【世事关心】一个更强大的最高法院 对美国有利还是有害?

Title: Will a more Powerful Supreme Court Help or Hurt American Purpose?

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【新唐人2019年01月29日讯】【世事关心】一个更强大的最高法院 对美国有利还是有害?

最高法院的一举一动直接影响到我们每一个人的生活,从二战结束以来,最高院的判决改变了州立法机构划分国会选区的办法,剥夺了胎儿的法律保护,禁止学童在课前的祷告。

建国者们在宪法头条里就确立了三权分立的原则,因为国会是根据宪法第一条成立的,有些法律学者就因此认为国会最重要。此外宪法的第二条和第三条还规定了总统和最高院的职权,在这一期里我们将探讨最高法院如何变得如此重要。

标题: 一个更强大的最高法院对美国有利还是有害?

Title: Will a more Powerful Supreme Court Help or Hurt American Purpose?

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川普总统或许会提名上任以来第三位最高法院大法官。民主党人会如何面对自由派势力在高院示威?

President Donald Trump will likely nominate a third Supreme Court justice. How will Democrats react to the total loss of liberal dominance on the Supreme Court?

Thomas B. Teston(《民主档的灵魂》作者):“我认为,自由党人和民主党人,有必要重新与美国人民建立联系,并利用人民的选举权力推进改革议程。”

Thomas:“  I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.”

国家在意识形态上处于分裂状态。拥枪权的捍卫者如何面对校园枪击事件的受害人家属?

The nation is deeply divided. How did the man whose case set the precedent for Second Amendment rights face school shooting victims’ families?

Dick He(原告/华盛顿特区对海勒最高法院案件):“几年后Sandy Hook发生了大屠杀,我是否要负间接责任呢?”

Dick Heller: “I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault? ”

在很长一段时间里,最高法院只是一个陪衬。它是如何变得越来越重要,以至于成为国家政治体系中的一个支配力量的呢?

For most of American history the Supreme Court was an afterthought. How did the Supreme Court become supreme and come to dominate the American political system?

Ilya Shapiro(卡托研究所Robert A. Levy宪法研究中心主任):“问题是,几十年来华盛顿的权力、联邦的权力一直在增长,这就是为什么最高法院的重要性与日俱增。”

Ilya:“ And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. ”

萧茗(Host/Simone Gao):大家好,我是《世事关心》的主持人萧茗。这一期我们关注最高法院。最高法院的一举一动直接影响到我们每一个人的生活。从二战结束以来,最高法院的判决改变了州立法机构划分国会选区的办法,剥夺了胎儿的法律保护,禁止了学童在课前的祷告。建国者们在宪法头三条里就确定了三权分立的原则。因为国会是根据宪法第一条成立的,有些法律学者就因此认为国会最重要。此外,宪法的第二条和第三条还规定了总统和最高法院的职权。在这一期《世事关心》里,我们将探讨最高法院为何变得如此重要,以及一个将由保守派主导的高院会如何影响国家的政治。参与最高法院案件诉讼的人士会介绍他们的经历。

Welcome to《Zooming In》,I am Simone Gao. In this edition we look at the Supreme Court. All Americans are affected by decisions made by the Supreme Court. Since the end of World War II, these rulings have changed how state legislatures draw congressional districts, stripped legal protections from unborn children, and stopped school children from praying before classes begin. The Founding Fathers created each of the three branches of the federal government in the first three articles of the Constitution. Because the legislative branch was created in Article One, legal scholars agree that Congress is to have primacy in the government. Article Two is the executive branch, and Article Three is the judicial branch, which includes the Supreme Court. In this edition of《Zooming In》,We examine how this third branch of government became so powerful and what it means to national politics when a liberal Court transitions into a conservative court. We go behind-the-scenes with participants who share their experiences in Supreme Court cases.

第一部分:两个真实的故事

PART 1: Two “People”Stories

宪法第二修正案禁止国会限制拥枪权。但是许多人包括本期嘉宾迪克·海勒,却在这件事上遇到了困难。海勒先生在90年代曾任高院院警,每天下班后,他必须交还配枪,在没武器的情况下,骑车穿过治安不好的居民区回家。

Narration: The Second Amendment states that Congress shall not infringe on the right to keep and bear arms. But for Dick Heller and millions of Americans who wanted to own a gun, it was a different story. Mr. Heller was a special police officer guarding the Supreme Court back in the ‘90s. Every day at the end of his shift, he would turn in his pistol at the armory and ride his bike home through increasingly dangerous neighborhoods–unarmed.

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“法官们注意到,用政府发行的枪支保护他们的其中一个人是诉讼当事人。我决定走司法维权的路,我是灵机一动想出了这个办法。最高法院需要我用枪来保护他们,但是我却不能拥有一支枪来保护自己。”

Dick Heller:“ It did not go unnoticed by the justices that one of the people guarding them with a government-issued firearm was the litigant. And when I thought about it, a light bulb came on one day. And it occurred to me they give me a gun, but I can’t have a gun. I can protect them, but I cannot protect myself.”

海勒向DC政府申请一年期的拥枪执照,他要买手枪来看家护院。但是他的申请被驳回了。海勒于是起诉DC政府侵犯了他的宪法权利。费时20年,他的官司一路打到最高法院。在2008年12月26日,最高法院以5-4判海勒胜诉。Antonin Scalia大法官在当年6月26日作为主笔撰写了判词。

Heller applied for a one-year license for a handgun he wished to keep at home, but his application was denied. He then sued the District of Columbia for violating the Second Amendment. During the next 20 years, he took his case all the way up to the Supreme Court.

On December 26, 2008, the Supreme Court ruled in favor of Heller’s rights to bear arms. On June 26 that year, Justice Antonin Scalia delivered the opinion for the 5-4 majority.

Antonin Scalia(大法官):“有些人认为宪法《第二修正案》过时了。我们虽然有最强大的军队、训练有素的警队,但是社会上的涉枪犯罪依然很严重。治安状况的好坏可以讨论,但是法院无权宣布宪法第二修正案作废。”

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

萧茗(Host/Simone Gao):许多人为这一刻已经等了很久了。海勒告诉我说,这是高院听证会前最令人难忘的瞬间。

A large portion of the American public had waited decades for this moment. Heller told me his most memorable moment before the high court hearing.

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“在高院听证会的前夜,发生了一件趣事。当时是3月,天气很冷,我因为住的近,就在傍晚骑上车去高院。我发现有超过50人睡在附近的人行道上。我就问他们:怎么啦?怎么大家都在这儿睡?真是件怪事。当时他们没认出我来,我和在场的许多人都聊了聊。我跟他们讲:晚上会冷,太阳要下山了,我买了400剂止咳糖浆,我跑回去从队首开始,给每人分发。当时太阳已经落山了,我和他们讲,别被冻咳嗽了。在场的人纷纷感谢我的善行,但是还是没认出我。第二天,我穿上大衣,系上领带,回到现场和人们一一握手,他们才认出我来,人人都感到惊讶,他们兴奋的不得了,因为我来到他们中间,我们都是来参加听证会的,我也是普通人。”

Dick Heller: “the story that I really like to tell is “the people” story because the night before the hearing, it was very cold in March, and I went to—I only lived a block away, so I pulled up on my bicycle and said, “Hey, y’all, what’s happening here? Why is everybody sleeping on the sidewalk?” An aw-shucks kind of thing. And nobody knew. Nobody recognized me. And it was cold, so I talked to a lot of people, and there was over 50 people sleeping on the sidewalk, so I said, “It’s getting cold, the sun’s going down.” I went to the drug store and bought two big 200-piece cough drop bags. I bought 400 cough drops, and then I went back and started at the head of the line, the sun had gone down by now, and gave everybody a handful of cough drops. And I said, “Here, you’re going to need these.” And everybody was saying, man, that dude’s nice. Who was that? You know, nobody. So the next morning I’m in a coat and tie, and I go down the line and shake everybody’s hands and they suddenly recognize me. Oh, no. Oh, no, you didn’t. Oh, yes, I did. And they got a kick out of that because I was out there meeting the people because we were all kind of going in together to hear this case. I was just a normal people.”

萧茗(Host/Simone Gao):“他们进不去高院,对吗?他们只能在外面等?”

“ Right. They’re not allowed in the Supreme Court, right? They’re outside waiting?”

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“听证的地方只能容纳125人。他们为了能进去就早早的在外面安营扎寨,我觉得。”

Dick Heller: “They had to wait outside because so many people wanted to get in that they were sleeping on the sidewalk to be the first to enter the Court. The Court takes about 125, I think.”

萧茗(Host/Simone Gao):“ 现场去了多少人?”

“ How many of them were there?”

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“几百人。听证会场满员之后,场外等待的民众就轮流进场旁听。然后每10分钟允许20人轮流入场站着旁听。”

Dick Heller: Hundreds. And they were swapping them in after the courtroom packed, then they would swap standing-room only 20 at a time for about 10 minutes.

1年以后,这件胜诉案的影响形成了一个浪潮。

A year after he won his case, Dick Heller realized he had started a tidal wave.

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“第二修正案基金会的Alan Gottlieb发表了声明,应该是他,他说我的案子胜诉了。在那之后的一年里,有超过75个针对地方枪支管制措施的诉讼案。我当时坐在第一排,我感到难以置信,我只知道我自己的案子,我没有想到这类抗议会上升到75宗。在那之后又过了一两年,诉讼案的数量达到了300宗。我对自己说:我们掀起了维权的浪潮。这个例子显示了最高法院的权力,一个正确解释宪法的高院会影响下面那些不愿遵守宪法,尤其是反对第二修正案的巡回法院、市政府、和州政府。在一个法治国家里里,最高法院就具有这样的权力。”

Dick Heller:“And I went up to New York to do a speech. And there were a number of people up there who were more versed in the legal activity than I was. And it was Second Amendment Foundation, Alan Gottlieb, I think, made the statement. It should’ve been him. He said since Dick Heller case was heard and decided, he said there have been over 75 additional gun cases one year later that have hit the courts challenging the local restrictions. I’m sitting on the front row, and my mouth falls open because it was just—all I knew was me and my little bubble, right, in a case here and a case there and then 75. And then a couple of years later, it was announced that there were over 300. I’m going, to myself, “Oh my gosh, we have started a tidal wave.” So what you can see is the power of the Supreme Court to properly interpret the Constitution has created significant challenges to the number of circuit courts and cities and states that just absolutely detest our Constitution and the Second Amendment most of all. So that’s the power they have because we live by laws.”

四年后,海勒碰上了另一个故事

Four years later, Heller got hit by another story.

2012年12月14日,在康涅狄格州的Newtown, 20岁的Adam Lanza开枪打死了20个6-7岁的学童,以及6名校方工作人员。来学校前,他还在家中打死了自己的母亲。当警方赶到现场的时候,Lanza开枪自杀。

On December 14, 2012, in Newtown, Connecticut, 20-year-old Adam Lanza fatally shot 20 children between six and seven years old, as well as six adult staff members. Before driving to the school, he shot and killed his mother at their Newtown home. As first responders arrived at the school, Lanza committed suicide by shooting himself in the head.

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“我非常难过,我被深深的触动了,我打赢了自己的官司,几年后Sandy Hook发生了大屠杀,我是否要负间接责任呢?我想明白了,这里没有我的错。我们的诉求,以及大法官Scalia的判决,是为了增强人们自卫的能力。家长们和Sandy Hook的校董们应该知道,学校必须有保安,或者有枪来防卫,他们为了省钱而不作为,没想到会有后果。如果他们仔细想想从前发生的校园枪击事件,就会意识到应该采取防范措施。我打赢了自己的官司,在法律上确认了他们拥枪自卫的权利,只是校方和家长没有实行,所以有枪才有安全。”

Dick Heller: “Don’t get me crying now. This really touches my heart. But in the case of Sandy Hook, I mean, I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault? And I finally figured out, no, it wasn’t my fault. What we did, and the Scalia decision, was give everyone the option to protect themselves. And the parents and the school board in Sandy Hook had no reason to believe that they would ever need security or armed people on their elementary school campus. So they made a financial decision by making no decision, not knowing about it. Had they ever thought through the previous school shootings, they might have said, gee, maybe we ought to protect our school. And after the Heller decision, they had the right, the specific enumerated, articulated right to do that. And they chose not to. So safety is a choice.”

萧茗(Host/Simone Gao):“校园枪击事件发生后,许多受害学生家长支持更严格的枪支管控措施。他们认为控枪能防止悲剧重演。您有什么看法?”

“ After the school shooting, many victims’ family members supported tighter gun control restrictions over Second Amendment rights. They saw it as a solution to prevent this tragedy from happening again. What would you say to them?  ”

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“奥巴马总统讲过,我们要有比犯罪分子更强的武力。校园随时都有可能被武装犯罪分子侵入,我们不能赤手空拳。过去发生的多起校园和夜总会枪击事件,都是因为发案场所禁止人们带枪。在奥兰多夜总会枪击一案中,带了枪的顾客都被拒之门外,因为佛州法律禁止人们携枪进入任何卖酒的场所。联邦调查局有一张年度犯罪数据统计表,其数据显示,在宏观上,不管是全国范围内,还是地区范围内的统计数据都显示,拥枪的人数与犯罪率成反比。这是常识。”

Dick Heller: “Interesting in that President Obama said when they bring a knife, we bring a gun. Well, when someone brings a gun and you are in high school and you have a knife or a baseball bat or nothing, you have a right to be stupid. Sandy Hook, San Bernardino, the Parkland high school, and the Orlando nightclub shootings, in all those cases, they were, of course, all gun-free zones. And why would a criminal, a killer, want to have a bad day at the office and face gunfire? So they’re going to pick gun-free zones. The Orlando nightclub case, if there was anyone that was concealed carry, they were outside in the parking lot because they were not allowed inside under Florida law because you cannot conceal carry in Florida in an alcohol-serving establishment. So wherever–if you look at the FBI statistics, they have a table in their crime statistics annually called Table 8, and what you can do is you can see, as gun ownership goes up, crime goes down on a macro level, a national level, or a municipality county-city level, that’s just the dynamics of humans. ”

萧茗(Host/Simone Gao):“您反对背景审查吗?”

“ Are you against background checks? ”

Dick Heller(迪克·海勒/原告/华盛顿特区对海勒最高法院案件):“背景审查只会给守法公民购枪带来不便,守法公民才接受背景审查,犯罪分子哪会接受背景审查?他们不去枪店买枪,犯罪分子确实有枪,他们的枪从哪里来?多种渠道。所以背景审查限制不了犯罪分子,只是给购枪者带来一点不便。要让背景审查真的起作用,枪店应该在购枪者被查出有问题的那一刻,马上把人扣住,等候警方派人处理,如果是那样也许行。”

Dick Heller: “All it does is slow people down and puts a burden on the law-abiding citizens. We submit to background checks because we’re law-abiding. What criminal wants a background check? They don’t go into a gun store to buy a gun. Do they have guns? Yes. Where do they come from? My, my. All over the place. So a background check just doesn’t do much. All it does is slows people down a little bit. Now, what you really should have is, when they go for the background check in the gun store and they fail, then a net should drop down and hold them until the police come. Now that’s a pretty good system maybe. ”

最高法院的权力是否超出了宪法规定的范围?

Coming up, Has the Supreme Court grown beyond what the framers had intended?

第二部分:在美国政治体制中,最高法院为何至高无上?

Part 2: How Did the Supreme Court Become Supreme in America’s Political System?

联邦政府通常被描述为政府三个平等部门之间的一个复杂的制衡系统。另一种看待它的方式,是把联邦政府看作由四个审议机构组成的金字塔。最底层是众议院,是拥有435名成员的最强大的机构。众议院是最分散的机构,但在弹劾、战争、税收和开支问题上,众议院有主动权。

The federal government is often described as a complex system of checks and balances among three co-equal branches of government. Another way of looking at it is to see the federal government as four deliberative bodies stacked as a pyramid. At the bottom is the House of Representatives. It is the most powerful body with 435 members. It is the most diffuse body, but its power is that in matters of impeachment, war, taxes and spending, the House has the initiative.

第二个组成部分是拥有100名成员的参议院。它的唯一权力是能够拒绝众议院通过的法案和议案、批准总统任命以及条约。

The second body is the Senate with 100 members. Its sole power is the ability to say no to bills and motions passed by the House and to approve presidential appointments and treaties.

法官的人数没有固定的数目,但根据传统,法庭上有九名法官。法院并没有主动执行权,只有有人请求法院行动时,它才能行动。但是,法院有权拒绝总统、国会和各州采取的任何行动。位于金字塔顶端的是总统,他拥有通过否决权、对国会说“不”的主动权和权力。

There is no fixed number of justices, but by tradition there have been nine justices on the court. The framers gave the court no initiative authority. It can only act if someone petitions it to act. However, the court has the power to say no to any action taken by the president, the Congress, and the states. At the top of the pyramid is the president, who has both the initiative and the power to say no to Congress through his veto.

这种模式在20世纪50年代和60年代被打破了,因为激进的法官们开始自己制定新的法律。这种夺取主动权的所谓创新,其实扰乱了制宪者所创造的宪法制度,因为制宪者根本没有预料到需要考虑权力的制衡。

This model became broken in the   took it upon themselves to create new laws on their own. This seizure of initiative is the innovation that disrupted the constitutional system created by the framers because there is virtually no check for a power the framers never anticipated.

萧茗(Host/Simone Gao):Ilya Shapiro是卡托研究所Robert A. Levy 宪法研究中心主任。我和他谈论了最高法院角色的变化问题。

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. I spoke with him about the changing role of the Supreme Court.

萧茗(Host/Simone Gao):“Mr. Shapiro, 请问最高法院的初衷是什么?它今天的作用是否已经超越了制宪者的初衷?”

“ Mr. Shapiro, what was the original purpose of the Supreme Court and has its role today grown beyond what the framers intended?”

Ilya Shapiro(卡托研究所宪法研究中心主任):“一般说来,最高法院或司法机构应该检查其它部门。因此,如果国会通过了一项超出其宪法权限的法律,那么最高法院或下级联邦法院应该予以否决。如果总统或某个执行机构做了超出其法定权限的事情,法院理应介入。问题是,几十年来,华盛顿的权力,联邦的权力,一直在增长,这就是为什么最高法院的重要性与日俱增。现在我们已经基本习惯了每年六月任期结束时,最高法院会对全国最重要的三四个或六个政治问题作出裁决。而你想在过去的十年里,从医疗保健、移民、种族偏见、堕胎、政治选区划分不公、竞选资金、投票权,凡是你能想到的大的政治争端最高法院都有卷入。这并不是因为最高法院试图介入,试图获得更高的知名度或更多的权力,这只是华盛顿权力集中的一个结果。在一个大而多元的国家,人们会有不同的意见,但最终都得依靠最高法院来解决。我认为,最终减少政治两极化,或者说减少我们过去十年中所经历的危机的方法,是将权力下放到各州和地方政府手中。如果最高法院不需要处理这些联邦权力或行政权力的重大问题时,它就不会被如此受争议。我认为这将是一件好事。其实不仅仅是最高法院,国会也是如此,它也是执行机构。随着权力在华盛顿的集中,所有这些机构都开始行使更大的职权。”

Ilya Shapiro:“ Well, the Supreme Court or the judiciary in general is supposed to check the other branches. So if Congress passes a law that goes beyond its Constitutional authority, the Supreme Court or lower federal courts are supposed to strike it down. If the president or an executive agency does something that’s beyond their statutory authority, the courts are supposed to step in. And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. And so now we have sort of gotten used to the idea that every June at the end of term, the Supreme Court rules on three or four or half a dozen of the most important political issues in the country. And you think about it in the last decade, everything from health care, immigration, racial preferences, abortion, political gerrymandering, campaign finance, voting rights, you name it, a big political controversy, the Supreme Court is involved. And it’s not because the Supreme Court is trying to get involved and trying to earn a higher profile or gain more power. It’s just a function of a system that has concentrated power in Washington. And in a large and diverse country, you’re going to have differences in opinion that ultimately end up resolved by the Supreme Court. I think, ultimately, the way to reduce political polarization, or the tension, the toxicity that we’re living the last decade, is to push power back down to the states and the localities. If the Supreme Court doesn’t have to decide these major issues of federal power or executive authority or what have you, then it won’t be as talked about. I think that would be a good thing. But it’s not just the Supreme Court. It’s also Congress. It’s also executive agencies. As power has centralized in Washington, all of these institutions start playing a larger role. ”

萧茗(Host/Simone Gao):“你刚才提到这些政府部门不应该有这么大的权力。但是他们的权力如何被削减呢?”

“ You just mentioned that these branches of government shouldn’t have so much power. But how can their powers be cut back? ”

Ilya Shapiro(卡托研究所宪法研究中心主任):“我们花了几十年走到今天这一步,也许我们也同样需要几十年才能回到过去。我认为从30年代,最高法院开始批准,在不修改宪法的前提下联邦可以行使超越宪法的权力,这就是华盛顿权力增长的起源。但不仅仅是这样,还因为国会放弃它的权力或者把它的权力委托给行政部门。国会议员可以这样说,我投票支持这项伟大的法律,我将让官员们解决细节问题。如果人们不喜欢这些细节,他们可以责怪该机构,他们不应该责怪我,我通过了这项伟大的法律。但是,是官员、是公务员、是官僚机构他们在做坏事。当然,人们不能游说政府机构或官僚机构,人们只能起诉他们。这就是为什么所有这些关于政策观点或价值观冲突的重大争议最终都在法庭上解决,而不是由国会来决定。在最高法院之外而不是在国会之外进行的抗议活动是有些不寻常和不健康的,因为所有这些重大的政策立场或价值观冲突都应该由我们选出的代表来决定,而不应该推到行政机构,最终由法院来解决。”

Ilya Shapiro: “Well, just like it’s taken decades to get to where we are, it will take decades to get back. I think the Supreme Court, starting in the ‘30s, started approving uses of federal power that go beyond Constitutional authority without amending the Constitution. And that’s really the genesis of the growth of power here in Washington. But it’s not just that. It’s also Congress abdicating its authority or delegating its power to the executive branch. That way congressmen can say, I voted for this great law and I’ll just have the bureaucrats sort out the details. And if people don’t like the details, they can blame the agency. They shouldn’t blame me, I passed this great law. But it’s the bureaucrats, it’s the civil servants, it’s the agencies that are doing the bad things. And, of course, people can’t lobby the agencies or the bureaucrats.

They can only sue them. And that’s why all of these major disputes over clashes of policy views or values end up in the courts rather than being decided in the halls of Congress. There’s something unusual and unhealthy about protests going on outside the Supreme Court rather than outside of Congress because all of these major clashes of policy positions or values should be decided by our elected representatives, not pushed to the executive agencies and ultimate resolved in court.”

萧茗(Host/Simone Gao):同样的问题,我也问了民主党人。Thomas B. Reston一辈子都在政治领域工作,在全国层面为八次总统选举工作过,在地方和州里选举经历更多。他两次被选为弗吉尼亚州民主党秘书长。他在吉米·卡特总统任内被指派做外交工作,是外交事务的助理国务卿。他是民权的拥护者,写作过《一名民主党人的灵魂》一书,听听他怎么说。

I also asked the Democratic side the same questions. Thomas B. Reston has spent a lifetime in politics, working in eight presidential campaigns at the national level and in countless local and statewide efforts. He was twice elected Secretary of the Democratic Party of Virginia. Reston was a political appointee in the Foreign Service under President Jimmy Carter, serving as Deputy Assistant Secretary of State for Public Affairs. He is a civil rights advocate and author of 《Soul of a Democrat》. Here is my discussion with him.

萧茗(Host/Simone Gao):“你是否认为最高法院的角色已经超越了国父们的意图?”

“ Do you think the role of the Supreme Court has gone beyond what the framers had intended?”

Thomas B. Reston(《民主党的灵魂》作者):“我不这么认为。其实最高法院的角色或多或少的正在回归国父们想要的那样,或是,首席大法官John Marsahll想要的那样。他曾经是伟大的保守派,建立了最高法院司法审查制度,这个制度在国会之上,这样最高法院如果发现有些法律不符合宪法,尽管是国会已经通过了的,也可以废除。所以最高法院真的正在回归最早的功能,就是约束国会的功能。我认为最高法院一直在发挥美国政府中的保守派的角色。还有现在最高法院里保守派是多数,这已经是事实,我认为最高法院会回到它的本质角色上。”

Thomas Reston:“ No, I don’t think so. In fact, I think, as a practical matter, the role of the Supreme Court is returning more or less to what the framers wanted, or certainly Mr. Chief Justice John Marshall, who was the great conservative who established the principle of judicial review, over the actions of Congress so that the Supreme Court could knock out legislation that had been written and passed by the Congress if the Supreme Court found the legislation to be unconstitutional. So I think really the Supreme Court is returning to its earliest days as this staunch, as the staunch wall against an unbridled Congress. I think that it has always functioned as the great conservative part of the American government. And I think with the new conservative majority on the court, which has now been established, I think that court will return to its essential role.”

萧茗(Host/Simone Gao):“下一节还有更多Thomas Reston的采访。”

“ We will have more with Thomas Reston in our next segment. ”

川普有可能在他担任总统期间提名第三位最高法院法官,民主党人会如何反应?

Coming up, it is possible that president Trump could appoint another justice during his presidency. If that happens, how will Democrats react?

第三部分:失去了最高法院,民主党人有何反应?

Part 3: How Will Democrats React to the Loss of a Liberal Supreme Court?

继尼尔·戈索和布雷特·卡瓦诺之后,川普总统有可能在他担任总统期间提名第三位最高法院法官。

After Neil Gorsuch and Brett Kavanaugh, it is possible for President Donald Trump to nominate a third Supreme Court justice during his presidency.

85岁的大法官鲁思·巴德·金斯伯格目前正从肺癌手术中恢复。在她25年的职业生涯中,这是她第一次缺席1月7日的口头辩论。她通过阅读法律摘要和口头辩论的笔录,参与了对正在辩论的两个案件的裁决。

The 85-year-old Associate Justice Ruth Bader Ginsburg is currently recovering from lung cancer surgery. She was absent from oral argument on January 7th for the first time in her 25-year career on the court.  She participated in deciding the two cases being argued by reading legal briefs and transcripts of the oral arguments.

金斯伯格是法院自由派的领袖。她在法律生涯中花了相当大的一部分时间,倡导促进性别平等和妇女权利,并在最高法院的辩论中多次获胜。她曾在美国公民自由联盟(American Civil Liberties Union)担任志愿律师,并于20世纪70年代成为其董事会成员和总顾问之一。

Ginsburg is the leader of the court’s liberal faction. She spent a considerable part of her legal career as an advocate for the advancement of gender equality and women’s rights, winning multiple victories arguing before the Supreme Court. She advocated as a volunteer lawyer for the American Civil Liberties Union and was a member of its board of directors and one of its general counsels in the 1970s.

在奥巴马担任总统期间,一些带有个新观念的律师和积极分子呼吁金斯伯格退休,以便奥巴马能够任命一位志同道合的继任者,尤其是在民主党控制美国参议院的时候,金斯伯格拒绝了这些请求。

During Barack Obama’s presidency, some progressive lawyers and activists called for Ginsburg to retire so that Obama would be able to appoint a like-minded successor, particularly while the Democratic Party held control of the U.S. Senate. Ginsburg rejected these pleas.

萧茗(Host/Simone Gao):如果川普总统能够任命另一位保守的最高法院法官,这将如何影响国家政治?下面是我和托马斯·莱斯顿的讨论。

If President Trump will be able to appoint another conservative Supreme Court justice, how will that affect national politics? Here is the rest of my discussion with Thomas Reston.

萧茗(Host/Simone Gao):“自20世纪50年代以来,最高法院一直是自由党占多数。现在,随着戈萨特法官和卡瓦诺法官的确认当选,这种情况正在改变。如今,大法官金斯伯格可能接替成为新一任大法官,民主党将失去一个可靠的左倾最高法院。他们将如何反应?”

“Ever since the 1950s, the Supreme Court has had a liberal majority. Now with the confirmation of Justice Gorsuch and Justice Kavanaugh, that situation is changing. Now, with the possible replacement of Justice Ruth Bader Ginsburg, the Democratic Party will lose a reliable left-leaning Supreme Court. How will they react?”

Thomas B. Reston(《民主党的灵魂》作者):“我不认为最高法院现在是左翼的最高法院。但我认为你是对的,在1950年代、1960年代和1970年代的一段时间里,最高法院的多数成员非常同情美国社会的改革力量,并以一种非常有力的方式行使法院的权力,协助美国的改革力量。我认为,这个国家的自由党已经习惯于在他们的头脑中,认为法院是一个可靠的盟友,他们认为,即使人民不同意他们的意见,或国会中的人民代表不同意他们,只要人民代表能简单地去支持他们,就能实现他们的目标,他们认为,即使人民不同意他们的意见,或者国会中的人民代表不同意他们的意见,他们也可以做到这一点,在法庭上赢得法律诉讼。我认为现在最高法院变得更加保守,而且已经保守了一段时间,但现在它将变得非常保守,现在关于谁在最高法院拥有权力不会有太多的歧义。我认为,自由党人和民主党人有必要重新与美国人民建立联系,并利用人民的选举权力推进改革议程。”

Thomas Reston:“ I don’t regard the Supreme Court now as a left-wing Supreme Court. But I think that you are correct that for a period during the 1950s, 1960s, and 1970s, there was a majority on the Supreme Court which was very sympathetic to the forces of reform in American society and exercised the power of the court in a very robust way to assist the forces of reform in America. And I think that liberals in this country sort of got used to thinking in their own minds that the court was a reliable ally and that sometimes liberals might be able to get—that they thought they might be able to get their way even if the people didn’t agree with them or the representatives of the people in Congress didn’t agree with them if they could simply go to the courts and win legal cases in the court which would get them the same result. I think now that the Supreme Court is getting much more conservative, and I think the Supreme Court has been reliably conservative for some time, but now it will become extremely conservative, and there won’t be much ambiguity about who has the power on the court now. I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.”

萧茗(Host/Simone Gao):“所以,您认为这实际上是一个机会,让民主党寻找它的初心,并再次与美国人民联系起来?”

“ So you think this is actually an opportunity for the Democratic Party to search for its soul, if you will, and be connected with the American people again?”

Thomas B. Reston(《民主党的灵魂》作者):“我认为是这样的。这并不是说我反对利用法院来推动或利用法律来帮助这个社会中的人们。我曾几次担任墨西哥裔美国法律辩护基金(MALDEF)的董事会主席。他们在维护拉美裔的权利,总部设在洛杉矶。因此,我为民权领袖们在法庭上所做的工作感到自豪。但我确实认为,作为一个政治问题,民主党需要——这是民主党重新与美国人民建立密切联系的机会。这就是我在我的书中所说的重新拾回初心的一部分,就像民主党重新认识自己的初心一样。”

Thomas Reston:“ I do indeed. I do indeed. It’s not that I am opposed to using the courts for advancing or certainly using the law to help people in this society. I have been the chairman of the board of the Mexican American Legal Defense Fund, MALDEF, a couple of times. And they stand up for the rights of Latinos here in the United States. It’s headquartered in Los Angeles. So I am proud that the work that civil rights leaders do in our courts. But I do think, as a political matter, the Democratic Party needs–this is an opportunity for the Democratic Party to renew its very close ties deep into the American people. And that is part of what I mean in my book when I’m talking about regaining the soul, as the Democratic Party regaining its own soul.”

萧茗(Host/Simone Gao):“您认为民主党的建立会做到这一点吗?”

“ Do you think the establishment of the Democratic Party will do that?”

Thomas B. Reston(《民主党的灵魂》作者):“嗯,我认为他们需要这样做,因为民主党的支持率不再上升了。现实情况是,两党派在这个国家政治上是平分秋色的。在上次选举中,虽然民主党取得了重大胜利,但并不是那种‘上帝之手’式的选举才把保守党彻底击败。我认为这次选举表明美国人民仍然有很深的分歧。民主党需要做的,不是仅仅试图动员更多的支持者,而是寻找方法,超越现有的基础。事实上,进入共和党,进入美国人民的大群体,因为这些人现在投票给共和党,他们曾经是可靠的民主党选民。毕竟,这个国家的白人工人阶级,是罗斯福新政联盟的核心。”

Thomas Reston: “Well, I think they’re going to need to because the numbers don’t add up for the Democrats anymore. The reality is that the country is sort of evenly divided politically. And the last election, while the Democrats registered major gains, it was not the sort of ‘hand of God’type of election that just swept the conservatives out all across the board. I think the election revealed that the American people are still deeply divided. And what the Democratic Party needs to do, instead of just trying to mobilize more of its current supporters, it needs to look for ways to move beyond its current base and back into the middle and back, in fact, into the Republican—into large groups of the American people who are now voting Republican who at one time were reliable Democratic voters. The white working class in this country, after all, is the heart of Franklin Roosevelt’s New Deal coalition.“

萧茗(Host/Simone Gao):美国最高法院的发展已经超过了国父们提出的计划,但和其它部门一样,建造这座建筑的不是蓝图,而是人民。最高法院这座雄伟大厦提醒着人们法院的权力,但仍然是大厦背后的人——大法官、当事人、律师以及美国人民决定了法院的未来。感谢您收看这一集关于最高法院的节目。如果您喜欢我们的节目,请推广给更多的人。您也可以加入我们Facebook页面上的群聊,并订阅我们的YouTube频道《Zooming In with Simone Gao》。我们下次再见。

The Supreme Court has outgrown the plan set forth by the Founding Fathers, but like every other institution, it is not the blueprint that does the building; it is the people. The imposing edifice of the Supreme Court is a magnificent reminder of the court’s power, but it is still the people behind the edifice–the justices, the clients, and the attorneys, as well as the American people–who decide the court’s future. Thank you for joining us for this episode on the Supreme Court. If you liked it, please share. You can also join the conversation on our Facebook page and subscribe to our YouTube channel 《Zooming In with Simone Gao》. Goodbye until next time.

End

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Producer:Simone Gao

Writer:Joel Slaughter, Simone Gao

Editors:Julian Kuo, Bonnie Yu, Frank Lin, Bin Tang,  York Du

Narrator: Rich Crankshaw

Translation:Greg Yang,  Bin Tang, Juan Li

Transcription: Jess Beatty

Cameraman: York Du

Special Effects:Harrison Sun

Assistant producer: Bin Tang,  Merry Jiang

Feedback:ssgx@ntdtv.com

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Zooming In

January, 2019

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