband. So if it's a question not of people who "like" free speech versus those who "hate" it, but rather a dispute about where the appropriate limits to free speech (or any other right) lie, then why let 5 of 9 unelected, life tenured judges decide that matter for all of society instead of legislators who are chosen by (and answerable to) those individuals who actually have to live under the law?

So I'd argue that, insofar as the US has turned to the judiciary to resolve many of the most contested questions in faces (abortion, gun rights, campaign finance, etc, etc), the people there actually are less free than we are here in NZ.

by Danyl Mclauchlan on August 24, 2010
Danyl Mclauchlan

"If Freedom had a Facebook page," she said, "I wonder who would be its friends?

I like to think Destiny and Faith would check Freedom's status updates and Farmville progress every day; Dreams would play online scrabble with Freedom while Hope would follow them all on Twitter.

by Andrew Geddis on August 24, 2010
Andrew Geddis

Danyl,

That sort of absurdist frivolity may be all the rage back at The Dim Post, but here we're engaged in very serious discussions.

An what is this "Twitter" of which you speak? Is it a form of the newfangled telegraph machine?

by Claire Browning on August 24, 2010
Claire Browning

Andrew,

It was poetry.

Lawyers.

by Deborah Coddington on August 24, 2010
Deborah Coddington

Andrew I'm going to take your argument in stages. But first I can't resist responding to this Twitter nonsense. It's called Twitter, appropriately, because it is used by Twits, who tweet, apparently,

You  argue that the US Supreme court judiciary is unelected and yes, it is politically appointed. But politically appointed by those elected by the people in a democratic system. So they know - or should know - when they vote for the policies of their choice, that, ergo, they will be getting the judiciary of their political choice. It follows, does it not, that the Supreme Court justices of the day will then rule accordingly on contentious issues such as abortion, gay marriage, etc? Just as a government of the day will legislate the same way?

I think I prefer that, to our system, where we pretend our justices are appointed in a non -political way. But we know different, don't we? And then some folk, I'm thinking Business Roundtable, jump up and down about judicial activism from the Bench, when they should know better. And anyway, is there anything wrong with judicial activism?

Sorry, what's 'faces'?

I guess this doesn't answer your question, are they any more 'free' in the US than we are here?

I'll go and feed the animals, and think about that.

by Andrew Geddis on August 24, 2010
Andrew Geddis

Deborah,

But isn't the only value judges add to the process of governing that they decide matters not on "policy" but on "the law"? If they really are just another layer of political figures who make the rules based on their ideological preferences and trace their "right to rule" back to democratic mandates, then what's the point of having them? And remember, you don't get to change judges once they're in place. (Or, at least, it should be very, very hard to change them, as your husband no doubt is arguing at present!) So while the USA may have repudiated Bush's legacy in 2008 (and at least some Bush voters regretted their support for him prior to that), his appointees on the Supreme Court (Roberts and Alito) will continue to exercise a veto role over many aspects of US law for at least another generation. Surely that matters?

As for "judicial activism" - that always strikes me as a term that gets applied whenever judges decide anything you don't like (as opposed to "sensible application of the law", which are decisions you do like).

by Christiaan on August 26, 2010
Christiaan

I agree with Stuart. This guy is safe as houses. As long as he continues to tow the corporate line and doesn't do anything silly like dealing with income inequality he'll be fine.

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