Constitutional Hill

Pardoning criminals not such a good idea, Mr President

In the nineteen seventies and nineteen eighties it was a regular storyline of Afrikaans movies and TV series: the father of our heroine – an attorney – is disgraced after it is discovered that he had stolen money from his clients by misusing the money placed by his clients in trust with him, and he is convicted of theft and sent to prison.

The reputation of the family is destroyed and, because of all the stress and the shame, the disgraced attorney’s daughter uncharacteristically finds solace in the arms of an unscrupulous pierewaaier (dandy), who seduces her and turns her into a “fallen woman”. She falls pregnant (because God believes that “bad” girls must be punished) and flees to Paris where she prettily mopes around and stares at the Eiffel tower and at the Seine. Alternatively she stays in Cape Town and commits suicide by dramatically walking into the ocean, a-la Ingrid Jonker.

The point is, those of us subjected to this script were brought under the strong impression that for an upright member of society – an attorney nogal – to steal money from his clients was a disgracefull and disgustingly dishonest act, exactly because of the trust relationship that was supposed to exist between an attorney and his or her clients. Luckily, puritanical Christian Nationalists no longer rule South Africa, so those of us who speak Afrikaans and have a pale-ish skin no longer have to fear God’s wrath because we enjoy sex or because we believe in equality for all. Neither are we forced to go to church to pray for rain or the defeat of communism and the ANC.

But maybe we have gone a bit overboard in reacting to these bizarre Christian Nationalist values. Surely some of us seem to be far too forgiving of the crooks who steal other people’s money or take bribes – even if the bribe was solicited by Schabir Shaik? We even elect some of those implicated in criminal acts as political leaders. Should we really send a signal that stealing innocent people’s money is something easily forgiven – as long as one is married to the “right” person and has opportunistically aligned oneself to the “right” political faction inside the ANC?

Was it not bad enough that we sullied our democracy by pardoning all those involved in apartheid attrocities? Surely at some point we should start insisting that commiting a crime should disqualify one from being celebrated as an upstanding member of society?

I was wondering about this when I read on Sunday in City Press that President Jacob Zuma had expunged the criminal record of the husband of the acting prosecutions boss, Advocate Nomgcobo Jiba. Zuma’s spokesperson Mac Maharaj confirmed to City Press that former lawyer and Scorpions member Booker Nhantsi’s criminal record for stealing a client’s money from his trust fund was erased in September 2010. Nhantsi, who worked as an attorney before being appointed a deputy director in the Eastern Cape Scorpions, was convicted of theft in the Mthatha High Court in 2005. He had dipped into funds totalling R193 000 held in a trust for a client in 2003. He was sentenced to five years imprisonment, two years of which were suspended for a period of five years.

City Press reports that Jiba is closely associated with Lieutenant-General Richard Mdluli, the “controversial” head of the police crime intelligence unit. (Calling Mdluli controversial is a bit like calling George W Bush controversial for allegedly ordering the torturing and also the killing of thousands of non-Americans, but sometimes we use these euphemisms to keep ourselves sane.)

Mdluli is alleged to have murdered a rival in a love triangle and to have stolen money from a secret crime intelligence slush fund. When Jiba was in some legal difficulties (she was suspended by the NPA in 2007 for allegedly assisting the police to defeat the ends of justice by countering the Scorpions’ investigation of former police chief Jackie Selebi), Mdluli assisted her by making an affidavit in Jiba’s favour that supported the notion of a conspiracy against Selebi. (Zuma and his inner circle seem to really take all this talk of conspiracies rather seriously.)

Now the slush fund that Mdluli is alleged to have corruptly misused is the same slush fund that City Press claims was used to pay for renovations of almost R200 000 to Police Minister Nathi Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. The newspaper claims that these allegations were contained in a top-secret police report that was handed to acting police chief Lieutenant General Nhlanhla Mkhwanazi last month, which names Mthethwa in the Hawks’ investigation into the plundering of the R200 million secret service account. City Press speculated that Mthethwa had ordered an end to the Hawks probe because of his involvement in the scandal.

Mthethwa denied these charges, claiming that the “minister is the political executive of the SAPS and as such does not get involved in operational matters.” This claim of non-involvement in operational matters was directly contradicted by Hawks spokesman McIntosh Polela who conceded that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. Someone seems to be lying about something here.

But back to the tawdry pardoning of (now) former criminal, Booker Nhantsi. Could he have been pardoned by President Zuma because he happens to be on the “right” side of the internal factional fight? Was it done to keep the acting NPA boss sweet to ensure that the criminal charges against Zuma will never be resurrected? And what does this pardoning say about the moral compass of our President? Surely it reinforces the perception that our President does not have a moral compass at all and that he is not one to let small detail like criminality stand in the way of loyalty and protection of his own interests of staying out of jail.

Now, it must be said that the President has the constitutional power to pardon any criminal in terms of section 84(2)(j) of the Constitution. However, the Constitutional Court has said in the Hugo case many years ago that the exercise of this power can be reviewed. Where the President pardoned an individual he is at the very least required to exercise that power in good faith.

If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

The Constitutional Court confirmed this view in the Albutt case where it found that the pardoning of a group of apartheid era prisoners with the aim of effecting reconciliation was unconstitutional because the victims of the apartheid era crimes were not consulted by the President before the decision to pardon the prisoners were taken. In that case the Court stated (and this might well come as something of a surprise or even a shock to President Jacob Zuma and some of his advisors) that:

It is by now axiomatic that the exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the rule of law. More recently, and in the context of section 84(2)(j), we held that although there is no right to be pardoned, an applicant seeking pardon has a right to have his application “considered and decided upon rationally, in good faith, [and] in accordance with the principle of legality”. It follows therefore that the exercise of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it.

When asked about the reasons behind this seemingly unethical but possibly politically expedient pardon, Mac Maharaj made the following statement:

A pardon is an act of mercy by the president if the president is convinced that it is in the public interest for a pardon to be granted. In Nhantsi’s case, he was convicted of the offence of theft, which was his first and only offence. He had also served his sentence. Nhantsi is also a qualified and skilled individual who can make a contribution to society. He was therefore pardoned accordingly.

These reasons could, of course, apply to many other people who have been convicted of crimes of dishonesty (many of whom, including Schabir Shaik, who have not been pardoned by the President), but in the absence of any proof of a bribe being paid to effect the pardon or of other bad faith factors playing a role in the pardon, one will have to conclude that the pardon – although politically scandalous and unethical - was not unlawful. (I know this distinction is not one that some politicians and some supporters of the President care to make.)

Finally, in this fog of allegations, denials and counter-allegations, this pardoning of a former dishonest thief who happens to be in the “right” political faction inside the ANC (and whose wife is in a position to decide on whether to revive criminal charges against President Zuma), will further enhance the perception that our President is at least ethically (if not legally) tainted and that he makes decisions based on his personal interests and not based on the interest of the government he leads or of the nation.

But sadly none of those implicated in these unsavoury events will flee to Paris in disgrace. Neither will they beleive that the family or party they belong to was shamed by their actions. Instead they are more likely than not to claim that they have been the victims of a terrible conspiracy concocted by unnamed foreign intelligence services, opponents inside the ANC, Helen Zille, HF Verwoerd and – who knows – James Bond himself.

Watch this space.

  • ozoneblue

    “Pardoning criminals not such a good idea, Mr President”

    Luckily the ANC pardoned PdVs nazi-like Afrikaner parents and their evil racist White offspring.

  • ozoneblue

    PdV,

    Can I ask you – why so much distrust and this feverish obsession with trying to smear the ANC with all kinds of blatantly untrue bullshit, innuendo, rumours and wild conspiracy theories?

    Wouldn’t it have been better if you just voted NO and perhaps listened to your “nazi-like” mamma and pappa when they said the African was not ready to govern.

  • Deloris Dolittle

    Whao, this is the closest you have ever come to saying there was some good during the apartheid era, Pierre!

  • ozoneblue

    Deloris Dolittle
    April 10, 2012 at 13:52 pm

    “Whao, this is the closest you have ever come to saying there was some good during the apartheid era, Pierre!”

    Well I don’t know if that is true. He has already vehemently defended identity politics, racial classification and even racial discrimination where such racial discrimination is deemed to be “positive”.

  • Chris (Not the right wing guy)

    Its becoming harder and harder to believe Zuma and Co. is serious in fighting crime. When I read the newspaper this morning I thought it was a belated April fool’s joke. Clearly Zuma thinks that to steal isn’t so bad. But I must admit, I find it very difficult to understand the link with the old movies.

  • Jama ka Sijadu

    “And what does this pardoning say about the moral compass of our President?”

    Hahahahahahaha – thats for the laughs Prof. You are really on form today!

  • Jama ka Sijadu

    If a man who “rapes” and / or impregnates his friends’ daughters can be said to have a moral compass, Santa Claus & the Easter Bunny may well be real.

  • Chris (Not the right wing guy)
  • Gwebecimele
  • Mikhail Dworkin Fassbinder

    Hey Maggs/OB/Gwebe

    We have been free now for nearly 30 years. And yet we still have to face the RACISM of the liberal media. How do you explain that?

  • Maggs Naidu – Zuma must go!

    ozoneblue
    April 10, 2012 at 13:46 pm

    Hey OB,

    “trying to smear the ANC with all kinds of blatantly untrue bullshit, innuendo, rumours”.

    PdV should indeed take a lesson from Zuma and his spinners.

    It’s a skill to spread TRUE bullshit, innuendo and rumours!

    WDYS?

  • Gwebecimele
  • Maggs Naidu – Zuma must go!

    Gwebecimele
    April 10, 2012 at 16:46 pm

    Gwebs,

    “He does not need a pardon.”

    I dunno whether that’s true.

    The guests seem to want to keep a visible distance.

    Maybe they don’t fancy the idea of the dancer dropping in on them without enough notice.

    Or maybe they don’t want their assets stripped!

  • sirjay jonson

    Chris (Not the right wing guy)
    April 10, 2012 at 14:56 pm

    Re: http://www.news24.com/SouthAfrica/News/This-country-is-safe-Zuma-20120410

    The comments certainly give a realistic indication of South African response.

    ozoneblue
    April 10, 2012 at 13:38 pm

    You express yourself as a bitter, confused, vile commentator. Perhaps you should revisit an understanding of defamation laws, and further, consider some
    psychiatric counselling.

    Spare us your daily vitriol, please. Its far too often nauseating.

  • ozoneblue

    sirjay jonson
    April 10, 2012 at 18:47 pm

    I tell you what Sirjay. Lets have a “morality” shoot out between Cde JZ and what is his name again … “Pierre de Vos”.

    “Convicted of conspiring to overthrow the Apartheid government which was led by white minorities, he was sentenced to 10 years’ imprisonment, which he served on Robben Island with Nelson Mandela and other notable ANC leaders who were also imprisoned there. Whilst imprisoned Zuma served as a referee for prisoners’ association football games, organised by the prisoners’ own governing body, Makana F.A.[17]

    After his release, he was instrumental in the re-establishment of ANC underground structures in the Natal province.[5]”

    http://en.wikipedia.org/wiki/Jacob_Zuma#Imprisonment_and_ban

    I guess the question is really – just who the fuck is “Pierre de Vos”?

  • ozoneblue

    The full expose on the evil NOMGCOBO JIBA.

    http://www.npa.gov.za/ReadContent510.aspx

    “In 1999 she moved to Pretoria and worked for an accounting firm Deloitte & Touche as a Senior Forensic Consultant. Her core function was forensic investigations and analysis which often involved the flow of fund analysis, to detect fraud or corruption.
    Later in the same year she joined the then Investigating Directorate for Serious Economic Offences (IDSEO) in Pretoria as a Senior State Advocate. In 2001 the IDSEO was disbanded and the Directorate of Special Operations (DSO) was established. Later in the same year she was appointed a Deputy Director of Public Prosecutions. In 2006 she was appointed a Senior Deputy Director of Public Prosecutions.
    Her core functions involved the investigation and prosecution of complex commercial crime cases committed in an organized fashion. Part of her duties entailed giving guidance to investigators and prosecutors with regard to their cases, as well as to render guidance and assistance to accountants with regard to drawing up of forensic accountants’ report with flow of funds analysis. ”

    Even more eviler than that crusader for corruption Judge Willem Heath and his corrupt puppet co-conspirator Willie Hofmeyr.

  • Maggs Naidu – Zuma must go!

    “Some sick and malicious people are spreading false stories about [Robert Mugabe]being seriously ill while others are saying he is dead or dying out there,” one Zanu-PF official said.

    http://www.iol.co.za/news/africa/mugabe-s-men-slam-media-lies-1.1273040

    Zanu-PF official – chill a bit!

    In South Africa seriously ill, dead or dying is nothing to be too concerned about.

    We have coined a few relevant expressions just for your comfort :

    - as terminally ill as Shabir Shaik = feel free to slap about journalists, like the missus did in Singapore;
    - as sick as Jackie Selebi – too late Shabir already cornered that market;
    - as sick as Juju = buy more time till your own day of reckoning;
    - as sick as Judge Motata = too much tea;
    - as sick as Pres Zuma = not yet showered;
    - as sick as Helen Zille = saying really stupid things without (or with) thinking;
    - as sick as Jimmy Manyi = as sick as Jimmy Manyi;
    - as sick as Mac Maharaj = what a job!

  • ithinkozoneblueismad

    Prof Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance and teaches in the area of Constitutional Law. He has a B Comm (Law), LLB and LLM (cum laude) from the University of Stellenbosch, an LLM from Columbia University in New York, and an LLD from the University of Western Cape. He taught at the University of Western Cape from 1993 to June 2009 and held a Professorship at that institution from 2001. Prof de Vos is the chairperson of the Board of the Aids Legal Network and is a board member of Triangle Project. He writes a Blog on social and political issues from a constitutional law perspective, which is widely read and quoted.

    Some of his more recent articles include the following:

    “Grootboom, the right of access to housing and substantive equality as contextual fairness” SAJHR vol. 17 (2001) 258.

    “South Africa’s Constitutional Court: starry-eyed in the face of History” Vermont Law Review vol. 26 (2002) 837-864.

    “Transformative Justice: Social and Economic Rights in South Africa’s Constitution” 243-262 Peter van der Auweraert, Tom de Pelsmaker, Jeremy Sarkin, Johan van de Lanotte Social, Economic and Cultural Rights: and appraisal of current European and International Developments (2002) Maku Publishers, Belgium.

    “So much to do, so little done” the right of access to anti-retroviral drugs post Grootboom vol. 7 (2003) Law, Democracy and Development 83.

    “Gay and lesbian legal theory” 328-353 in Roeder C & Moelendorf (eds.) Jurisprudence (2004) Juta publishers.

    “Same-sex sexual desire and the re-imagining of the South African family” South African Journal on Human Rights vol. 20 (2004) 179.

    “Critical reflections on South Africa’s Civil Union Saga” (co-authored with Jaco Barnard-Naude)(2007) part IV South African Law Journal 795-826.

    “The ‘inevitability’ of same-sex marriage in democratic South Africa” vol. 23 (2007) South African Journal on Human Rights 432-465.

    “From heteronormativity to full sexual citizenship?: Equality and sexual freedom in Laurie Ackerman’s constitutional jurisprudence” in J Barnard-Naude, D Cornell & F Du Bois (eds) Dignity, Freedom and the Post-Apartheid Legal Order (2008)

    “Experience of Human Rights in Africa: Challenges of Implementing Economic, Social and Cultural Rights” in Chris Maina Peter (ed.) The Protectors: Human Rights Commissions and Accountability in East Africa (2008) 1-28.

    http://www.publiclaw.uct.ac.za/staff/pdevos/

  • Maggs Naidu – Zuma must go!

    ithinkozoneblueismad
    April 11, 2012 at 0:26 am

    Whatever make you think that?

  • ozoneblue

    ithinkozoneblueismad
    April 11, 2012 at 0:26 am

    I think I get it. While the immoral Cde Zuma was doing time on Robben Island sacrificing the best years of his life in a selfless struggle for a just and nonracial South Africa, that moral pillar of society Pierre De Vos got himself a very solid education at the Apartheid University of Stellenbosch?

  • Ricky

    Ozoneblue, just what is the purpose of printing the mini-cv of Ms. Jiba?

    It does not say ANYTHING as to whether she is “evil” (to use your own term – which I find somewhat ridiculous to use about most people, including Ms Jiba – more relevant would be to say whether Ms Jiba has abused her position etc) or not.

    It would be as (ir)relevant to use e.g. the following “mini-mini-CV” to say anything meaningful about George Bush Jr. being “evil” or not: “George Bush Jr., degree from Harvard (I think), governor of Texas from ** to ** and president of the US 2000-2008″

  • ozoneblue

    Ricky
    April 11, 2012 at 7:47 am

    “Ozoneblue, just what is the purpose of printing the mini-cv of Ms. Jiba?”

    Because now she is being smeared with sinister motives and the indiscretions of her husband. Did you note that PdV and City Press never viscously attacked her credibility back in 2006 when she was still associated with the Scorpions. This my friend, is how propaganda works.

    Voice of America:

    “But Zuma’s government isn’t happy and academic de Vos says that hovering in the background is the personal interest of Zuma and that this should never be underestimated. Zuma has advocated for an amendment to the constitution to remove the power of the constitutional court to review government policies and actions.”

    http://www.voanews.com/english/news/africa/ANC-to-Review-South-Africas-Model-Constitution-144889685.html

  • ozoneblue

    “*remove the power of the constitutional court*”

    I want to challenge our moral and honest Pierre De Vos to substantiate that characterisation of what Zuma and/or the ANC have said with facts.

  • Brett Nortje

    Ricky says:
    April 11, 2012 at 7:47 am

    OBS does not know what a non-sequitur is.

  • Maggs Naidu – Zuma must go!

    ozoneblue
    April 11, 2012 at 8:54 am

    Hey OB,

    “I want to challenge our moral and honest Pierre De Vos to substantiate that characterisation of what Zuma and/or the ANC have said with facts.”

    Indeed you should.

    A live public debate between you and PdV will be good.

    WDYS?

  • ozoneblue

    Maggs Naidu – Zuma must go!
    April 11, 2012 at 9:24 am

    I’m way to good looking and hetero to make it on to the telly as a “White liberal”.

  • Mikhail Dworkin Fassbinder

    OB

    You raise a good point about not making it on telly. It reminds me of another question: Why is it that, a quarter century after we gained our freedom, our public discourse remains dominated by liberals?

  • Zoo Keeper

    This power to pardon is a little of a throw-back to the days of monarchy.

    To me, there may be a basis to challenge this power on the basis that it infringes on the separation of powers. That which a court has done, should not be undone by a politician.

    Have a go at that one Prof?

  • Ze Philosopher

    The South Africa we hoped for and the South Africa we have come to know are totally different. We hoped for the Rainbow nation-got Tenderprenuer one; We were led by man of honour, Nelson Mandela, now Jacob Zuma. It’s sad to note that it us South Africans that are in the firing line. Ours is a President whose good at returning favours, well acquainted with the language tit-for-tat. Bottom line is all this is encouraged by ill advised decisions from arrogant oxymoron who think we owe them our lives. It’s annoying to hear people always bringing up the past as to how Zuma and co suffered, well they are still alive if you ask me because the real heroes died for the course of this contry’s liberation. All that is evident in our current crop of leaders is just arrogance and ignorance- a deadly combination that is dragging this country further back. And OB, you really are one deliquent son of a gun.

  • sirjay jonson

    Mikhail Dworkin Fassbinder
    April 11, 2012 at 10:11 am

    … “Why is it that, a quarter century after we gained our freedom, our public discourse remains dominated by liberals?”

    I would suggest its because of their intelligence, compassion, and sense of duty.

  • Gwebecimele
  • Gwebecimele
  • Gwebecimele

    Tell this man that he is part of “Human Race” and there is something called freedom.

    http://www.sowetanlive.co.za/news/2012/04/11/i-am-tired-of-living-like-a-dog-says-garden-boy

  • Gwebecimele

    Prez Zuma warned us about the thugs?????????

    http://www.dispatch.co.za/news/article/3185

  • bob

    OB,

    You know how to use copy & paste, good. This was the first step in your education, now start using your brain and ask the question why would cde showerhead pardon a conficted thief with whom he had nothing to do.

    All of Zuma’s actions target his survival as a politician, no more no less. In fact we can safely say that this country does not have a government at the moment as nobody is governing for the benefit of the nation or its citizens. Everything that happens is because of internal ANC fights and the access to patronage.

  • Michael Osborne

    In defense of Obama “intimidation” of the Court

    http://www.tnr.com/print/blog/jonathan-cohn/102507/obama-supreme-court-lochner-comments-affordable-care-act

    President Obama caused quite a stir last week with a pair of comments he made about the Supreme Court. Some critics said he was citing constitutional law incorrectly. Others said he was trying to intimidate the justices. Some said he was doing both things.

    The intimidation charge was just silly. Obama told reporters he was “confident” the Supreme Court would uphold the Affordable Care Act. That’s the sort of thing politicians say all the time. Intimidating the court would have been threatening to disregard it, as President Andrew Jackson is said to have done in 1832—or, perhaps, hauling the justices before congressional committees, as President-wannabe Newt Gingrich promised to do just a few months ago. At most, Obama was warning that he took the case seriously and was prepared to criticize the court, loudly, if it ruled the law unconstitutional. Surely that’s within acceptable bounds of presidential behavior.

    As for the accuracy of Obama’s claim, the critics have a point, albeit a small one: The president got a few facts wrong with the first of his two statements. Obama said a decision invalidating a duly passed law would be “unprecedented,” when, in fact, the Court has invalidated duly passed laws, from both Congress and state legislatures, throughout its history. This particular group of justices did it less than two years ago, via the infamous Citizens United decision striking down parts of the McCain-Feingold campaign finance law.

    I assume that Obama, a graduate of Harvard Law School, is aware of these facts. But if you are one of those people convinced Obama is really a dullard who can’t get by without his teleprompter, then go wild. This is your moment.

    What’s more important, for the rest of us, is that Obama corrected and clarified the misstatement one day later. Striking down this sort of economic legislation, Obama said, would be unprecedented in the modern era—and reminiscent of the early 20th Century, when the Court threw out multiple pieces of economic regulations from the Progressive Era and then the New Deal. Here’s how Obama put it, word for word:

    We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce—a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

    This claim has also drawn criticism from the right. But it is totally defensible.

    I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified (and quite unlike more defensible instances of judicial activism, such as Brown v. Board of Education): It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since those early New Deal cases, just as Obama suggested.

    But let’s look more closely at that reference to Lochner, which has been a subject of particular controversy. Lochner refers to Lochner v. New York, a 1905 decision in which the Supreme Court struck down a law establishing working conditions for the employees of bakeries. In that case, a five-justice majority reasoned, in effect, that the Fourteenth Amendment’s guarantee of “substantive due process” included the freedom to make private economic decisions without government interference.

    By passing a law regulating contracts between employers and employees, the justices said, the federal government had violated the terms of that guarantee. That kind of laissez-faire logic prevailed on the Court until the 1930s, when the justices recognized states sometimes needed to interfere with private economic decisions in order to promote the health and well-being of its citizens. (If memory serves, the first such case involved a minimum wage law in the state of Washington.)

    To some conservatives, comparing Lochner to a possible decision invalidating the Affordable Care Act makes no sense, because Lochner was about state regulation and the heath care case is about federal regulation. Among those mocking Obama for this comparison was James Taranto, of the Wall Street Journal:

    In citing Lochner, the president showed himself to be in over his head. … Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

    It’s appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It’s astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.

    But Obama’s invocation of Lochner here was neither ignorant nor particularly unusual. As Taranto surely knows, historians routinely use “Lochner” as a generic description for those early 20th Century rulings, when the justices were striking down all of those economic regulations.

    In some of those cases, yes, the justices were focusing on the Fourteenth Amendment’s protection of economic liberty from interference by state governments. But in other cases, the justices threw out economic legislation because they had embraced a particularly narrow view of the federal government’s power to regulate interstate commerce. Among the most famous of these cases was the one that Andrew Koppelman, the Northwestern Law Professor, described at TNR last week: Bailey v. Drexel Furniture Company, a 1922 decision in which the Court invalidated a federal law outlawing child labor. As Koppelman noted, that case had striking parallels to the case of the Affordable Care Act.

    The Supreme Court eventually repudiated the logic in Drexel Furniture, much as it did the logic of Lochner. Partly, the justices were reacting to popular sentiment (and, in some tellings, President Franklin Roosevelt’s threats to pack the court with more sympathetic justices.) But partly they were recognizing that the country really had changed: In the contemporary, integrated economy, government in general and the federal government in particular needed more regulatory authority in order to keep capitalism functioning and to protect citizens from harm.

    Although at least some libertarians openly wish for a return to Lochner-era notions of economic liberty, many (and probably most) historians look back on the Lochner decisions as a blemish on the Court’s history, albeit for different reasons. That’s one reason why conservatives are so sensitive to Lochner references: Nobody wants that label. In fact, when a government lawyer raised the specter of Lochner during oral arguments over the health care law two weeks ago, Chief Justice John Roberts sternly made the very same point Taranto did: Lochner was about state regulation, not federal regulation.

    But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.

    follow me on twitter @CitizenCohn

    Update: I reworded a few passages of the (hastily written) original shortly after posting, to better capture some nuance and, more generally, to clarify what I had meant to say in the first place. I also made clear that while Obama was not intimidating the court, he was laying the groundwork for criticizing it, which seems totally fair game. For more on Lochner’s relevance to the case against the Affordable Care Act, see this article.

  • Ze Philosopher

    It’s our turn to eat kind of corruption found in goverment under the leadership of President ZUMA is just embarrassing to say the least. The rationale for the pardoning is to get the Hawks and NPA of the backs of crooked politicians and their friends in high places. Clearly the President is in breach of his undertaking to fight corruption, do we really need such a person as our leader?

  • Andrew B

    The pardoning of anybody by any head of state in any democracy is never without controversy. It is not a finding of Not guilty. Every American president does it on leaving office – do the names Wiiliam Calley or Caspar Weinberger mean anything here? Was not the amnesty handed down by the TRC actually a pardon of sorts? I love this quote from Wikipedia – The history of this debate reaches at least as far back as Plato, and evidence of it is found in many cultures

  • Dmwangi

    @Sirjay:

    ‘… “Why is it that, a quarter century after we gained our freedom, our public discourse remains dominated by liberals?”

    I would suggest its because of their intelligence, compassion, and sense of duty.’

    I would suggest inane rejoinders like this are indicative of an illiberal, close-minded dogmatist who presupposes the truth of modern liberalism and resorts to half-witted diatribes when challenged to defend it on its philosophical merits.

  • ozoneblue

    What these racist conspiracy fruit loops don’t realize is just how immaculate Zuma’s planning and foresight must have been since the pardoning was in sep 2010 and Jiba only acted as ND of NPA a couple of months ago.

  • mikeA

    If I am correct, the pardon was carried out in 2010, which predated Ms Jiba’s elevation to the highest position. Therefore, it was not necessarily the pardon that was wrong (unless viewed in retrospect).

    What is “wrong” is that the appointment to the position of NDPP is improper because the person has a debt of gratitude to the President, and therefore probably cannot be said to act “without fear or favour”.

    Is this appointment also unlawful?

  • ozoneblue

    @mike

    If that sexist reasoning is correct then Bulelani Nguca should never have been appointed NDPP ?

  • bob

    What can be said about a person that surrounds himself with crooks, murderers and drug runners. In fiction one would be reminded of Don Corleone, but then his Brutus came.

  • mikeA

    @ozoneblue,

    When Mr Ngcuka was appointed, his wife did not occupy a high position. And even when she was “promoted” he did not favour the political powers-that-be – although it may have been that a potential conflict of interest was introduced at that point. Maybe Mr Mbeki was trying to buy favour with his NDPP, but it clearly did not work.

    And putting somebody in a high political position is not quite equivalent to issuing a Presidenntial Pardon to a person, and removing their criminal record.

  • Maggs Naidu – Zuma must go!

    mikeA
    April 12, 2012 at 16:41 pm

    mikeA

    “Maybe Mr Mbeki was trying to buy favour with his NDPP, but it clearly did not work.”

    Not sure why you think that, but recall that Ngcuka appeared at press conferences with his political masters on issues which ought to have been out of the political domain.

    The party and state was certainly not separate at the time.

    There were clearly political imperatives associated with the charging of Zuma.