Category ►►► Constitutional Maunderings

November 11, 2009

Zombie Revolution

I generally take holy days -- sorry, holidays -- as an opportunity for posts of a more philosophical nature, and today is no exception.

Walter Williams, one of my favorite authors (though I haven't read his recent books), has a column in which he notes the contempt that Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 100%) holds for the United States Constitution, insofar as it might limit her power to rule over the rest of us:

At Speaker Nancy Pelosi's Oct. 29th press conference, a CNS News reporter asked, "Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Speaker Pelosi responded, "Are you serious? Are you serious?" The reporter said, "Yes, yes, I am." Not responding further, Pelosi shook her head and took a question from another reporter. Later on, Pelosi's press spokesman Nadeam Elshami told CNSNews.com about its question regarding constitutional authority mandating that individual Americans buy health insurance. "You can put this on the record. That is not a serious question. That is not a serious question."

He notes that it's not just Democrats but Republicans and Independents in Congress who by and large dismiss constitutional limitations on their power as unserious questions. I made a similar point in a recent e-mail I sent to our e-steamed co-conspirator, Brad Linaweaver; in response to a question he asked -- how in the world a military base like Fort Hood became a "gun-free zone," in which American soldiers were as helpless as high-school children against a lone man with a pair of gats -- I responded with a description but not an explanation:

There is something terribly wrong when a country of free men and women doesn't even trust its own soldiers to carry firearms. As I said in that 37-part phone message I left you, we're going through a period of retrenchment of government a la 1912 or 1932; it began sometime in the term of George H.W. Bush, continued through Clinton and Bush-43, and is now hitting it's apex -- I hope! -- in Barack H. Obama and Obamunism.

But as you can see, I begged Brad's question: Why do we periodically go through such "periods of retrenchment of government?" Why is it, as Williams says in his column, that "mankind's standard fare throughout his history, and in most places today, is arbitrary control and abuse by government?"

I hearken back to my second novel, Warriorwards (Baen Books, 1990), when I first began groping for an explanation. What I came to realize is this: Being a slave is tremendously attractive to most people in the world at most times of history.

The primary advantage of being a slave is complete absolution from any responsibility for one's own life; the slavemaster makes all decisions -- and he alone can be held accountable for one's life, health, and well-being. As absurd as it sounds stated so baldly, most people would rather die than take responsibility for living.

Think how many opportunities "we" -- the universal we; I don't mean every reader of this blogpost or its author) -- how many opportunities "we" seize to divest ourselves of responsibility for thinking for ourselves:

• Some give their lives to God, allowing the Bible, the Koran, a guru, the tarot, or a funny-colored crystal to think for them.
• Some rigidly follow an injudiciously chosen creed, doctrine, or ideology wherever it leads.
• A great many learn what they believe from their parents -- either slavish devotion to their familial beliefs, or childish rebellion against.
• Others succumb to peer pressure, doing and believing whatever their friends do and believe.
• Many blindly obey the law without ever thinking, "What if the law is wrong?" They are the "good Germans."
• Millions emulate celebrities.
• Tens of millions accept the worldview given us by CBS, Fox News, TV Land, or Lifetime.
• An unknown but very large number mold their lives to resemble the fictional escapades of movie heroes, sitcom stars, rap lyrics, or videogame characters.
• And many abdicate even the pitiful responsibilty of playing Follow the Leader by living drunken, drugged, dissolute lives -- "out on a leave of absence from any resemblance to reality," as John Hiatt put it in "the Tiki Bar Is Open."

These "lifestyle choices" all have one thing in common: They remove responsibility for making decisions. Adherents needn't ask what to do; somebody else will tell them. The only duty imposed upon the great majority of hypnotized souls is to sit quietly in the dark and wait for instructions.

This is as true in free nations as much as in obvious totalitarian tyrannies; the only difference is whether the State allows the handful of dissenters, who always exist, to practice their abominations openly; or whether they must practice their self-abuse -- thinking for themselves -- as a solitary vice.

Of course, a nation doesn't need a majority of its citizens accepting responsibility for their own lives in order to create a government tolerant of liberty... else no nation would ever be free. A vocal and powerful minority is generally all that is required.

But even that much is hard to maintain! In how many countries of the world is a powerful minority voice raised against tribalism, theocracy, plutocracy, socialism, racism (for real, I mean, rejecting all racial preference), and every other "ism" which human beings use to dodge the horror of thinking for ourselves? I'll bet you couldn't find more than five such countries today -- and some would argue that the true number is zero. I'm not sure I can refute them.

I personally hated childhood: I hated being told what to do -- not just because I sometimes didn't get to do stupid things, but even when the prohibition was rational; I just didn't like other people doing my thinking for me. But this may well have been influenced by my less-than-secure childhood.

I don't know how I would have turned out had my father been a benevolent despot, a man I could respect. I might have ended up as servile as Nancy Pelosi's constituents.

The reality for me was that the Grand Bargain, in which we trade liberty for security, was no bargain; it was so obviously not a bargain in my childhood that I never developed the knee-jerk acceptance of Authority that is the natural state of Man.

I have never looked into the question, but I wonder what percent of those who actually fight for liberty against their own leaders grew up in similarly unpleasant circumstances. I have great respect for those who fight for their country on behalf of their leaders; but it takes a powerful ideology of liberty -- not to mention huevos gigantescos -- to do as our forebears did in the Revolutionary War: Take up arms against one's own country when it has become a thing of loathsome tyranny.

Look, I have nothing against Tea-Partiers; they're nice, and they might even help Republicans against Democrats (and help fiscal conservatives against socialist Republicans). But let's face facts: The main reason so many people attend Tea Parties is to socialize, the same reason most Marxists, churchgoers, and Freemasons attend their own gatherings. Folks like to hang out with the like-minded, chatter and gossip, sing group-affirming songs, and in general have a holiday (and I don't mean holy day this time) with their friends.

George Washington, John Adams, Thomas Jefferson, and Benjamin Franklin did not fight for the first (and only) revolution for liberty in order to picnic and hook up with girls.

So the real answer to Brad's question is a sad answer: Left unchecked, government grows and metastasizes like a cancer because that's what "we the people" want it to do. (Not every individual, but a sizable majority of them.) For most folks, slavery is a very attractive prospect; the real outrage comes only when they trade away their liberty for the promise of security -- and the promise is broken.

I think that is why support for President Barack H. Obama has collapsed so thoroughly. Rhetoric aside, had he actually delivered on his promise to infantalize Americans and then suckle and comfort them like babies, I don't think he would be in as much political hot water. It was only when it became clear that he had no intention of protecting us from the vicissitudes of life that opposition swelled in a tidal wave of anger and political action.

As Benjamin Franklin famously wrote (in his Historical Review of Pennsylvania, 1759), "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." I believe this to be true, but it's an ineffective way of educating the great majority of people. It's a moral argument, and folks tend to tune those out (they hear so many, each contradicting the other). If they were the type to analyze moral arguments and logically pick one, they wouldn't need this advice in the first place!

I've come to believe that for most, morality flows from habit; and habit is driven by necessity. You get more traction arguing from necessity, practicality, the argument from empiricism, than telling people what they should do or what they deserve to get.

The best argument for liberty, then, is not to try to persuade people that liberty is better, finer, more advanced, or more godly than slavery -- but to convince them that slavery doesn't work. So long as people think they really can trade a great deal of essential liberty for a little temporary safety, most will seize the opportunity and thank the tyrant heartily.

The task for those of us who reject the Grand Bargain even in principle is to make all the zombies realize that such a deal always, always, always falls apart in practice. The ghouls who offer it never intend to fulfill their side of the bargain; their only goal is to lull us into a false sense of security, so they can loot us of everything we think we own.

If you see an ad offering a cherry 2008 Porsche 911 Carrera for $5,000, don't bother answering it; you know going in it's a fraud, because nobody would offer so much car for so little money.

Just so, when the One says to give him complete control over your health care, and he guarantees you'll get all the medical treatment you want for less than you're paying now -- or he says that we'll have more and cheaper energy if we pass his cripple and tax bill -- or he says workers will have more freedom to choose the union they want (or no union at all) if we take away the secret ballot... well, he's offering you a Carrera for five grand.

Once a person accepts the argument from empiricism, he will be forced to begin thinking for himself, because he can't trust others to have his own interests at heart. He rightly recognizes that each throne or power has its own interests at heart. Such thinking will grow into a habit; then and only then will habit give rise to a moral imperative.

Thank reason that the president's governing policy of Obamunism is so ham-fisted and clumsy that even the lowliest zombie is starting to wake from his thanatotic sleep. Let's hope he doesn't roll over and hit the snooze button once more.

Cross-posted to Hot Air's rogues' gallery...

Hatched by Dafydd on this day, November 11, 2009, at the time of 5:36 PM | Comments (3) | TrackBack

September 4, 2009

Judicial Home Invasion

This story utterly nonplusses me; not that a judge would want to make a bigotted, anti-Christian decision -- I expect that -- but that she would have the reasonable belief that she'd be allowed to do so by the appellate courts in New Hampshire, or any other state. (Full disclosure: I am not now, nor have I ever been a Christian, a religious or observant Jew, or even a believer in God; nor am I a disbeliever.)

If this story in the Washington Times is at all accurate, a judge has just ruled that a little girl must be removed from homeschooling and sent to a government school -- because the judge hoped that would cause her to lose her religious faith:

A New Hampshire court ordered a home-schooled Christian girl to attend a public school this week after a judge criticized the "rigidity" of her mother's religious views and said the 10-year-old needed to consider other worldviews as she matures....

On Tuesday, the girl, Amanda Kurowski, started fifth grade at an elementary school in Meredith, N.H., under court order. Amanda's "vigorous defense of her religious beliefs ... suggests strongly that she has not had the opportunity to seriously consider any other point of view," District Court Judge Lucinda V. Sadler said.

Perhaps the Times got some elements wrong; but unless reporter Julia Duin fabricated the tale out of thin cloth, which is possible but very improbable, there's no way to spin this decision as other than appalling. None of the normal confounding factors appear to apply here; Judge Sadler herself ruled that the child was well-adjusted, academically ahead of her grade level, and not isolated from other children:

The course load, except for the Bible study, is similar to what public students get and the mother's home schooling has "more than kept up with the academic requirements of the [local] school system," the judge's statement said. The child also takes supplemental public school classes in art, Spanish, theater and physical education and is involved in extracurricular sports such as gymnastics, horseback riding, softball and basketball.

I must assume that each of these extracurriculars involves interacting with other children and with adults who may not share Amanda's and her mother's religion and religiosity, giving Amanda plenty of opportunity to seriously consider other religious points of view. But even if she did not have such activities, what business is it of a judge to judge that element of their religion? Would Judge Sadler order a Moslem girl not to wear a veil, or a Hassidic boy not to wear the distinctive clothing, hat, and hairstyle of that sect of Judaism? Yet such religious uniforms not only have the effect of isolating believers from infidels or goyim, that is the whole idea.

If I understand this ruling, Judge Lucinda Sadler would have been perfectly happy with Amanda's homeschooling if the religious instruction hadn't "taken," if Amanda rejected her mother's Christianity and become a Moslem, Jew, or atheist. For that would prove that Amanda had "considered [another] point of view," you see.

The First Amendment to the United States Constitution begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This fundamental right has absolutely, "no bout adout it," been incorporated to the states, meaning that state law cannot violate it anymore than can Congress.

Is this not a textbook example of a state judge prohibiting the free exercise not only of Mom's religion, but of Amanda's as well? Even ten year old children have that right, so long as the belief does not physically endanger them (rejecting urgent medical treatment, for example). Nothing of the sort is involved in this case. One would imagine that a judge in a state whose very motto is "Live free or die" would think a second time before ordering a child into the government schools precisely in order to diminish her religious faith.

And by the way, isn't it an eye-blowing admission against liberal interest that one of the functions of the government school system, deliberate or incidental, is to damage the religious faith of its students? Were I an advocate of compulsory government educational propaganda (which you may infer from my phraseology I am not), I would be aghast that some dork of judge came right out and let the beans out of the bag.

Lest anyone mistake Judge Sadler's motivation, she made it even more explicit, if that's possible:

"[Mr. Kurowski] believes that exposure to other points of view will decrease Amanda's rigid adherence to her mother's religious beliefs and increase her ability to get along with others and to function in a world which requires some element of independent thinking and tolerance for different points of view," Judge Sadler's ruling said.

The ruling quoted Mrs. [Janice] McLaughlin [court appointed "guardian of the child's legal interests"] as saying the child "appeared to reflect the mother's rigidity on questions of faith." The child would "be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior," it added.

How thoughtful of the court (a previous court) to pick a guardian of Amanda's "interests" who is clearly in complete disagreement with her over those interests. Perhaps if I were in a coma, and some wacko relative was suing to pull the plug so he could collect the insurance, the court would appoint the president of the Hemlock Society to speak for me.

I cannot imagine a state appellate court allowing this ruling to stand; in fact, I suspect it will end up in the United States Court of Appeals for the First Circuit for a ruling on the First Amendment question. And I wonder... is it possible this case will come up in the First Circus shortly before the 2010 elections?

If so, Democrats across the country will be forced to take a stand on federal control of religion -- to supplement federal control of banking, the auto industry, energy, and health care. (Republicans too; but it will be a lot harder for Democrats to avoid infuriating either the liberal nutroots or real Americans.) The Squeaker, the Majority Leader, the chairmen of the two Judiciary Committees, and even the Big B.O., Barack H. Obama himself, will have to opine for the record.

To maintain party discipline and solidarity against homeschooling (which liberals despise, as it interferes with "proper socialization" of children), Democrats will have to tell American parents that their children's religion will henceforth be controlled by the federal government -- and convince them that this is for their own good.

What could possibly go wrong?

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, September 4, 2009, at the time of 9:38 AM | Comments (1) | TrackBack

June 3, 2009

Serfing Towards Liberty?

The title refers, of course, to the immortal work by free-market economist Friedrich Hayek, the Road to Serfdom; but in this case, I'm not referring to the obvious economic servitude into which we seem to be slipping -- or slaloming.

I am instead talking about an even more fundamental shibboleth that determines whether a people are free citizens or merely subjects of the crown: whether their fundamental right to the means of self defense is protected or violated. In other words, whether they are or are not allowed to own a firearm.

Today a three-judge panel of the Seventh Circuit Court of Appeals decided to uphold Chicago's ban on handguns within the city limits. I believe the case was properly decided -- despite the fact that I believe Americans have a fundamental right to own (and even carry -- "keep and bear") arms, even within the great city of Chicago, a.k.a. Obamastan:

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois. [Easterbrook was appointed in 1985 by Ronald Reagan.]

Why was it properly decided? Because for more than a century, the Supreme Court has consistently ducked its opportunity to state unequivocally whether the protections of the Second Amendment to the United States Constitution apply only against action by the federal government, or whether it also protects our right to keep and bear arms from depredations by the states -- or their subdivisions, including the windy hog butcher to the world.

Even in the recent case of District of Columbia v. Heller, 554 U.S. ___ (2008), in which the Court for the first time held that the Second Amendment protected an individual's right to own a firearm, this larger issue was not settled. Justice Antonin Scalia wrote for the razor-thin majority:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals.

However, as the title of the case suggests, this ban was enacted by a federal entity: the District of Columbia; therefore, the holding does not necessarily apply to a state or municipality. But that is exactly what the current case will decide.

I cannot imagine the Supreme Court refusing to take it, especially as a Ninth Circuit case, Nordyke v. King, ___ F.3d ___ (9th Cir. 2009), ruled the opposite way (that the Second Amendment does apply to state legislation). According to Wikipedia -- not the best of sources, considering its provenance, but it will have to do -- the Ninth Circus held:

The Circuit Court ruled that the Second Amendment was incorporated through the Fourteenth Amendment's Due Process Clause and applies against the states and local governments. In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition", a key factor under Duncan v. Louisiana for incorporation.

Therefore, we desperately need clarity: We need to know that our right to keep and bear arms is fundamental, and that it applies not only against federal bans but state bans as well. I believe the language of the amendment itself favors the side of liberty. Compare the language of the First Amendment to that of the Second:

If the Court can "incorporate" the First Amendment to the states, despite the fact that it explicitly mentions acts of Congress, then surely the Second Amendment (which mentions no such possible limitation) must logically be incorporated as well.

But only the United States Supreme Court can do so. If the same majority from Heller holds up under National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago) -- and I believe it will -- then we will finally have what the Founding Fathers intended: "that every man be armed."

That may well turn out to be the greatest and most long-lasting achievement of the presidency of George W. Bush: Appointing John Roberts and Samuel Alito to the Court. Both joined the Scalia opinion, as did Clarence Thomas and Anthony Kennedy. While Roberts replaced Chief Justice William Rhenquist, who probably would have voted the same way in Heller, Alito replaced Justice Sandra Day O'Connor -- who I suspect would have either sided with the liberals, or at least would have demanded a toned down, wishy-washy decision. Alito cast a courageous vote for liberty instead.

So keep watching the skies; the first step is to see whether at least four justices will vote to accept certiorari.

Hatched by Dafydd on this day, June 3, 2009, at the time of 6:14 PM | Comments (3) | TrackBack

May 26, 2009

Supremes Do the Right Thing

The California Supreme Court has handed down its decision on Proposition 8, the citizen initiative constitutional amendment that overturned a previous California Supreme Court decision, In re Marriage Cases (2008) 43 Cal.4th 757; Marriage Cases had held that the state's restriction of marriage to a union between one man and one woman -- as embodied by an earlier initiative enacted in 2000 (Proposition 22), by a previous 1977 law, and by law as commonly understood from the state's incorporation as a state in the United States in 1850 -- was nevertheless unconstitutional under the equal protection clause.

The court did not reverse that decision today; none of the justices voted that the ruling in Marriage Cases was wrong. But the court did find that Proposition 8 was likewise a valid state constitutional amendment, not a "revision" of the constitution, which would have required legislative approval before being placed upon the ballot. The vote was a healthy 6 to 1.

The net effect is that California is now firmly back in the traditional marriage camp -- except for the roughly 18,000 marriages that occurred in the brief window after the ruling in Marriage Cases took effect but before Proposition 8 was passed.

Chief Justice Ronald George wrote the opinion, which was joined by Justices Joyce Kennard, Marvin Baxter, Ming Chin, and Carol Corrigan. Justice Kathryn Werdegar wrote her own opinion concurring in the judgment that Proposition 8 was a valid amendment, but "dissenting" (so to speak) from the reasoning: She held that the majority was wrong to restrict the definition of constitutional revision to a change that fundamentally altered the way the state governed, as opposed to impinging only upon an individual right.

Werdegar held that an impingement upon an individual right, were it substantial enough, could still constitute a "revision" that requires legislative approval before it can be placed before voters. But she held as a substantive matter that Proposition 8 did not impinge in such a manner upon the fundamental right of equal protection under the law, hence was a valid amendment that required only a petition circulated among voters to qualify for the ballot.

(Interestingly, Werdegar was among the majority in Marriage Cases that held that same-sex marriage was required by the fundamental right of equal protection. I strongly disagree with her on that point; but I'm closer to agreement with her on the procedural question of what can constitute a constitutional "revision" than I am with the rest of the majority.)

The only complete dissent came from Justice Carlos Moreno (who was also, like Werdegar, in the pro-same-sex marriage majority on Marriage Cases). By a most curious coincidence, Moreno also happens to be the only justice on the court appointed by a Democrat, Gray Davis. The other six were all appointed by Republicans: George, Werdegar, and Chin by Pete Wilson; Kennard and Baxter by George Deukmeijian; and Corrigan by Arnold Schwarzenegger.

Ergo, the six justices appointed by Republican governors had great deference for the right of the people of the state of California to enact and amend their own constitution, while the sole justice appointed by a Democrat thought that his interpretation of newly minted "fundamental" rights (which no justice before that day had dreamt existed) trumped the right of the people to determine their own style of government.

Please bear that distinction in mind the next time you are confronted with a vote for chief executive in your state or for President of the United States: Not only do words have meanings and actions have consequences, but so too do political parties.

Now let the leftist circus begin!

Hatched by Dafydd on this day, May 26, 2009, at the time of 11:32 AM | Comments (0) | TrackBack

Hatch As Hatch Can: Venom of the Gay Left

In just four more hours, give or take, the California Supreme Court will release its decision and opinion on three consolodated cases demanding the invalidation of Proposition 8, the citizens initiative that overturned a decision by that same court mandating same-sex marriage in California on bogus "equal protection" grounds. The citizens initiative is one of the greatest tools of real grass-roots democracy, not liberal "astroturf," in America's most populous and richest state. (Which is headed towards bankruptcy and possible receivership; so it goes.)

In just four hours, we shall learn whether we still live in democracy with a government of the people, by the people, and for the people -- or whether we live in a tyranny with a regime of the activists, by the activists, and for the activists. I'm betting that even this court will shy from throwing a sacred Californian right of more than a century and a half standing into the dustbin of history, simply to satisfy a whim of policy preference, in a case that was originally decided by the slim and unconvincing majority of 4 to 3.

The gay Left says that if they do not get the "invalidation" ruling they want -- if the citizens of California are allowed to retain their self-evident right to write their own constitution -- then the radicals will go ape; there will be days of rage:

Gay rights advocates have scheduled marches throughout California and in several other states for Tuesday evening. Organizers say the gatherings will be celebratory if the court rules in their favor and angry if Proposition 8 is upheld.

Activists in the San Francisco Bay area, including several clergy members, said they planned to block the street outside the courthouse and to be arrested in a mass show of civil disobedience if the justices do not invalidate the measure.

"Words are not enough right now. We believe it's time to put our bodies on the line to show that separate is not equal," said Kip Williams, an activist with One Struggle, One Fight, a group that was launched in response to Proposition 8's passage.

I say, let them. Bring it on! Let the world see just how committed the American hard Left is to "outmoded" concepts such as democracy, liberty, and honesty. Let America see the liberal fascists for what they are: unAmerican, even anti-American. Apt pupils of Oogo Chavez and other Stalinists.

As the Emperor Claudius says in Claudius the God, the second half of I, Claudius, by Robert Graves, "Let all the poisons that lurk in the mud hatch out."

In sum, if the court has the audacity (chutzpah is the better word) to flush 159 years of the right of citizens initiative, over a stunningly recent, transitory, and bitterly partisan dispute, it will be the greatest outrage in the history of California jurisprudence... even for those who voted against Proposition 8: You cannot target your invalidations to those initiatives with whose policy you disagree -- without simultaneously invalidating it for all initiatives. I don't think even Los Angeles Mayor and likely next Democratic gubernatorial nominee, Antonio Villaraigosa, would go that far (though certainly San Francisco Mayor Gavin Newsom -- his most likely rival for the nomination -- would).

But if, as nearly everyone predicts, even most of the justices who voted to declare unconstitutional the state's perennial definition of marriage to apply only to male-female unions, nevertheless vote to uphold Proposition 8... then let us see the violent, adolescent Left rage and blow, smashing other people's property, assaulting their opponents, the police, and randomly selected bystanders. Let them show their Jerry Brown-shirts in public.

The medicine will be bitter, but its effect curative for our state's internal organs.

Hatched by Dafydd on this day, May 26, 2009, at the time of 5:57 AM | Comments (2) | TrackBack

November 10, 2008

Unterschtandink Ahnold

What on earth was California Gov. Arnold Schwarzenegger thinking? (Don't worry, I'll tell you.)

Understanding Arnold is not easy in the best of circumstances -- and I'm not even talking about that thick Teutonic accent that he practices into a tape recorder every night. He almost epitomizes the cult of macho, and he's very pro-business; but on the other hand, he's a typical handwringing Hollywood liberal on every soft-hearted, soft-headed social issue you can imagine.

On the specific issue we're on about today, same-sex marriage (SSM), he's been all over the map: He first said he was opposed to SSM but supported domestic partnerships; in fact, in 2005 he famously vetoed SSM legislation passed by the California legislature on the grounds that the people of the state had spoken in Proposition 22 five years earlier, and the will of the people was paramount:

Gov. Arnold Schwarzenegger today delivered on his promise to veto legislation that would have given same-sex partners the right to marry, but said he would not support any rollback of the state's current domestic partner benefits.

But today, after the people spoke yet again -- this time with a state constitutional amendment, Proposition 8 -- Schwarzenegger suddenly decided that the will of the people is not paramount -- not when it conflicts with the vision of the judicially anointed. He called upon the California Supreme Court to declare the constitutional amendment unconstitutional... which I think might be a first:

Reporting from Sacramento and Lake Forest -- Gov. Arnold Schwarzenegger on Sunday expressed hope that the California Supreme Court would overturn Proposition 8, the ballot initiative that outlawed same-sex marriage. He also predicted that the 18,000 gay and lesbian couples who have already wed would not see their marriages nullified by the initiative.

"It's unfortunate, obviously, but it's not the end," Schwarzenegger said in an interview Sunday on CNN. "I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area."

The theory, evidently, is that an amendment to the constitution is unconstitutional if it conflicts with any previously adopted section of the constitution... including whatever section it amends! If you follow this reasoning, it means that no constitution can ever be amended, except to add new rights that never previously existed. (For example, the Twenty-First Amendment is "unconstitutional" because it repeals the Eighteenth Amendment allowing the prohibition of alcohol.)

Schwarzenegger is very politically savvy; given that Proposition 8 passed handily, primarily due to the votes of Hispanics and blacks, isn't it a rather peculiar flip-flop for Schwarzenegger to undertake? What in the world is going on here?

All right, I said I would tell you what he's doing; here we go. There are a few California facts you must bear in mind:

1. California has term limits for governor, and Arnold Schwarzenegger must leave office following the 2010 election. He still has aspirations for national elective office, however.
2. At the same time, longtime Sen. Dianne Feinstein (D-CA, 90%) has been dropping hints all over the place that she plans to run for governor in 2010, when she wouldn't have to face the Schwarzenegger juggernaut. (Her term doesn't expire until 2012, but as governor, she could appoint her successor -- as Gov. Pete Wilson did following the 1990 gubernatorial election.)
3. Here's where it gets interesting... if Feinstein is vacating her seat to run for governor, and Schwarzenegger is vacating his seat because of term limits, then it makes perfect sense for each of them to grab for the other's seat. It's the best chance for both of them to strike for an open seat, rather than trying to knock off a longstanding and popular incumbent.
4. But there's a problem: The Republican brand is at a pretty low ebb in California right now. And in any event, Feinstein is certainly not going to appoint a Republican to replace her.

So my prediction is this: Arnold Schwarzenegger plans to switch parties and then run for Dianne Feinstein's Senate seat in 2012; he might even lobby her to appoint him in her place, if he agrees to caucus with the Democrats for the first two years. Then he would endorse her and campaign for her as governor.

Even if she won't appoint him, he will still have a very good shot at winning in 2012, since whoever replaces her will not have the name-recognition and built-in base that Feinstein enjoys.

Now, it would be ludicrous for Schwarzenegger to switch from Republican to Democrat immediately after campaigning for the GOP nominee for president; so my prediction is actually that he will switch parties to independent after he leaves office, then run for the Senate two years later -- either as the incumbent, if Feinstein appoints him, or as the challenger of an unelected appointee.

Eventually however, probably after the 2012 election, I believe Schwarzenegger will caucus with the Republicans; he will become our Joe Lieberman.

The change in his stance on SSM, then, can be seen as an "olive branch" to the left-leaning independents and moderate Democrats in this state. He assumes he'll retain most of his Republican base anyway; after all, they know he's been a liberal Republican (on social issues) for a long time -- no surprise there.

So I predict that Arnold Schwarzenegger will switch to independent and run for Dianne Feinstein's Senate seat. Just remember, you read it here first!

Hatched by Dafydd on this day, November 10, 2008, at the time of 4:09 PM | Comments (4) | TrackBack

September 12, 2008

Raking Whoopi

Today, John S. McCain was a guest on the View, where he has in the past been treated more kindly -- when he was nought but a maverick Republican tweaking President George W. Bush's nose. Now that he is the Republican nominee for president (and leading in nearly all the polls), it's a whole different kettle of horses.

Among the challenging and deranged questions he was asked, the best of the worst came from noted political scholar and seasoned electioneer Whoopi Goldberg, now ensconced in the Rosie O'Donnell memorial deep-analysis chair. During a discussion of the types of federal judges McCain would name, bouncing off of the overly obvious Roe v. Wade "crisis," the following hijinks ensued:

Alas, McCain did not really respond to Whoopi Goldberg's "question;" he seemed a bit stunned by the audacity of her stupidity, and he just placated her, telling her it was a good point and he understood. He all but patted her head, the way one would a child who was particularly thick.

So we lizards must take up the smart man's burden and explain, in words of few syllables, what is so terribly wrong with Ms. Goldberg's argument... for argument it was; it certainly was not an actual question to which she wanted an answer.

Goldberg, like most liberal Democrats, is confused about judges, John McCain, and the Founding Fathers; she imagines that a judge who is a "strict constitutionalist" -- an expression I confess having never heard before -- wants the Constitution returned to its pristine condition as written in 1787, before even the Bill of Rights was added.

I supposed it's barely possible that there may be a lawyer or law professor somewhere in America who wants such a thing; it's a big country. But certainly such a static thinker would not have been found among the Founding Fathers themselves. We must recall the Founders were rather revolutionary thinkers.

The Founders of our republic never intended the Constitution to remain changeless; that is why they included an elaborate amendment process to change it, which has successfully been invoked 27 times in the last 217 years -- an average of once every eight years (or once every 12 years, if you count the Bill of Rights as a single agony in ten fits).

One of those changes was the Thirteenth Amendment, ratified 143 years ago, which reads in toto:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

As this more-or-less duly enacted amendment* would allay Ms. Goldberg's fears about "being a slave" once more (perhaps she believes she was a slave in a previous life), the only logical explanation is that she thinks the judges that "President" McCain would appoint reject that amendment as marring the original beauty of the Constitution. In fact, I suspect that all hysterical Democrats think that's what "strict constitutionalist" judges believe. It's one of the sure signs of hysterical dementia.

In the real world, however, judicial conservatives and strict constructionists -- terms I am more familiar with than Whoopi Goldberg's term -- have no desire to roll the Constitution back to what it was the day it was ratified in 1789. They don't reject subsequent amendments; but they do insist upon ruling on the basis of what is actually in the Constitution today: the original text, all constitutional amendments that have been ratified, plus the actual words of relevant statutary law. Where none of the above decides the case, then judicial conservatives turn to previous interpretations and understandings of the law from court precedent; this is to resolve ambiguities, contradictions, and countervailing rights or interests.

A judicial conservative asks only that changes in the Constitution come about by the amendment process the Founders carefully enunciated in the document itself.

By stark contrast, the sort of judge supported by Democrats like -- well, like Whoopi Goldberg -- do not rule on what's actually in the Constitution; instead, they rule on the basis of their own personal gut feelings, which they would insert into the Constitution if only they could. Since they can't, however, they pretend it's there anyway and rule according to their whim du jour. That, as I understand it, is the difference between a strict constructionist/judicial conservative and a judicial legislator.

But you know I'm not a lawyer; I'm just playing sea-lawyer here. So if some lawyer who actually knows what he's talking about (unlike me) wants to correct my quickie definition, please feel free. Beldar, Patterico, and XRLQ, this means you!

I wonder if Whoopi Goldberg reads Big Lizards? Nah; can't picture it.

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* Yes, I know that some or all rebellious Southern states had not been readmitted to the Union and Congress when the 13th Amendment was ratified; tough. They may have gotten the short end of the totem pole, but they buttered their own petard, and now they can smoke it.

Hatched by Dafydd on this day, September 12, 2008, at the time of 9:21 PM | Comments (9) | TrackBack

July 3, 2008

Supreme Sunshine Scenario

Maybe I'm slow (shut up, you in the back), but this just occurred to me...

If John S. McCain wins in November, then he will get to appoint at least one, possibly as many as three Supreme Court justices; the odds are that John Paul Stevens (who will be 89 years old when the next president is sworn at) will have to retire, as well as Ruth Bader Ginsburg (she will turn 76 a couple of months into the new term). Antonin Scalia will turn 73 about the same time Ginsburg has her birthday; and even Anthony Kennedy is in his seventies.

If McCain names someone like John Roberts or Samuel Alito to replace Stevens or Ginsburg, the nominee would be hard to filibuster in the Senate. It's one thing (and already upsetting to millions of American voters) to prevent an appellate-court nominee from getting an up-or-down vote.

But to prevent a vote on a Supreme Court nominee and leave the Court in a state where every controversial case ends in a 4-4 split, would be so brazenly politicizing that it would anger even centrist Democrats. Republicans would romp in the 2010 elections.

Yet absent a filibuster, a new Roberts or Alito has a very good chance of winning -- if not when named, then after the next congressional election. Again, ordinary American voters have a distaste for senators who openly oppose a Supreme Court nominee for obviously political reasons.

So what happens if we can get another Roberts on the bench? One intriguing idea is this: The very next time the Court hears a case that hinges on granting habeas corpus rights to enemy combatants captured and held abroad, it's entirely possible that the new Court will simply reverse the previous Court's Boumediene.

Why not? Which of the four dissenting justices -- Scalia, Clarence Thomas, Roberts, or Alito -- is going to flip over to counteract the new justice's vote to overturn? Kennedy will no longer be the "swing vote," because there will be a solid, 5-justice majority of judicial conservatives.

Certainly liberals are not going to get very far screaming about stare decisis -- the general bias courts should have against radically changing the law by court decision -- because the obvious rejoinder is that that is exactly what the Court did in Boumediene in the first place: It created a brand, new "right" out of thin air. In addition, it will only have been law for a couple of controversial, strife-filled years, hence not yet embroidered into the fabric of American society; and it will already have proven to be unworkable in the real world.

I think it would be an easy call. Justice Kennedy can write the dissenting opinion, if he wants.

So this may not be the catastrophe we all fear... if John McCain beats Barack H. Obama. Contrariwise, if we send B.O. to the White House, the Court will become even more noisome.

Think a second time, conservatives.

Hatched by Dafydd on this day, July 3, 2008, at the time of 8:17 PM | Comments (11) | TrackBack

July 1, 2008

The New "Fairness" Doctrine

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

• Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
• Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
• Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

2. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM | Comments (10) | TrackBack

June 26, 2008

The 2nd Amendment DOES NOT "Confer an Individual Right to Keep and Bear Arms"

But on the other hand, I must rise to dispute not only Erwin Chemerinsky (on the Hugh Hewitt Dean Barnett radio show today) and Barack H. Obama, but also John S. McCain, who issued a statement today that ends:

But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

I disagree; it's not specious (though the way the argument is used certainly is): It's actually perfectly true that "the Second Amendment did not confer an individual right to keep and bear arms."

Look at the wording of the Amendment (corrected to modernize punctuation):

The operative clause (the clause that contains the subject and verb of the sentence) is in blue. Nowhere does the amendment say that it confers that right; "to confer" in this case means "to bestow," to grant or give. But the amendment speaks of the right as if it already existed, predating not only the amendment itself but the Constitution, the country, and indeed, every other constitution, charter, or country that has ever been. The amendment only states that the Constitution forbids whichever entites it controls from infringing on that pre-existing right.

Bearing in mind that I'm not a lawyer -- though I sometimes play sea-lawyer or Philadelphia lawyer on the web (as today!) -- it's my understanding that the Founders saw constitutionally protected rights falling into two main categories:

• Those rights specifically created by the Constitution, such as the right to vote in federal elections and the right to petition the government for redress of grievances; these are rights that cannot exist absent not only a government but this particular government: You can't have a right to vote for your member of Congress if your country has only a king and his privy council.
• Those rights that are fundamental to all people everywhere, and which fall within the "inalienable rights" described by the Jeffersonian phrase "life, liberty, and pursuit of happiness." These are fundamental rights that the Founders believed should be protected by every government -- which includes the states as well as the feds.

Thus it's perfectly proper to "incorporate" to the states those fundamental rights protected by the Constitution, while not incorporating the created rights. Despite the fact that the First Amendment begins "Congress shall make no law," I nevertheless agree with incorporating its fundamental protections to the states: the prohibition against establishing or prohibiting free exercise of religion, abridging freedom of speech, freedom of the press, or the right to peaceably assemble. I can see why the right to petition need not be incorporated, as that is a created right.

And yes, I am quite aware that individual states at the time the Constitution and the First Amendment were enacted had established state churches and did, in fact, prohibit free exercise of religion. Like the right to liberty versus the peculiar institution of slavery, the Constitution and the Bill of Rights were ratified in an environment of essential contradiction. Those contradictions would eventually have to be resolved; this resolution can come from new amendments (such as the Thirteenth, Fourteenth, and Fifteenth) or, post Marbury v. Madison, from the Supreme Court.

Today, I believe Americans, including judicial conservatives, would be utterly outraged if a state were to start jugging citizens for speaking out on issues, or rounding up Jews for heresy, or nullifying habeas corpus rights, so that the authorities could simply round up and incarcerate anybody they didn't like. We've long since completely accepted that not even the states can violate fundamental rights, at least of American citizens (most of us would extend that to any lawful resident of any nationality).

Deep down, we understand that our government did not give ("confer") those rights to us; we have them inherently and inalienably from our Creator, or even just as an inherent aspect of having consciousness and a conscience. The word "inalienable" means that fundamental rights cannot be taken or even given away. Even the mullahs of Iran cannot take away those rights; they can only violate them... and doing so constitutes a crime against humanity, making the mullocracy of Iran a criminal government.

(It's not necessarily our duty to enforce those rights; "we are champions of liberty everywhere, guardians only of our own.")

The way you determine which protected rights are fundamental is to ask whether its logically possible for the right to exist before the United States government was created.

It's obviously not logically possible to petition something, such as the United States government, that does not even exist; it's a silly exercise in semantics. Likewise, it's logically impossible to vote for your representatives before there is even a House of Representatives. Therefore, these are created rights, not fundamental rights.

By contrast, the right of freedom of speech was frequently discussed in the British Parliament long before we existed, and freedom of religion was argued for centuries, in many countries, before the 1780s. The fact that the concept of a right can be seriously discussed as policy means that it is not "logically impossible."

And it certainly is logically possible to envision a right to arms before the United States existed; arms existed, many countries allowed some or all of their subjects to be armed (such as England, where the stalwart yeomen were expected to take up arms to fend of foreign invasion; or Italy, where men and even women could carry swords and pistols to protect themselves). Therefore, by recognizing the right to keep and bear arms as a right and pledging to protect it from infringement, the Constitution clearly indicates that this is a fundamental right that was not "conferred" by the Constitution... no matter what Erwin Chemerinsky claims.

And I'm pretty sure the Founders would agree with me -- because all I'm doing is agreeing with them.

Hatched by Dafydd on this day, June 26, 2008, at the time of 5:58 PM | Comments (8) | TrackBack

At Last... Court Rules Founders Meant What They Wrote In the 2nd Amendment

The decision was just released literally a few minutes ago, so no details yet. But the majority opinion was, as rumored, written by Justice Antonin Scalia... and it begins with a definitive, unnuanced, categorical statement that the Second Amendment to the United States Constitution protects a right to keep and bear arms held by every American... not just those connected in some nebulous way to a "militia," whatever that word means in this day and age. (I don't know if it's limited to citizens or extends to legal residents; and whether it only applies to legal adults or reaches into lower teen ages -- in 1791, those in the militia automatically included all males between 16 and 40-something.)

This is a stunning blow to the national gun-prohibitionist movement; it knocks away the prop on which every federal proposal to ban whole classes of gun is based: the idea that the amendment only protects the "right" (?) of states to keep and bear militias. It was always a foolish and mendacious interpretation; but until today, it was one that had resonated with some appellate courts. (I don't know if this ruling affects state laws; see below.)

Many circus courts that held the amendment applied only to members of the National Guard hung their robes on an equally stupid misreading of U.S. v. Miller, 307 U.S. 174 (1939). In that bizarre case, Jack Miller and Frank Layton were charged with transporting a short-barreled shotgun across state lines. The trial court found that the National Firearms Act -- the law they were accused of violating -- was unconstitutional because of the Second Amendment; the Supreme Court overturned that verdict.

The Court ruled, at core, that the amendment only protected possession of those weapons normally used in armies or militias. No evidence was presented that short-barreled shotguns were in common use among such bodies (though of course they were): The reason no evidence was presented, I believe, was that Miller's attorneys did not show up at the Supreme Court hearing -- as their client had inconveniently been murdered in prison while awaiting appeal.

The Court never reached the question of whether Miller was in any kind of militia; but that didn't stop numerous appellate courts from falsely claiming that the Court in Miller held that the amendment applies only to members of the "militia," which at that time had become the National Guard.

But today's ruling puts paid to that deliberate obfuscation; the only thing clear at this point is that the Court has definitively held that the amendment applies to everyone, not just those in one of the state National Guard units. But the major point I need answered is whether the Court has "incorporated" that protection to state laws, as it has with, e.g., most of the rights in the First and Fourth Amendments: What does the Court say about whether states are likewise forbidden from violating the right to keep and bear arms, regardless of what their state constitutions say (or don't say)?

Reaching that question was unnecessary in the Heller case, and I suspect they steered clear of such overreaching. But this ruling is certainly going to spark federal cases on precisely that question. The amendment does not even mention Congress, as many other rights in the Bill of Rights do; so I think there is at least a serious argument that "the right of the people to keep and bear arms shall not be infringed" would apply to states as well as the federal government.

That question, more than any other, will determine the scope of this ruling; it will surely be litigated over the next decade or so:

• If federalism trumps the Second Amendment, then most gun bans nationwide will prevail;
• But if the right trumps federalism, we'll see a wholesale striking-down of such bans nationwide.

But we're not going to know the answer to that question -- or even whether the Court addressed it (probably not) -- until much later today, after lawyer-bloggers like Patterico and the lads at Power Line (not to mention Eugene Volokh, Beldar, Hugh Hewitt, and that lot) have had a chance to digest at least a significant part of the Scalia majority decision itself.

Keep watching the skies!

Hatched by Dafydd on this day, June 26, 2008, at the time of 8:01 AM | Comments (6) | TrackBack

June 15, 2008

More Boumediene Bothers and Bewilderments...

Those ghastly Tribunals...

Here's a thought that should bring you up short:

As Beldar wrote:

These commenters [on Beldar Blog] seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees. By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which -- not coincidentally -- are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Beldar refers to the Military Commissions Act of 2006, which created a set of procedures for a fair hearing for each and every detainee in the Guantanamo Bay military prison; it provided for legal representation for every detainee, rules of evidence, and a standard of probable cause to hold the captured enemy combatant "for the duration."

That is what five justices of the Supreme Court -- the four ultra-liberals plus Anthony Kennedy -- ruled "unconstitutional"... for foreign terrorists captured on foreign soil during a war, that is. But the same procedure is evidently perfectly constitutional when it's merely our own soldiers, airmen, seamen, and Marines on trial.

Goose, no gander...

Why are the Democrats uniformly cheering and lauding this decision, which seemingly ties the hands of the president and Congress for all time... even during a Democratic administration? Don't they expect to win big in November?

Yes they do, but...

I cannot imagine any other reason -- except a case of Bush Derangement Syndrome so overpowering that it even drives out their own self-interest -- why Democrats would be so united in applauding this wretched opinion, which is likely the worst Supreme Court decision of my lifetime.

Two, four, six, eight...

Finally, I wonder why Republicans and John McCain haven't jumped on a slogan as simple and obvious as this for the election:

I think that succinctly sums up the difference between the two parties... don't you?

Hatched by Dafydd on this day, June 15, 2008, at the time of 8:53 PM | Comments (1) | TrackBack

June 13, 2008

Lizards Propose U.S. Constitutional Amendment

I rarely support proposed federal constitutional amendments; most offer permanent solutions to transient problems, threatening to lock in today's compromise for all time. For exampe, I reluctantly supported the Equal Rights Amendment -- twenty years ago, as a young man; but I don't think I would today, because it is clear that the problems it was designed to resolve have been handled legislatively, and there is no chance that could ever be reversed by judicial fiat.

But yesterday's Supreme Court ruling in Boumediene v. Bush was so devastating in its effects, so unprecedented in its legal claims, and frankly, so mad in its hubris -- an undisguised power grab by the unelected branch of government over the warmaking power of the democratic branches -- that I honestly believe we must pass a constitutional amendment to undo the damage and restore sanity.

I am under no illusions that such an amendment will pass easily or quickly; but as a secondary point, if we word it carefully enough and limit it to just what we need, it will also serve as a potent campaign weapon against Democrats who refuse to support it.

Finally, it deals with an issue of such fundamental importance that it does indeed rise to the level of the Constitution of the United States... for it defines just who is covered by said Constitution.

Here is our first crack at wording such an amendment:

Our objects are threefold:

• The amendment must be brief and precise. The more complex an amendment is, the more leeway anti-American justices and judges have to find loopholes. This amendment is but eighteen words and doesn't even need an "enactment" clause, since all it does is define to whom the rest of the Constitution applies. Think how the framers inadvertently helped gun prohibitionists by prepending "a well regulated militia being necessary to the security of a free state" to the Second Amendment.
• The amendment must be clear to anyone who reads it, even non-lawyers (such as myself). We only have a hope of passing this if every man and woman, and even children above the age of thirteen or fourteen, understands exactly what it would do -- and why it's vital.
• The amendment must be clean. It cannot include hidden or unanticipated wiles; we cannot give the Democrats (and RINOs) any excuse or justification to hide behind as they vote against this amendment. We want a clean choice: Either you believe our Constitution extends protection to aliens living abroad -- or you believe it extends only to the soverign territory of the United States.

For an example of the last, it cannot say "extends to all citizens subject to," because that would mean that all immigrants, even legal immigrants, suddenly lose all constitutional protections. In fact, it cannot even say "all legal residents subject to;" although many people wish they could strip illegal aliens of all constitutional rights (no protection from search and seizure, no requirement to give them a fair trial before imprisoning them for crimes, etc.), such a provision would make it easy for Democrats (and many Republicans) to defeat it.

Worse, it would flip the political effect around to destroy any chance of the GOP picking up seats and trying again in the 111th Congress: Such underhanded and dirty pool would anger even many Americans who oppose legalizing illegal immigrants, and the growing Hispanic vote would become like the black vote: a Democratic plantation.

As I say over and over, I am not a lawyer. This wording may well run afoul of elements of constitutional law. However, a lot of lawyers read Big Lizards, and I especially invite them to comment on the wording and how it could be improved.

After a few days and any corrections that seem better to me, I plan to send this to every Republican senator and congressman, urging them to make it a part of the national GOP campaign for the November elections. I believe such an amendment, coupled with the campaign they're already running to "drill here, drill now, pay less," will give us an unprecedented and unexpected opportunity to reverse the trend of the 2006 elections and actually pick up seats -- perhaps even taking back the Congress. That is tough but doable, if we can change the climate to one that is just as toxic to Democrats, who are suddenly seen as anti-American, as it currently is to Republicans.

For God's sake, for a million practical, legal, and sovereignty reasons, we cannot let this insanity stand. Five people on that Court need a swift and strong kick in the robes from the American people.

Hatched by Dafydd on this day, June 13, 2008, at the time of 2:19 PM | Comments (36) | TrackBack

June 12, 2008

Supreme Court Gitmo Case: Sen. Joe Biden Is Right!

(We pause a moment while readers locate their jaws, rolling around somewhere on the floor, before continuing...)

Yes, I completely agree with Sen. Joe Biden's (D-DE, 75%) commentary on the Boumediene v. Bush Supreme Court decision released today... actually, with part of Biden's commentary. Well, to be perfectly blunt, I agree 100% with the last two sentences of Biden's statement:

As we look forward, we must take stock that this decision was five Justices to four. If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.”

Yes sir. One more justice. Contrarywise, if one more justice in the mold of Justices Ruth Bader Ginsburg or Stephen Breyer is appointed to the Court, decisions such as this will likely become commonplace.

Many conservatives wish someone less friendly to illegal immigrants had won the GOP nomination. They could never quite settle on who they wanted; nevertheless, many now threaten to sit out the election, forcing an Obama victory, in order to teach the rest of us a good, hard lesson -- bow to their wishes, even when they themselves can't decide what those wishes are.

I would like to address those conservatives directly: You have now seen what radical judges can do and how devastating that can be to the national security of the United States. You may very well see, in the next administration -- particularly if those "sitting out" get their way -- the federal courts order the release of top al-Qaeda terrorists back into the wild.

Five justices voted in the majority in Boumediene:

• John Paul Stevens is 88 years old; he was nominated by the unelected and very liberal Republican Gerald R. Ford. I cannot prove this, but I strongly suspect that Ford, like other liberals (Republicans and Democrats), believed in an activist judiciary, given his generally liberal politics;
• Ruth Bader Ginsburg is 75; she was nominated by President Bill Clinton;
• Anthony Kennedy is 71; is the only justice in the majority nominated by a conservative president, Ronald Reagan;
• Stephen Breyer is 69; he was nominated by President Bill Clinton;
• David Souter is 68; he was nominated by liberal Republican George H.W. Bush.

Note I listed them in order of age. Think about this: Nobody lives (or serves) forever; and it's hardly a revelation that the older a justice is, the more likely he or she is to leave the Court -- vertically or horizontally -- through simple old age.

All five justices in the majority are senior citizens; three are in their seventies or eighties (Stevens is getting close to his nineties). By contrast, three of the four dissenters is in his fifties; only Antonin Scalia is in his seventies. But there is a very good chance that the next president will replace at least one, probably two, maybe even three justices... mostly liberal judicial activists. It will be an extraordinary opportunity to shape the Court for literally decades to come... and one conservatives will only get if John McCain beats Barack H. Obama in the elections on November 4th.

Nominating Kennedy is probably the worst decision Reagan made while in office -- definitely worse than Iran-Contra. Nevertheless, Kennedy is a "swing" vote on the Court, often siding with the conservative side. Sadly, he chose this case as one where he would swing back to the left. Kennedy is a classic case of a justice who "grew" (became more liberal) in office.

Not so David Souter, who was known to be quite liberal -- and a judicial activist -- even before his appointment; he was championed by the liberal New Hampshire Republican Sen. Warren Rudman and the even more liberal former New Hampshire Sen. John Sununu, who had become George H.W. Bush's Chief of Staff. Bush-41 might have been rolled, but it wouldn't have taken much rolling.

By contrast, those dissenting justices who voted against the Boumediene decision were (also in order of age):

• Antonin Scalia is 72; he was nominated to the Court by Ronald Reagan;
• Clarence Thomas is 59; he was nominated to the Court by George H.W. Bush (somewhat redeeming Bush-41's appointment of David Souter);
• Samuel Alito is 58; he was nominated by George W. Bush (Bush-43);
• John Roberts is 53; he was nominated to the bench by George W. Bush (Bush-43).

All four of these justices were nominated by Republicans; by contrast, both justices nominated by Democrat Clinton voted to give -- not "recognize," but give for the very first time in our history -- habeas corpus rights to enemy combatants captured and detained abroad.

Three of the four dissenters were nominated by presidents who openly and proudly supported judicial restraint. In very stark contrast, three of the five in the majority were nominated by presidents who actively supported judicial activism; one was nominated by a president who appears to have had no opinion on judicial activism vs. restraint; and only one was nominated by a president who supported judicial restraint (and that one, Anthony Kennedy, is the least ideologically liberal of the majority).

Clearly, what matters most to the direction taken by the Supreme Court is which president nominates the justices: Liberal presidents invariably nominate judicial activists to the bench; conservative presidents generally nominate judicial conservatives to the bench. But some conservatives still want to sit out this election -- to teach us a good, hard lesson.

Finally, of the two nominees for president today, we have this:

John McCain has pledged to nominate justices in the mold of John Roberts and Samuel Alito and has praised Clarence Thomas and Antonin Scalia. McCain has condemned the Boumediene decision:

These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s [dissenting] opinion in this decision. But it is a decision the Supreme Court had made, and now we need to move forward.

In extremely stark contrast, Barack H. Obama has pledged to nominate justices in the mold of Ruth Bader Ginsburg and Stephen Breyer -- the two most ideological, doctrinaire leftist, and judicially activist justices on the Court. In addition, Obama has widely and categorically praised the Boumediene decision today (same NYT article linked above):

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

There is virtually no question but that McCain would nominate justices who would have ruled against Boumediene, while Obama would nominate justices who would rule for the terrorist detainees having full-blown trials in civilian criminal courts... with the full panoply of rights previously extended only to persons residing under American sovereignty.

What does this mean in practice?

• Barack H. Obama wants every enemy combatant captured on the battlefield to be allowed to have an attorney of his choosing, even if he chooses an al-Qaeda lawyer... or else the enemy combatant must immediately be released upon the decision of the first District Court judge (or the next, or the next) who hears his habeas petition.
• Obama wants every enemy combatant captured on the battlefield to have the right to demand all intelligence information, no matter how heavily classified, be handed over to his attorneys... or else the enemy combatant must immediately be released.
• Obama wants the terrorist attorneys of every enemy combatant captured on the battlefield to have the right to endlessly subpoena military commanders up to and including Gen. David Petraeus, commander of CENTCOM, forcing these commanders to drop everything and return to America to testify in the habeas hearing... or else the enemy combatant must immediately be released.
• Obama wants endless appeals and reappeals of any decision that goes against any enemy combatant captured on the battlefield... appeals over and over of the same issues, whenever the terrorist attorney can find yet another friendly federal judge. (Think that won't happen? Think of what happens whenever a death-row murderer gets close to his execution date. Imagine mass candlelight vigils led by prominent Democratic politicians demanding the release of Khalid Sheikh Mohammed, Ramzi Binalshibh, and Abu Zubaydah.)

And if Obama is elected president, with this Congress or the next likely one, he will have the power to get everything he wants.

But some conservatives still want to sit out this election. To teach us a good, hard lesson: Bow to our wishes, or like Samson, we will pull the temple of America down upon all our heads.

Think. Please. Think.

Hatched by Dafydd on this day, June 12, 2008, at the time of 6:04 PM | Comments (10) | TrackBack

May 22, 2008

Patterico and Gay Soldiers: Strict vs. Rational - Liberty vs. Privilege

Patterico has an interesting post up; I agree with his basic premise -- that pure policy questions should not be decided by the courts but by the democratic branches of government (the legislative and executive branches). But in the course of his otherwise excellent post, he makes, I believe, two fundamental errors: first, mistaking the lucidity of the explanation of a decision for the validity of that decision; and second, applying strict legal reasoning where a broader philosophical reasoning is wanted.

(Some of this is based on suppositions on my part; I'll try to point them out when I notice them.)

Just the FAQs, ma'am

In his post, "Ninth Circuit Issues Deceptively Important Opinion on 'Don't Ask, Don’t Tell'," Patterico slams a panel of three liberal judges on the Ninth Circus for their decision in Margaret Witt, major v. Department of the Air Force, et al -- a case involving the "don't ask, don't tell" policy prohibiting gays from serving openly in the military. And Patterico also berates the Supreme Court's majority opinion in Lawrence v. Texas. He argues that the lack of clarity in the latter created a confusing situation in the former: What level of scrutiny anent gays should courts apply to laws and policies?

This a very important question, as Patterico explains:

The reason this is important is because [sic] the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

He then goes on to note that the Court, in its landmark ruling Lawrence v. Texas (majority opinion by Justice Anthony Kennedy) -- which found a fundamental liberty for consenting adults to engage in sexual activity, procreative or nonprocreative, in private (including homosexual activity) -- never properly specified what level of scrutiny to apply to laws and regulations that apply to such sex:

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny -- essentially a form a “intermediate scrutiny” -- applies to the Don’t Ask, Don’t Tell policy.

The distinction here would be between a Court declaring that the Texas law prohibiting "sodomy" had "no rational basis," thus was unconstitutional; or alternatively, the Court ruling that whether or not there was a rational basis, the liberty being infringed was so fundamental and vital that the state of Texas had to go farther and show that:

• The law served a compelling governmental interest;
• That it was narrowly tailored to achieve that interest;
• And that it was the least restrictive means for achieving that interest.

Patterico may well be correct on the narrow, legal point that Justice Anthony Kennedy's opinion did not clearly indicate which scrutiny test should be applied. But... "drunk on judicial arrogance?" I cannot believe this attack only targets Kennedy's ability to write a judicial opinion; that would be a rather colossal case of overkill. I can only suppose that Patterico believes the decision itself, striking down "sodomy" laws across the nation, was an example of "judicial arrogance," what we would ordinarily call judicial activism -- that is, legislating from the bench.

Based admittedly on my supposition, I must conclude that Patterico believes there was no "liberty" at issue in Lawrence, no "fundamental right" to have sex that some would call sodomy, and that it was perfectly constitutional (whether or not a good idea) for states to ban it.

I take the contrary position: I believe Lawrence was correctly decided, no matter how good or bad was Justice Anthony Kennedy's legal argument in the opinion. I believe we do have the fundamental right to engage in nonprocreative sex (the usual definition of "sodomy," encompassing far more than gay sex), and that such privacy is a vital liberty issue.

But I completely agree with Patterico that Lawrence should not force judicial decisions in favor of same-sex marriage or striking down the "don't ask, don't tell" policy of the military service, thus judicially forcing the military to allow gays to serve openly. The rest of this post explains why, after the "slither on"...

Agreeable disagreement

Now, let me not make the same mistake that Patterico ascribes to Justice Kennedy; here is exactly where I stand on the underlying issues:

1. I have no argument with Patterico's point that the opinion in Lawrence offered no clarity on which standard of scrutiny to apply; that's a lawyer's question beyond my competence.
2. Likewise, Patterico and I agree that "don't ask, don't tell" is a foolish policy. I believe I'm also in agreement with Patterico (reading between the lines) that the military should simply drop its prohibition against homosexuals serving openly in the military, at all levels and in every MOS for which the individual qualifies. I think the current policy, even under "don't ask, don't tell," has created a terrible potential for blackmail, leading to espionage and sabotage.
3. Patterico and I definitely disagree on same-sex marriage; I believe allowing it strikes a dangerous and potentially deadly blow to Western civilization for reasons I have enunciated many times (most recently, in the reposted Californichusetts). But we definitely agree that whichever way a state decides, the process of decision should be democratic, not judicial (as I noted in Marriage, Money, and Ursus Maritimus, which evidently none of you liked).

4. I have no specific evidence where Patterico stands on laws prohibiting "sodomy," but I imagine (based on extrapolation) that he opposes such laws... but that he believes there is nothing unconstitutional about them; rather, I reckon he believes they should be overturned by legislatures or votes of the people.

   But while I agree with him on the demerits of anti-"sodomy" laws, I dispute the point that they should be constitutional; I believe Lawrence was correctly decided. I'll get to that in a minute.

Where I take issue with Patterico's post is not precisely on point (4) above, though that is the background; where we really part company is that Patterico's post tacitly assumes that a wretched majority opinion in Lawrence (which I cede for purposes of discussion) disproves the validity of the decision itself: A perfectly good decision can be obscured by an incompetent and self-aggrandizing opinion.

I also take issue with another tacit assumption: That if Lawrence v. Texas requires a standard of "strict scrutiny" anent policies such as "don't ask, don't tell," this will automatically force the policy to be overturned.

Scrutinizing "scrutiny"

The second point is the easiest to show; Patterico notes that the plaintiff in the Ninth Circuit case argued that Lawrence v. Texas protects private sexual activity as a "fundamental right," but that the Ninth rejected this position in favor of one Patterico finds barely less sweeping:

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope -- but don’t let its seeming modesty fool you. It’s a big step.

But suppose the court had gone farther and accepted plaintiff's argument. Would that mean that "don't ask, don't tell" would inevitably be struck down?

No, because courts have historically given the military great leeway even with rights everyone agrees are "fundamental"... including the First Amendment rights of freedom of speech and freedom of assembly. The service clearly abridges a servicemember's ostensible freedom of speech; and obviously military service does not grant soldiers complete freedom of assembly: They may be disallowed from leaving the base, they can be sent abroad without their consent, and they can be explicitly ordered not to participate in any political rallies. And they can even be prevented from leaving military service so long as they are still needed. And all this is true even in the post-Vietnam, all-volunteer military.

Regarding the strict-scrutiny standard, national security has historically been a textbook example of a "compelling government need." Courts recognize that armies and navies cannot afford their members the same degree of individuality and liberty allowed civilians, even in a free society. I don't think any federal appellate court ever found that the military draft was unconstitutional, for example; and that actually applied to civilians, not soldiers!

If the military lawyers could persuade the courts that there was any basis rationally related to national defense for preventing gays from serving openly in the Navy, Marines, Army, Air Force, or Coast Guard, then I believe that would pass the "strict scrutiny" test. Thus for purposes of military service, the standards of "strict scrutiny" and "rational basis" wouldn't even be that far apart; I believe the Court would tend to defer to the military leaders, no matter what lower courts held.

Liberty bonds; tyranny severs

In arguing my point (4) above, I will not try to make a legal argument. (I'm not a lawyer, though I sometimes play "sea lawyer" on the internet.) But I don't believe that only attorneys at law are allowed to opine on matters of liberty, nor that their opinion should trump any non-lawyer's opinion.

As I see it, the basic question decided by the Court in Lawrence v. Texas was this: Can government regulate private sex between consenting adults?

This brings up a related, very touchy subject: Is there a fundamental right to privacy implicit within the Constitution? There certainly is no explicit right to privacy; the case Griswold v. Connecticut -- ostensibly about whether a couple could purchase condoms -- held that there was just such a fundamental right to privacy found within (infamous expression alert!) the "penumbras" of other, explicitly protected rights in the Constitution formed by "emanations" from those explicit rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

The language seems pompous, antiquated, and quaint, leading many to conclude it is ridiculous and meaningless. But if you actually trouble to look up the words, you will see that the premise is not only defensible, it's actually quite quotidian.

A "penumbra" is "a surrounding area, a periphery." And an "emanation" is just "something that issues from a source." So all that this much derided and thoughtlessly dismissed sentence means is that cases suggest that explicit rights guaranteed by the Bill of Rights have implicit surrounding areas of consitutional protection, formed by the requirements of the explicit rights themselves: Some explicit rights, the Court held, could not be protected without protecting some similar, nearby, or related right that is not explicitly mentioned.

Your penumbra has an emanation...

Taking it out of the sexual realm, let me give you what seems like a good example to me; if a lawyer reading this post believes this to be a bogus illustration, please let me know. The Second Amendment is (I insist) an individual right of every adult in America, with some exceptions (felons, illegal aliens, children, drunkards). Here is what it says exactly, anachronistic punctuation and all:

(The punctuation and spelling were modernized before the Bill of Rights was ratified.)

Note, however, that it doesn't explicitly protect the right of the people to ammunition. The two words are not generally synonymous; there are many references to "arms and ammunition" and suchlike from the 18th century and earlier. So would those of you who reject the very idea of ancillary, implicit rights connected to explicit rights argue that it was perfectly acceptable for the federal government to prohibit the private possession of ammunition?

I doubt it; it's clear that the "right of the people to keep and bear arms" is meaningless if ammunition can be banned. Protecting the explicit right to keep and bear arms requires protecting the implicit right to keep and load ammunition. The right to ammunition forms part of the "penumbra" surrounding the Second Amendment formed by its "emanation" -- the need for ammunition to make the explicit right to arms meaningful.

Examining the private parts

Here is how the Court in Griswold reasoned its way a "fundamental right to privacy;" there is a good, basic philosophical argument here, regardless of whether it was legally well written:

In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430 -431. In Schware v. Board of Bar Examiners, 353 U.S. 232 , we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

Those cases involved more than the "right of assembly" - a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353 . The right of "association," like the right of belief (Board of Education v. Barnette, 319 U.S. 624 ), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. [381 U.S. 479, 484]

They follow by a list of explicit rights which can only be meaningfully protected by assuming an implicit but nevertheless basic and fundamental right to privacy. You can disagree with the specific examples cited, yet still logically accept the basic premise. I think nearly everybody believes there is a zone of liberty surrounding the individual, inside of which government may not intrude, except under the most extraordinary circumstances:

• How many of you believe that your state or city -- believing that beige is a particularly soothing color -- can constitutionally pass a law requiring the insides of all buildings, whether public, commercial, or residential, be painted the same shade of beige?
• Can government ban red and blue clothing, because the city council or state legislature (or Congress) declares them "gang colors?"
• Can it constitutionally mandate the number of squares of toilet paper individuals must use?
• Can it ban spicy food, even in one's own home, because it might lead to gastric ulcers and cause more health-insurance claims?
• Can it make kissing in public a criminal offense?

Many people do, in fact, believe that all of these are constitutional... nearly all such folk are lawyers. They implicitly accept the premise that any power not expressly forbidden to the Congress or the states is therefore perfectly proper for them to exercise. (A perfect example of being "overlawyered" in one's thinking.)

But fundamental rights long predate the writing of the Constitution; they even predate the existence of lawyers, let alone any specific, lawyer-generated enumeration of such rights. And the rest of us understand that no matter what the Constitution does or does not say, there are certain natural limits to the totalitarian impulses of government at all levels.

We also accept that our understanding of these fundamental rights will change over time: For example, in 1796, there was no national consensus that all human beings had a fundamenal right to liberty; a certain class of human beings, slaves, were denied that right. The right itself may have existed then, but if so, much of the country didn't accept it.

But regardless of what people would have accepted in 1850 or 1900 or even 1950, today in 2008, I assert that the vast majority of the American people accept that individual adults have a fundamental legal right to engage in consensual, non-commercial sex behind closed doors... including sex that will not produce a baby. Even most Americans who believe such non-reproductive sex is morally wrong rarely believe the government has the authority to jug sinners for engaging in it.

That means that the vast majority of Americans believe government has no authority to bar the use of contraceptives, because the decision of how many kids to have is not within the jurisdiction of government; in fact, that's one of China's great crimes against humanity. The right to use or not use contraceptives is part of a larger right of privacy.

Likewise, most Americans now accept that the right to engage in sex that your local city council disapproves of is also falls within the fundamental right to privacy. This includes, via Lawrence v. Texas, the right of homosexuals to engage in what some jurisdictions used to call "sodomy" -- particularly when one points out that "sodomy" can be defined, and has been defined in the past, to include virtually any heterosexual act other than the "missionary position." If the State has the authority to ban "sodomy," then it also has the authority to prohibit "adultery," which means any sex outside marriage... and that, too has frequently been done.

Real Americans do not see their governments as a surrogate parent (or surrogate priest), making every decision for every American; real Americans reject totalitarianism, even majoritarian totalitarianism. We all "draw the line" of individual liberty somewhere; most of us assume that there are zones of liberty not explicitly protected by the Constitution, but in which government should not intrude nonetheless.

Only a wretched handful believe liberty is precisely and exclusively limned by the explicit words of the Constitution, that any power not expressly prohibited is available for government, merely because the Constitution is "silent" on the issue. Philosophically, in our liberty-based culture, all else being equal, uncertainty should be resolved in favor of individual liberty, the states, or the federal Congress -- in that order.

Liberty, security, and sanction

I support the decision of Lawrence v. Texas striking down "sodomy" laws. So why don't I accept that "liberty" should also require same-sex marriage? What is the difference?

The right of privacy primarily protects private acts; but marriage is fundamentally a public act: It used to be called "publishing the banns;" even today, marriages are generally public spectacles where people spend thousands of dollars and invite all their friends, relatives, and distant acquaintances; many times, they even publish a squib in the newspaper.

Marriage is the public, social sanction of a relationship. Since those desiring marriage seek the approval, even applause of society, it makes perfect sense that society (through its democratic institutions) can constitutionally decide what specific types of relationship it's willing to approve. Under that authority, society has by and large decided it will not approve of marriages between three or more people, between adults and those below the age of consent, between people who are too closely related -- or between people of the same gender.

Marriage is certainly not necessary to make meaningful the right of gays to engage in sex with each other, unless one believes that sex, intimacy, and love can only exist inside of marriage. So nothing in Lawrence or Griswold even speaks to same-sex marriage (or polyamorous marriage).

All right... but doesn't a fundamental right to engage in gay sex force the end of "don't ask, don't tell?"

Again, certainly not... no more than a fundamental right to freedom of speech and the right peaceably to assemble force the end of military censorship and discipline. When you join the military, voluntarily or by being drafted, you give up certain rights formerly protected by the Constitution.

That doesn't mean the military must prohibit gays from serving openly, only that it can if the president and/or Congress so desires: National defense trumps individual liberty among military servicemembers, even under a standard of "strict scrutiny."

Necessary suppositories

Finally, I want to caution again that some of the opinions I impute to Patterico are actually suppositions I drew from reading between his lines; and I could be wrong. It has occasionally happened.

Very occasionally.

But even if I misstook his position on some issue, my arguments still stand as directed against the position itself... which presumably someone holds. It's a big country.

Hatched by Dafydd on this day, May 22, 2008, at the time of 7:07 PM | Comments (3) | TrackBack

May 21, 2008

Marriage, Money, and Ursus Maritimus

I have in my pocket three horrible court decisions: One is a state supreme-court decision from California; another is a decision by a panel of the D.C. Circus Court; and the third is an initial court order followed by further action now pending before U.S. District Court Judge Claudia Wilken, based in Oakland, California.

What do these three decisions have in common? Let's get you some particulars...

California Supreme Court to California Voters: Drop Dead

In a previous post here (Californichusetts), we discussed the demerits of the underlying policy of same-sex marriage. Today, we're more concerned with how the court reached its decision -- the process -- and the implications of such a process for the future of democracy.

A liberal on a bulletin-board I frequent chastised me; "a court would never" -- I paraphase him -- "pull a claim of unconstitutionality out of hat!"

Oh yes they did, sez I; this is easily seen by anyone who actually reads California Chief Justice Ronald George's appalling opinion. But it's even more obvious when reading the magnificent and stunning dissent by Justice Marvin Baxter, which begins on page 128 of the pdf linked above. Baxter wrote perhaps the most devastating dissenting opinion since Hugo Black's dissent on Griswold.

In this case, the court admitted that there was no history at all, none whatsoever, of same-sex marriage even being contemplated in the writing of the California constitution. So how on earth could the court be "in accordance with the constitution" when they say -- and this really is their reasoning -- that the fact that the legislature has passed some legislative relief for gays that does not include marriage means the legislature has inadvertently given "exlicit official recognition" (George's words) to the putative right of persons of the same sex to marry?

It's completely loony. From Baxter (pp. 5-7, 132-134 of the pdf -- the italics are Baxter's):

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision. Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians -- including domestic partnership rights which, under section 308.5, the Legislature could not call "marriage" -- the Legislature has given "explicit official recognition" (maj. opn., ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental -- article III, section 3, the separation of powers clause. This clause declares that "[t]he powers of state government are legislative, executive, and judicial," and that "[p]ersons charged with the exercise of one power may not exercise either of the others" except as the Constitution itself specifically provides.

The rest is equally brutal.

This decision was a pure power-play: Four members of the court wrestled the other three to the ground, declaring a brand, new right to marry a person of the same sex... and at the same time, declared homosexuality to be a "suspect class," like race, requiring "strict scrutiny" to be applied to any law that affects disparately those with different sexual preferences.

Who needs a legislature, an executive, democracy, or the people themselves, when we have black-robed masters who will so kindly tell us what to do?

But worse even than the policy is the usurpation of the will of the people. The people are striking back now: More than 1.2 million Californios signed a petition to place upon the November ballot a state constitutional amendment that has the exact wording of Proposition 22, which passed in 2000 by 61.4% -- and which the court just struck down. The idea is that if the constitution itself is amended to restrict marriage to one man, one woman, then clearly the court cannot continue to find that same-sex marriage is required by the very constitution that forbids it.

But of course, that assumes at least a faint, embryonic heartbeat of judicial dignity and humility in the breasts of the four members of the majority. If the citizen initiative constitutional amendment passes, but the justices in fact defy the will of the people and double down on same-sex marriage... well, we'll have a full-scale revolt in the Golden State, like the one that led to three California Supreme Court justices being recalled by the people (for persistently preventing the death penalty from being executed).

Democracy only works, and only serves to fuse individuals into a society, when voters have reason to believe their votes actually count. That allows us to accept defeat graciously, because we know that if in the future, we managed to get a majority to see it our way, we can reopen the policy in question.

But if the judiciary only supports democracy so long as the judges agree with the vote, then citizens will have no choice but to seize jurisdiction from the courts. And that could signal the beginning of the end of Western Civ. So let us hope the court accepts passage of the amendment with the same grace that those of us who support it would accept the will of the people should it lose.

Pawing the money

The next case takes place across the country, in the District of Columbia; the Treasury Department is in a lather after a three-judge panel of the D.C. Circus ruled today that folding money "discriminates" against the blind.

And why is that? Because blind people cannot see what denomination bill they have in their wallets! AP takes up the trail of tears:

The U.S. acknowledges the current design hinders blind people, but it argues that they have adapted. Some rely on store clerks to help, some use credit cards and others fold certain corners to help distinguish between bills....

The court ruled 2-1 that such adaptations were insufficient under the Rehabilitation Act. The government might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help, the court said.

"Even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The secretary has identified no reason that requires paper currency to be uniform to the touch," Judge Judith W. Rogers wrote for the majority.

Courts don't decide how to design currency. That's up to the Treasury Department [well... it used to be!], and the ruling forces the department to address what the court called a discriminatory problem.

This is absurd, of course. Recorded phone-help systems at government offices ("Push 1 for English, 2 for Spanish, 64 for Serbo-Croatian...") discriminate against the deaf, because they cannot access that information without "adaptations," like a texting phone. (The recorders of these phone-help trees "might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help.")

Elevator buttons in tall buildings discriminate against the vertically challenged, because they cannot reach the top buttons. Police discriminate against schizophrenics who want to live on the streets, because the cops continually arrest them for sleeping on the sidewalk.

Everybody has some inconvenience in life, and especially so when he has a disability. But failure to create a landscape with no sharp edges -- "Nerfworld," I dubbed it in a story anthologized here -- is not automatically unlawful discrimination.

One blind man makes exactly that point:

Not all blind people agree that U.S. money should be changed. The National Federation of the Blind sided with the government and told the appeals court that no changes were needed.

Charlie Richardson, the legally blind manager of Charlie's Express Stop inside the Capitol in Albany, N.Y., said he doesn't oppose changing the money but disagrees with the ruling.

"To actually be discriminated against is to have something denied to you," Richardson said. "We're not denied the use of money."

But the court did not agree; it has ordered Treasury to redesign all American currency, without regard to what Congress and the President have already decided.

Polar bear on a stick

Finally, recall that a few days ago, some environmental extremists won a court ruling from federal Judge Claudia Wilken, forcing the Department of the Interior to immediately rule whether the polar bear (Ursus maritimus) falls under the Endangered Species Act. As we all expected, this was simply Phase One of a deep plan.

The plaintiffs dropped the other shoe yesterday -- Phase Two of the judicial coup d'état: The enviro-mentally challenged loons have gone back to court to abuse the judicially forced listing of polar bears as "threatened" by "global warming" (which supposedly causes the Arctic ice to melt): They demand a judicial order forcing the Bush administration to implement the Kyoto Protocol, or some similar regulatory regime to combat Anthropogenic Global Climate Change (AGCC) -- a.k.a. Globaloney.

Judge Wilken issued her ruling in spite of (possibly in complete ignorance of) the fact that there is a raging conflagration within the atmospheric sciences community on whether global temperatures are still warming now, whether they will warm in the near future, whether it has anything significantly to do with human activity, and whether we can do anything about it anyway. I doubt she even cared... some scientists said Globaloney would kill the polar bears, and her heart simply bled at the thought.

Thus, she flexed her judicial muscles and forced Interior to dance to her tune. And now the same plaintiffs that she favored once want her to use her robe to force an anti-climate-change policy upon the entire United States, outside the democratic system:

[Interior Secretary Dirk] Kempthorne, echoing President Bush, said last week the Endangered Species Act was the wrong tool to reduce greenhouse gas emissions. Kempthorne that he would propose "common sense modifications" to make sure the polar bear listing would not set backdoor climate policy outside the normal system of political accountability.

The conservation groups said Kempthorne acted improperly.

"On the one hand, he's acknowledging that global warming is impacting polar bears," said Melanie Duchin of Greenpeace in Alaska. "On the other hand, he's not willing to do anything about it. We're asking the administration to uphold the spirit and intent of the Endangered Species Act."

Since when was the "spirit and intent" of the ESA to completely bypass Congress and the President to allow judges to enact sweeping changes to our energy, economic, and pollution regulations, all ordered by an unelected person who holds her appointment for life? I reckon I missed that part of the debate over passage of the Endangered Species Act.

In this case, it's clear that the polar bears don't even enter into the affair, except as hairy, white bludgeons by which leftist enviromentalists hope to pound the Bush administration into combating AGCC -- no matter how many scientists doubt the connection between human activity and global warming, and no matter what it does to the economy. They want to bypass not only the democratic process but also the normal scientific vetting process; instead, they would use the courts to render a final verdict on the issue... quickly, before somebody discovers something contrary!

That last line is not a joke; I believe some of the activists are actually aware of the rising chorus of well-credentialed scientific naysayers, and they want to cut them off at the knees. Once the Judiciary has decided, how could mere research undo that judicial decision? The colossal edifice of Globaloney would stand thus in perpetuity, unaffected by the tides and vagaries of honest scientific theory.

The leaden thread

In the brilliant "Rumpole" stories by John Mortimer, British barrister Horace Rumpole often argues in the Old Bailey that British justice hangs by a "golden thread," the principle that the crown must prove a man guilty before he can be punished, that he starts out with the presumption of innocence. But in America's courtrooms today, we have a new principle -- the leaden thread of judicial activism: This is the presumption by an increasing number of judges that, by virtue of the very robes they wear, they know best how to govern society.

In his column yesterday on the same-sex marriage decision by the California Supreme Court, Dennis Prager nailed the "hubris" -- I would say narcissism -- that applies to all the judges discussed above:

Another reason for this decision is arrogance. First, the arrogance of four individuals to impose their understanding of what is right and wrong on the rest of society. And second is the arrogance of the four compassionate ones in assuming that all thinkers, theologians, philosophers, religions and moral systems in history were wrong, while they and their supporters have seen a moral light never seen before. Not a single religion or moral philosophical system -- East or West -- since antiquity ever defined marriage as between members of the same sex.

That is one reason the argument that this decision is the same as courts undoing legal bans on marriages between races is false. No major religion -- not Judaism, not Christianity, not Islam, not Buddhism -- ever banned interracial marriage. Some religions have banned marriages with members of other religions. But since these religions allowed anyone of any race to convert, i.e., become a member of that religion, the race or ethnicity of individuals never mattered with regard to marriage. American bans on interracial marriages were not supported by any major religious or moral system; those bans were immoral aberrations, no matter how many religious individuals may have supported them. Justices who overthrew bans on interracial marriages, therefore, had virtually every moral and religious value system since ancient times on their side. But justices who overthrow the ban on same-sex marriage have nothing other their hubris and their notions of compassion on their side.

These undemocratic judges ride high above the fray on great, white stallions, passing lordly judgment -- immune from being gainsayed, corrected, or even criticized:

• Four (out of seven) justices on the California Supreme Court know better than the legislature, the governor, even the people themselves; they know better than thousands of years of religious and philsophical systems how to organize society. And by golly, these Anointed -- with their Vision of the perfectability of society -- will fix all our problems for us.
• The D.C. Circus (well, two out of a three-judge panel of the appellate court) feel great compassion for the blind -- itself a noble emotion; so to assuage their feelings of pity and sympathy (and perhaps guilt at being sighted), they order the Treasury Department to implement the judges' own personal solution to the problem they themselves defined. (The decisions of the democratic branches of government which normally have jurisdiction over printing and engraving are irrelevant; those folks just don't share the Vision.)
• And lone Judge Wilken -- I know you're shocked to discover that she is a Clinton appointee, confirmed by the Democratic Senate of 1993 -- decides all by herself that polar bears must be designated as "threatened" (the plaintiffs now demand that be changed to "endangered," the stronger classification)... and she will decide, again all by herself, whether that means we must implement a drastic curtailing of energy usage, costing us hundreds of billions of dollars every year (irrelevant as an issue in the case) and damaging our ability to generate energy for generations to come (equally irrelevant... the poor, suffering polar bears!), all to reduce greenhouse gas emissions that may or may not have anything to do with Arctic sea ice that may or may not be melting in temperatures that may or may not still be rising.

Three cases; three separate jurisdictions; one leaden thread: "benevolent" judicial tyranny... for our own good. And one presidential candidate who promises to appoint that exact kind of judge, and only that kind, in every federal judicial opening he is allowed to fill. Judges who will rule for life, with no realistic way to get them out of office, no matter how egregiously they rule. (Thelton Henderson was never impeached, despite his ghastly ruling that refusing to discriminate on the basis of race constitutes discrimination on the basis of race.)

All right, conservatives... still think there's "not a dime's worth of difference" between John McCain and Barack H. Obama?

It's well at this point to recall Auric Goldfinger's great rule of threes; it was only alluded to in the Ian Fleming "James Bond" novel Goldfinger, I believe, but stated explicitly in the movie: "Once is happenstance, twice is coincidence. The third time is enemy action."

Just so long as we all know what's going on here.

Hatched by Dafydd on this day, May 21, 2008, at the time of 4:51 PM | Comments (2) | TrackBack

May 15, 2008

Californichusetts - bumped from March pending new post

Surprise, surprise, the California Supreme Court is currently deciding (yet again) whether to tell California voters to go to hell, and to order the era of gender-neutral marriage... just as Massachusetts did! Thanks; I always wanted us to take our lead from Hyannisport.

So let's put on our manly gowns, gird our loins, and pull up our socks: It's time to deal with this invitation to cultural suicide once more.

It boils down to two questions:

• Doesn't the "equal protection" clause of the state constitution require the legalization of same-sex marriage (SSM) as a state constitutional right?
• Even if there is no "right" to SSM, isn't it a good idea to expand marriage to be more inclusive?

On a nutshell, he answer in each case is No -- it doesn't and it isn't. The rest of this post explains why.

How equal is "equal protection?"

In California, it's not just the state legislature that has defined marriage as a union between one man and one woman (explicitly in 1977, implicitly earlier); the people themselves did so in 2000 via Proposition 22, which added Section 308.5 to the state's California Family Code:

The citizen initiative passed overwhelmingly. If a court overturns it, it had better be because the court found it violates a clear, undeniable, and unambiguous right... not just because four justices voted against it seven years ago, and now they have their revenge.

But the only legal argument ever offered is that the rule violates the "equal protection" clause of the California constitution, Article I, Section 7:

Proponents of SSM say equal protection is violated for a homosexual, because he cannot marry the person that he wants to marry. But of course, a heterosexual also cannot marry the person he wants to marry if one of them is already married, they're too closely related, or one of them is too young. Throughout human history, marriage has always been strictly limited to certain types of unions; it has never, in thousands of years of human history, been an unrestricted right.

Gender is just one of the restrictions; if the others don't violate equal protection, then neither does the gender restriction. And if it does violate equal protection... then what's the legal rationale for banning polygamy?

Cat got your tongue? "But my four wives and I really love each other!"

With all restrictions dropped but the declaration that "we love each other," what's to stop gang members from all marrying each other, so that none will be able to testify against another? How do you prevent an entire building full of spinsters marrying the same guy, so each can receive Social Security? How do we prevent one American citizen from marrying five hundred Argentinian women and men to bring them all here as permanent residents?

Marriage needs restrictions: Without them, it's no more special a relationship than a bowling team or union membership.

So you're in favor of banning interracial marriages too, huh?

A ban on racial intermarriage has never been a piller of Western civilization; racism itself (per Dinesh D'Souza's the End of Racism) dates only to the sixteenth century. And most of the miscegenation laws in California were passed from 1901 onward, during the "Progressive Era" -- they were Jimmy Crow Lately laws.

Miscegenation laws were not repealed not by the courts, which never found any equal protection violation; in fact, they found no problem with them at all. It was the people, speaking through their state legislature, who rejected racism in the marriage laws in 1948 (after the Progressives and other socialists made those laws progressively restrictive through 1945).

Why did the legislature repeal those laws? Because society decided that there was no significant difference between the races; the differences are purely cosmetic. Thus, there was no compelling reason why a black man could not marry a white woman, or a white man marry a Hispanic woman.

However, nobody except self-described "queers" (radical "gender-free" advocates who proudly use the term on themselves) believes that there is no significant difference between males and females. In fact, we're discovering new differences every year, including distinctions in thought processes, temperment, and styles of exercising authority.

Unlike marriage between black and white, a marriage between two men or two women is completely different in character from a marriage between a man and a woman.

It has a great effect on child rearing -- the correlation between fatherlessness and violent crime and other antisocial behaviors is admitted by every sociologist -- and even on the behavior of the spouses themselves. When men mix only with other men, or women with other women, all the negative traits of each sex are magnified. But when men marry women, both parties moderate their behavior, and we achieve at least some union between yang and yin.

(As kids who grow up with divorced parents now, having two fathers can be terribly confusing and can also lead to the kids playing one Dad off the other. Fatherlessness and overfathering are both very sub-ideal.)

Finally, experience teaches that cultures that allow polygamy, such as traditional Moslem cultures, end up devaluing women and girls to the point where the papa will kill his own wife or daughter if he thinks (or imagines) she has shamed the family name. It's much, much rarer for a father to kill his teenaged son for such imagined shame, because males are so much more important in polygamous cultures. (They may encourage sons and daughters alike to become suicide bombers, but that is completely different: Radical Moslems consider that to be enhancing the family honor. It's like sending sons off to war. But the father rarely murders his son as punishment for shaming the family.)

Societal survival is a compelling interest

Thus, society does have at least three compelling interests in restricting marriage to one man and one woman: The effect on getting and raising children, moderating behavior of individual men and women, and promoting the full equality of the sexes. And equal protection is not violated, because every resident, regardless of sexual preference, may legally marry anyone he wants, provided both meet society's qualifications anent age, sex, number, family relationship, and of course willingness.

If we ever decide to change any of those restrictions, it must come from the people themselves... via the legislature or directly by citizen initiative. The courts should never drive society willy nilly towards the utopian leanings of the judges. That is the difference between leftists, who favor totalitarian, top-down rule by "experts" in all areas of life (from economics to religion to marriage)... and those of us on the right, who prefer individualism, Capitalism, and democracy, where the women and men in society get to decide for themselves, through the ballot box, what axioms define society.

For a perfect example, let me explain why I absolutely support Lawrence v. Texas (the U.S. Supreme Court case that struck down anti-"sodomy" laws across the nation) -- yet I oppose with equal fervor Goodridge v. the Department of Public Health, the ruling by the Supreme Judicial Court of Massachusetts forcing the state legislature to legitimize SSM.

Simply put, Lawrence is individualistic and democratic: It does not require you to accept gay relationships as the equal of heterosexual relationships -- it just prevents you from throwing them in jail for it. It's one aspect of "the right to be let alone." Thus, Lawrence is individualist and conservative... modern conservatism has always recognized freedom of conscience in principle, even if some individual choices carry enough "ick" factor to tempt conservatives to make an unwarranted exception.

But Goodridge is totalitarian and leftist: It requires you to treat SSM exactly the same as mixed-sex marriage, and to hell with your deeply held religious beliefs. That is not the role of the courts.

SSM supporters twist words to impose a total, top-down transformation of society to fit the utopian ideology of the Left, using the phrase "equal protection of the laws" as a weapon to overthrow the democratic process -- quite literally, in the case of California and our Proposition 22. So on to question two...

What's so bad about SSM anyway?

This section will be briefer than it could be -- I could write an entire book! -- because I'll just sketch the argument; if you want more specifics, type "same-sex marriage" into the search box in the right sidebar and read my earlier posts.

Simply put, here is the syllogism on which I operate:

1. Our society ultimately rests on a small number of irreducible axioms: inalienable rights, government by consent of the governed, etc.
2. One leg of the stool of Western civilization is the marriage of one male to one female. This has been the definition in our society going back thousands of years. It encourages the interaction of male and female and the civilization of boys, female equality and women's rights, and the rights of children. It has dramatically shaped our culture.
3. But not irreversibly shaped; if you knock out one leg of the stool, it may still appear to stand; but it becomes ricketier, less stable, and more prone to topple over when hit by something external... such as militant Islamism, to pull a random example out of my hat.
4. While many people (especially the young) are eager to "change everything," a certain level of stability is vital to society, both culturally and legally. Our experience of societies that have a different set of axioms -- such as the Moslem and African cultures -- warns that treasured rights and privileges that we take for granted would not survive such ham-fisted tampering.
5. So for God's sake, don't do it!

Here's what's so bad, wise guy...

The law of unintended consequences applies in full force here. For example, the easier we make it for any group of two or more people to be legally considered "married," the less special is the marital relationship; as it becomes less special, it attracts fewer people. Fewer marriages means fewer children, hence a waning, dying culture (cf. Northern Europe, esp. Scandinavia).

Fewer marriages also mean kids who are born are more likely to grow up in fatherless homes. Looking at America's black population, we see an extraordinary rate of out of wedlock births (69.3% of all births, compared to 31.7% of white babies - Table 14) and fatherless households (60%, compared to 22% for white children). If we compare that disparity to the disparity in violent-crime offender rates between blacks and whites (blacks were nearly three times times as likely, 2.8:1, to commit violent crime in 2005 as whites; Sourcebook of Criminal Justice Statistics, 2000 Census), we see a strong correlation between out of wedlock birth and fatherlessness on the one hand and the commission of violent crime on the other. This is hardly surprising; a strong and law-abiding male role model teaches boys how to resolve problems peacefully and legally.

That correlation should tell us that the very last thing we should be doing is discouraging heterosexuals of any race from getting married: Raising kids in an intact, married family makes them much less likely to become either violent criminals or the victims of violent criminals. But diminishing the "sacred specialness" of marriage by opening it up to any and all groups of people who declare "love" for each other does exactly that: If marriage means nothing, then why get married?

The West is the best

Our Western culture is unique in many ways: It's the strongest and most economically successful culture in human history; it's the freest and most respectful of individual rights; and it's also the most conservative culture on the planet, in the sense of conserving the virtues and mores of the classical liberalism of the nineteenth century -- derived from Enlightenment philosophers such as John Locke and first enshrined into law by the American Founding Fathers at the tail end of the eighteenth century.

Asian cultures (excepting Japan, which is completely Western) are mostly radical socialist cultures (Socialism includes both Marxist and fascist versions), still vainly trying to transform the world and create the New Socialist Man. And Moslem cultures are too often reactionary, trying to recreate the days of the Prophet -- more than thirteen centuries ago.

The Western culture converted to what we now call "traditional marriage" more than two thousand years ago; traditional African and ancestral American cultures never enforced "traditional marriage;" the socialist cultures of the East rejected spiritual unions (marriage) in favor of civil partnerships many decades ago; and traditional misogynist Islamic law still treats women like cattle.

Why on earth would any sane person want to monkey with the Western marriage model?

Jonah swallows the whale

Finally, I love this very appropos passage from Jonah Goldberg's new masterpiece, Liberal Fascism (pp. 133-4), which perfectly captures those radical activists trying to transform America into their own utopian vision:

Sadly, that is exactly what's going on here and now; and our enemies without and within call it "historically inevitable" that they will succeed. If so, fellow right-wingers, then it's our bounden duty, as William F. Buckley, jr. wrote in the National Review mission statement in 1955, to "stand athwart history, yelling Stop."

Ergo --

So to all those leftists who are screaming, arguing, threatening, cajoling, extorting, commanding, and suing to cram same-sex marriage down Californians' throats, and most particularly to the California Supreme Court...

Hatched by Dafydd on this day, May 15, 2008, at the time of 2:55 PM | Comments (19) | TrackBack

April 12, 2008

Barack Obama - "Liberal Fascist" on Parade

Here's Sen. O:

Obama, in remarks he planned to make to reporters Friday morning, wants Congress to pass legislation he has sponsored that would require corporations to have a nonbinding vote by shareholders on executive compensation packages.

Under Obama's legislation, shareholders could not veto a compensation package offered to an executive and would not place limits on pay. Rather, they would have a means to publicly express their position.

A similar bill passed the House last year.

Oh. Well... I turn to my well-thumbed pocket-sized edition of the United States Constitution (I filched it from Sen. Robert Byrd's jacket while he was gibbering on about his little dog Billy). There's this section in there, see, that lists what powers Congress has... the only powers. You'll find it in Article 1, Section 8; but to save you the trouble of looking it up, I'll quote it here. It's pretty long, but you can just skim, if you're in a hurry:

And that's pretty much all the powers that Congress has. You may notice that nowhere in there does it say that Congress has any authority to order corporations to hold a vote among all their shareholders -- non-binding or not -- on the compensation packages they offer the CEO or any other corporate officer or employee. If the Senate follows suit on what the House already did, then both chambers will be in egregious breach of the Constitution.

Of course, that possibility holds no terror for members of Congress: They've been passing laws that bore no relation to any enumerated power for many decades now, and usually they're upheld by liberal judges. But that's not the issue here.

Rather, this proposal of Barack Obama's is a wonderfully illustrative window into his totalitarian heart. Like all good "liberal fascists," Obama is not concerned with ancient words written on dead trees. So what if Congress has no authority to do what is necessary... it's necessary! Enough talk; Obama wants action, action, action!

John McCain at least understands constitutionality: He promises only to use the presidency as a "bully pulpit" to try to shame corporate boards of directors into reining in some of the more outrageous salaries, bonuses, and stock options; and fulminating from the presidential pulpit is certainly within the scope of powers of the president. (Now, if he were to issue an executive order forcing corporations to comply, that would be just as unconstitutional as Barack Obama's law.)

Nor do I think the Securities and Exchange Commission has any such authority, nor the Federal Trade Commission, nor OSHA, nor any other regulatory regime. I'm pretty sure executive pay is solely at the discretion of the corporation itself, through its officers and its directors. If they choose to put the CEO's compensation up for a non-binding referendum among the shareholders, that's their own business (literally).

Neither Congress, nor the president, nor the Court has the right to issue such an order, in my non-lawyerly opinion. There is still such a thing as freedom and Capitalism in this country; and we have a Constitution that restrains government from just steamrolling over private parties or publicly held corporations.

But to Obama, the Constitution is just an obstacle that must be got around or simply ignored. What's more important, all those "procedures" that limit what government can do to help people's lives? Or enacting what the masses really want -- making CEOs work for no more than the company would pay a journeyman machinist? Action, action!

"President Obama" will try to force his laws through; and if blocked, he'll issue a whirlwind of royal proclamations (executive orders)... all to "solve problems" using the "third way"... not Communism nor democracy and Capitalism, but just the efficiency of a maximum leader who has his finger on the pulse of America, giving the people what they want without the foot-dragging of democracy or the destructive competition of Capitalism.

Just letting you know what we're in for, if -- out of mistaken support for Mr. Audacity or equally foolish McCain Derangement Syndrome -- we allow Senator B.O. to be elected president.

Hatched by Dafydd on this day, April 12, 2008, at the time of 6:24 AM | Comments (8) | TrackBack

January 4, 2008

Killing Us With Kindness to the Unkind, Decency to the Indecent

A "shibboleth" is a word used as a test: The pronunciation determines whether one is an "insider" or "outsider" (part of the tribe or a spy from some other tribe). More generally, it can mean a phrase or even a custom whose precise execution tells us to which tribe the actor belongs.

In this case, here is the shibboleth I'm thinking of, from an AP story on a death-penalty case before the U.S. Supreme Court:

The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Kennedy's lawyers say the death penalty for child rape violates the Eighth Amendment protection against cruel and unusual punishment.

In my tribe, "cruel and unusual" evidently means something very different than it does to defense lawyers... or at least different from what they argue (I don't care what they believe in their heart of hearts; they are attempting to enshrine into common law the idea that nothing, nothing, nothing can legitimately draw a sentence of death but cold-blooded murder with special circumstances; many even argue against that).

Who composes the other tribe, those who fight every death sentence? Well, some members are simply anti-punishment; these are the ones who agitate not only for the abolition of the death penalty but also to reduce all sentences for all crimes.

Other members are simply driven mad with fear that an innocent person might be wrongly executed by accident (or maliciousness). In fact, I'm certain that many already have been: In this country alone, we have had capital punishment since -- well, since this country sprang into existence. And for much of our history, many locales were none too scrupulous about whom they punished, even via the ultimate sanction. *

For both groups, we note many bizarre customs that differ, I believe, from the tribe to which most Americans belong:

• In their tribe, the pain that might be felt for a few moments by those being executed by lethal injection is more important than the pain that will be felt for the rest of the lives of the victims or their families.
• In their tribe, you cannot execute a serial killer, because he is by definition suffering from a mental illness; you cannot execute a stupid killer, because he is by definition mentally retarded; you cannot execute a 17 year old killer, because he is by definition a "child" with no well-formed sense of right and wrong... nor a 19 year old killer because he was (by definition) a "child" when he killed.
• In their tribe, no appeal from a death sentence is ever the "final appeal."
• In their tribe, capital punishment may be constitutional -- but every possible method of carrying it out is unconstitutional.
• And in their tribe, the "right" of a raper of children to kindness and decency is of more weight than the horrific, lifelong trauma he inflicts on his victims... which might be alleviated by the knowledge that he paid the ultimate penalty for his depraved indifference to human life.

I have said for years (and gotten in trouble for saying it) that I agree with the liberals on one point: All human life has value; but sometimes, that value is a negative number. I don't restrict that condemnation only to serial killers and cannibals; I apply it to any person who has that "depraved indifference" to the lives of other human beings, and who criminally uses them as his playthings. I think it especially apt for those who hurt the most vulnerable among us -- children -- simply for the criminal's own sick pleasure. And I, personally, would execute every one of such vile, amoral subhumans.

If you kill a person who doesn't need killing (as determined by a court), you should have no guaranteed that you will get to keep your own life. (On the other hand, I have a fairly generous definition of which persons might "need killing.") Similarly, no rapist who steals the life and innocence of a child, even if he leaves the child alive, should receive any guarantee of being allowed to live. And the same for those who commit treason: No guarantees, no "right to life."

The death penalty should never be mandated; that's an invitation to kill all the witnesses, as well as (obviously) the victim himself. There should be discretion allowed the judge for tough cases, such as when a person overreacts in a tense situation and kills an innocent... or even a criminal, but one who is not egregious enough to "need killing."

For example, a father who premeditatedly kills a 20-something year old sleazebag for having "consensual" sex with the father's 14 year old daughter should not be executed; a life sentence, or even a long term short of life, would be more reasonable. (I put "consensual" in quotes because legally, a minor cannot consent to sex; but there is a huge difference between statutory and forcible rape, in my opinion.) Same with a neighbor who burns down an occupied crack house that has been selling drugs to local children.

I don't believe in "zero tolerance" laws, and I would not demand death in every case of murder. Nevertheless, I believe we should have twenty to thirty times as many executions per year as we actually have. At the very least, we should clean out Death Row, executing all those prisoners awaiting a death sentence who have had several reasonable chances to bob for the apple of appeal. We should be executing at a rate faster than we're sentencing to death, otherwise we'll never catch up... and most of the capital sentences will end up being de facto LWOPs (life without parole) instead.

As I said, I would always make exception for those who kill people who need killing; and I have a much more expansive definition of that then does, e.g., Dennis Prager or Patterico (I think). For example, I believe "He was in the act of robbing me" should be a legitimate (affirmative) defense to the charge of unpremeditated homicide, even if the robber had no weapon, if there were no other reasonable way to stop the robbery. I despise thieves, especially those who burgle and rob with impunity, knowing that if they're caught, they'll simply be let off with time served.

If I'm on a jury deciding a case where the facts show than the old lady on trial for murder shot and killed a mugger in the subway, even one who just punched her and took her purse (no threat of death) and was on his way out the door... well, at the very least, she gets a hung jury, because I would not vote to convict without some extraordinary circumstance. When a thug undertakes to terrorize and violently assault someone, he assumes the risk of getting shot himself.

In any event, I do not consider death for a child rapist either cruel or unusual; in fact, I consider it cruel and unusual to society, to the parents, and especially to the child victim to let such a person live... especially considering that so long as he is alive, some soft-hearted, soft-headed judge, parole board, or governor can always decide to set him loose on the world again.

* I can even give you a probable name: Caryl Chessman, executed for being the "Red Light Bandit," was likely innocent of those rapes, I believe. My father was a 3-L in law school at the time, and he attended some of Chessman's final appeals in 1960. My father's impression was that the court never seriously considered Chessman's central argument: That the trial transcript was fundamentally flawed; they simply responded that the transcript in question didn't show any serious irregularities.

Hatched by Dafydd on this day, January 4, 2008, at the time of 10:40 PM | Comments (9) | TrackBack

December 6, 2007

A Bill of Rights for a More Modern Age

It has occurred to me that in view of the fact that the Constitution, particularly the Bill of Rights, is a “living document,” that we should rewrite it with the more modern age in mind.

Since the framers couldn’t possibly have known about television, the Internet, hip hop, atomic weapons, terrorism and the rights of minorities and women (they were, after all, dead white men), obviously their views may be antique at best and dangerously anachronistic. After all, what could a bunch of slave-holding plutocrats know about rights?

First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

New version: Freedom from Religion: No one will be forced to endure anyone else’s expression of religion. Although everyone will be allowed to practice their religion, they cannot do so if it would offend anyone else’s religion. Nothing in this amendment shall be taken to pertain to the Islamic religion.

Freedom of Speech and the Press: Congress shall make no laws abridging the Freedom of Speech or the press unless said speech or press creates corruption in government, or makes it harder for an incumbent to be reelected, or makes it harder for progressive causes to move forward, or offends any minority or interest group. Furthermore said speech must be truthful, with truth to be determined by the person who is most likely to be offended by it. Furthermore, any act of expression, however otherwise lawful, is not protected if someone can claim that it would promote hatred. Other than that, say anything you want!

Freedom to Assemble, Petition: Because lobbyism tends to corrupt good government, the freedom to petition the government shall be limited to individuals, not organizations, and individuals shall also not be allowed to petition the government if they are part of some interest group. The freedom to associate with anyone you want shall not be abridged, unless you don’t choose to associate with members of other races or sexual orientation, in which case you will be forced to do so.

Well, thankfully we got through the First Amendment. It was a big one, and others should be easier to dispose of.

Hatched by Dave Ross on this day, December 6, 2007, at the time of 4:54 AM | Comments (4) | TrackBack

November 21, 2007

"Apt Natural - I Have a Gub"

Inveterate (or invertibrate) movie-goers will of course recognize the title immediately, coming from one of the first crime "mockumentaries" ever made.

So what can we expect as the Supremes warm up to the great gun-rights debate next year?

The decision itself will hinge on one fundamental question that has been controversial since the early 20th century, but was fairly commonly held, I believe, prior to 1900: Does the Second Amendment protect the gun rights of each individual legal resident -- or does it only protect the "rights" of states to have National Guard units?

(States do not have "rights," of course; only powers, privileges, and immunities. But gun prohibitionists are forced to use the word "rights," because that's what the Second Amendment uses, and they must match.)

All the blather about constitutional amendments being outmoded won't make a dent on the court -- either side; everything will hinge on what the words actually meant when they were written and what they mean today. The complete text of the amendment reads:

Yes, I know; it's overpunctuated by today's standards. But it was written in 1789, and different rules for punctuation applied.

Clearly, when the Founders ratified this amendment two years later, they envisioned a national militia in place of a standing army (they were down on permanent armies making permanent war).

The idea was that if we were attacked, word would go out to every hamlet and town (or "every omlet in town," as I used to think), and all the Minutemen would drop their scythes -- or their printing presses, though they'd better step nimbly out of the way if they didn't want to lose a toe or two -- grab their "Kentucky" long rifles (made in Pennsylvania), and band together into an unbreakable wall of national defense.

Obviously, we don't do things like that anymore... so how should we interpret the amendment now?

Those of us who believe in gun rights argue that with the rise in urban residency and the increased firepower of criminals, individuals still need private arms in order to "establish justice, insure domestic tranquility, provide for the common defense, [and] promote the general welfare." We argue that crime statistics, particularly those by Professor John Lott, demonstrate that an armed populace has less crime, not more, without any measurable increase in accidental gun deaths or injuries.

Those who support gun prohibition hang their hats on the first four words, arguing that the original purpose -- the citizen's militia that took the place of a standing army -- no longer exists, and the only corresponding extant entity (since the Dick Act, a.k.a. the Militia Act of 1903) is the National Guard (divided into state commands).

Therefore, the prohibitionists will argue, the rights "granted" by the amendment devolve upon the various states, which control the National Guards when not activated by the federal government.

I find this argument untenable for that very reason: Passing lightly over the idea of states having "rights," how can states possess the constitutional right to "keep and bear arms," if in the same breath we agree that D.C. can simply federalize those arms (and the folks keeping and bearing them), thus removing them from state control? It's utterly contradictory.

Ergo, either the amendment means nothing -- or else it means that the rights granted protected adhere only in "the people," as the words themselves make clear. In all other uses in the Constitution, "the people" translates to each individual person.

(Fundamental rights are not "granted" by the government, of course, but by "Nature and Nature's God." Governments can only protect them -- or violate them.)

Note that the Founders had no difficulty writing "the states" when they meant the states, as for example in the Tenth Amendment, which explicitly distinguishes between the states and the people:

I believe any fair-minded reading of the Second will lead a judge to agree that "the right of the people" in that amendment means the same as the exact, same phrase in the Fourth Amendment: an individual right held by each individual person. Thus, I believe that we can count on the four fair-minded judges, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, to vote to uphold the circus-court ruling finding the D.C. gun ban "unreasonable and unconstitutional."

I likewise believe, based upon their well-enunciated constitutional gestalt, that we can rely upon Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter to vote to restore the gun ban.

As usual, Justice Anthony Kennedy will be the National Enigma. But (be sure you're sitting down), I consider Justice John Paul Stevens to be a wild card... he might actually side with gun owners, basing his decision upon the second-amendment analysis of some liberal con-law professors, of which the most important are Lawrence Tribe and Alan Dershowitz, both of Harvard.

If I had to guess, I would expect that the Court would vote to confirm the decision of the D.C. Circus (overturning the Washington D.C. gun ban) by 6-3; I have a hard time believing that Justice Kennedy would vote against a position on such a controversial issue to which both Roberts and Stevens agreed.

On the political front, I'm not sure how much this will affect the presidential election. I disagree with Glenn Reynolds, who wrote:

This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.

It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders.

First, regardless of positions in the past, both Giuliani and Romney have rushed to get out in front of this case -- on the side of the angels. Rudy Giuliani:

Rudy Giuliani made the following statement today regarding the Supreme Court’s decision to review the Court of Appeals ruling in Parker v. District of Columbia:

"I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."

Mitt Romney:

Today, Governor Mitt Romney issued the following statement on the U.S. Supreme Court's decision to review District of Columbia v. Heller:

"It is my hope that the Supreme Court will reaffirm the individual right to keep and bear arms as enshrined in the Bill of Rights and protect law abiding gun owners everywhere. To further guard this fundamental liberty, as President, I will take care to appoint judges who will not legislate from the bench but will instead strictly interpret the Constitution."

Second, the great Democratic gun-control debate was in the 1990s... ancient history, as far as most voters are concerned. Except for some diehards in ultra-liberal districts or states (e.g., Sen. Chuck Schumer, D-NY, 100%), the Democrats have pretty much dropped gun control from their electoral lexicon...

Sen. Hillary Clinton (D-Carpetbag, 95%), who was a loud gun prohibitionist as recently as 1999-2000, nowadays barely mentions the topic. The closest I found was this April 2007 snippet:

"You have to balance the Second Amendment rights against keeping guns out of the hands of criminals and people who are unstable -- and that has always been what everyone I know has been seeking to accomplish," Senator Clinton said. "Maybe this tragic incident will get us to think about how to get back to that balance."

This hardly sounds like a response that would satisfy Rosie O'Donnell.

I like this piece, by the bye: The candidates were each interviewed a week after the Virginia Tech shootings; if ever there were a time to smoke out gun prohibitionists, that would have been it. Here is what Sen. Barack Obama (D-IL, 95%) said:

While Obama suggested there may be a need for restrictions on so-called semiautomatic guns, he contends Democrats must steer clear of alienating "lawful" gun owners. "I'm a strong believer in the rights of hunters and sportsmen to have firearms. I'm a believer in homeowners having a firearm to protect their home and their family," Obama said. "It's hard for me to find a rationale for having a 17-clip semiautomatic."

(I must confess puzzlement about Obama's 17-clip semiautomatic; I don't think I would buy one -- those "clips" must stick out like quills on a porcupine -- but I'd sure love to hold one in my hands... assuming I could find the grip hidden among the antenna-farm of clips.)

Finally, we have John Edwards; he mentions hunting but not self-defense... but he doesn't rule it out, either; he simply ignores that reason for owning a gun:

"I believe in the Second Amendment and I think it's important for hunters rights to be protected. It's part of my culture because of the way I grew up," Edwards said during a news conference Friday night in Des Moines. "But I don't think you need an AK-47 to hunt...There's some weapons that are not necessary for sportsmen and hunters."

(I'm sure that Rep. Dennis Kucinich, D-OH, 100%, Sen. Chris Dodd, D-CT, 95%, and Gov. Bill Richardson all favor heavy-handed gun control; but really, who cares? They're about as likely to be elected president as "Mother" Sheehan.)

Regardless of the actual beliefs of the Democratic front runners, and regardless of what they would really do if they got into office, none denies an individual Second-Amendment right to keep and bear arms; and Obama openly affirms it.

Thus, I just don't see this issue cutting significantly against the Democrats: Anybody who believes that they're secretly in favor of gun prohibition (as I believe) is almost certainly already in the GOP camp for 2008. So don't look for gun rights to tip the scales of the presidential race.

Nevertheless, if the case is adjudicated as I expect, it will be a stunning and wonderful day for civil liberties in America; and if it goes the opposite way, it will be a black mark we shall never live down. And even if there is no direct affect on the presidential race, the case should at least reopen the national conversation on individual rights vs. State power -- which should definitely benefit Republicans downticket.

Hatched by Dafydd on this day, November 21, 2007, at the time of 5:27 PM | Comments (6) | TrackBack

November 3, 2007

The "Flag-Burning Professor" - This May Surprise You

Drudge linked a provocative article from the Bangor Daily News today; the opening paragraph is certainly an attention grabber:

A University of Maine student alleges her former professor offered extra credit to class members if they burned the American flag or the U.S. Constitution or were arrested defending free speech.

On the first day of class, associate professor Paul Grosswiler offered the credit to members of his History of Mass Communications class, according to sophomore Rebekah McDade. Disturbed by the comment, McDade dropped the class and intends to take the course again next semester with a different professor.

Now, I must confess that I always begin reading such articles in a conflicted state of mind:

• I have a natural skepticism about extreme claims like this, stemming from the fact that I have a natural, inborn skepticism about, well, everything;
• I have learnt from bitter experience over the aeons that an awful lot of stories about acrid academia that are too insane to be true -- turn out to be true.

So I typically read in a state of trepidation, because whichever way it goes, one of my deep and cherished beliefs will be crushed. Usually I just shy away and pretend I read it, so I can impress people, but really just move my eyes back and forth and think about England.

But I actually read this one; and despite the fact that at least one other student, Kathleen Dame, possibly two (an unnamed "second student"), also say they think Prof. Grosswiler offered extra credit for such, I actually find I believe the professor himself instead:

In an e-mail responding to a request for comment from the Bangor Daily News on Friday, Grosswiler said he thought McDade misunderstood the class discussion, which was intended to elicit thought about the First Amendment. He said he has held this same discussion for years without incident.

"I don’t intend for students to burn either the Constitution or the flag, and over the years hundreds of students have understood that," Grosswiler wrote.

The thing is, I can easily see how a discussion could seem clear one way to Grosswiler and equally clear the opposite way to McDade and Dame... even in a fairly precise language like English, miscommunication is the norm, not the exception.

Suppose Grosswiler said something like this. I am just now making this up; this doesn't come from any transcript, and I have no idea what he actually said -- save only that I'm sure it was less persuasive and brilliant than my own fantasy lecture below. I only offer this monologue as an illuminating "f'rinstance":

Yes, I can easily picture it. Of course, Grosswiler wouldn't be as eloquent as I; on the other hand, he would know how to spell "commitment."

Such a speech might easily be misinterpreted by hysterical females (or by hysterical males, of course; I just like scandalizing the proto-feminists) as "I'll give you extra credit for burning the flag." But it would very likely also be true that no student has ever decided to burn the flag to get extra credit... or that maybe someone did, but Grosswiler thought it was completely insincere, and he denied the credit.

In any event, he is absolutely right that there was a whole freedom-of-speech crisis over flag burning, and the Supreme Court did resolve it by ruling that burning the flag was protected speech -- Texas v. Johnson, 491 U.S. 397 (1989); U.S. v. Eichman, 496 U.S. 310 (1990). And for once, I agree with the Court's expansion of liberties; I'm not one of those who believes that "speech" means only the verbal conveyance of ideas. The very fact, as argued by those supporting the anti-flag desecration constitutional amendment, that the American flag is a cherished national symbol means that burning it is a very effective way to demonstrate hatred of America -- or at least hatred of something the firebug thinks America is doing. There is almost no getting around the fact that this is a clear political message.

Of course, so is giving money to a political campaign; the Court disgraced itself when it upheld McCain-Feingold, the Bipartisan Campaign Reform Act of 2002. The decision was 5-4 on the most odious provisions, and goofy Justice Sandra Day O'Connor was in the majority, joining liberal Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and David Souter.

I strongly believe that if the case were decided under today's Court, with Justice Samuel Alito instead of Sandra Day O'Connor, the BCRA would be struck down. As evidence, look at the decision in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. (2007), where Chief Justice John Roberts' harsh opinion striking down some provisions of the BCRA (related to issue ads within 30 or 60 days of an election) and expressing contempt for campaign finance regulation was joined by Justice Alito. Alas, O'Connor was still on the Court in 2003, else we would live in a freer society.

(However, I would not go so far as to say everything, including stripping and lap dances, is protected speech, however; I would look at intent, how it's exercised, and whether others were allowed their own freedom of speech -- including the freedom not to listen to your speech. Thus, if you walk into a church during services and take off all your clothes to protest the Iraq war, I say you should be arrested: First, there is no rational connection between nudity and pacifism; second, you interfered with other people's liberties -- both freedom of religious worship, obviously, but also freedom of speech... which includes the freedom not to experience someone else's "speech.")

I appear to have wandered far afield, but it's a false apparition: What constitutes "speech" is at the very heart of this controversy. Judging solely from what I read in the Bangor Daily News article, I suspect this is more or less what Professor Grosswiler was trying to convey... albeit clumsily, since he's sure to be a liberal.

I don't think he was seriously encouraging college brats to go out and burn the flag or Constitution. I think McDade overreacted; a partisan group (The Leadership Institute, which I would probably join if I were the joining sort) seized the opportunity to make hay while the iron was hot; and a newspaper saw a chance for a sensational headline.

Ergo, I wanted to put my $58,712.16 worth in before the chorus of conservatives attacking poor Prof. Grosswiler became deafening.

Hatched by Dafydd on this day, November 3, 2007, at the time of 4:10 PM | Comments (6) | TrackBack

October 23, 2007

The Logic of Thug-Huggers

I've said many times that I agree with those who say "all human life has value."

No, really I do; all human life does have value: But sometimes, that "value" is a negative number. Take John B. Taylor, for instance... please:

Mr. Taylor was found guilty of first-degree murder and sentenced to death at his trial in Queens in 2000. He and an accomplice, Craig Godineaux, were found to have forced seven people into a walk-in freezer at the Wendy’s in Flushing, bound and gagged them, then placed them on their knees before shooting each in the head.

Two of the victims survived, and testified at Mr. Taylor’s trial. (Mr. Godineaux, who is mildly retarded, pleaded guilty to murder in the case and is serving a life sentence without parole.)

I have a hard time understanding why anybody would have a hard time understanding this verdict. There is no real dispute that Taylor did it; no new, exonerating evidence has emerged... and he isn't even a Mexican national, allowing his pending execution to be overturned on grounds that he had not been allowed to chat with President Felipe Calderón before being tried. And yet...

Closing a chapter on one of the bloodiest crimes in recent New York City history, the state’s highest court today tossed out the death sentence imposed on a man for his role in the murders of five workers at a Wendy’s restaurant in Queens seven years ago.

The man, John B. Taylor, was the last remaining inmate on New York State’s death row.

The divided decision by the Court of Appeals [4-3] not only ordered the trial court to resentence Mr. Taylor -- almost certainly to life in prison without parole -- but it also reaffirmed a landmark decision in 2004 that effectively invalidated the state’s death penalty law.

Now why, you may ask, was Taylor's death sentence overturned? What was the great legal, moral, or substantive principle that required the Court of Appeals -- which, oddly enough, is the highest court in the state, while the lower trial court is called "the Supreme Court of the State of New York" -- to invalidate Taylor's death sentence?

It turns out to be so clear that even a death-penalty advocate such as myself would be likely... nay, driven to acknowledge the essential injustice the court sought to prevent. (Note for the irony impaired; this is an ironical sentence: I say one thing but actually mean the opposite.) It has to do with an "anticipatory" instruction given the jury in capital cases:

Under current state law, if a jury cannot reach a unanimous verdict on the question of death, the trial judge is required to tell the panelists that a sentence, to include parole, will be automatically imposed. The Court of Appeals ruled in a split decision in 2004 that such jury instructions were unconstitutional, because they could coerce deadlocked jurors to vote for death out of a fear that a violent defendant might one day walk free.

It was out of deference to that case, People v. LaValle, that the court tossed out Mr. Taylor’s death sentence today, basing its decision largely on the principle of “stare decisis,” a Latin term meaning “let the decision stand.”

So let's get this straight:

1. The Court of Appeals originally decided in 2004, by another 4-3 decision, that New York's death penalty was unconstitutional because jurors were informed -- truthfully -- that in the event of a deadlock, the judge would have to impose a sentence that still included the possiblity of parole... which was not one of the two possibilities available to the jury (they could only consider either death or life without parole, "LWOP").

Thus, the court reasoned:

What, then, is the consequence of telling the jury that it may not impose a sentence of life with parole eligibility after 20 to 25 years, but that the court will impose that sentence if the jury cannot agree? The deadlock instruction interjects the fear that if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to society in the future. Yet, in New York a defendant's future dangerousness is not a statutory aggravator the jury may consider.

Clearly the intent of this instruction was to inhibit endless bickering on the part of the jury; the court argued that a juror might be pressured to "impose the death penalty on a defendant whom they believed did not deserve it simply because they fear that the defendant would not serve a life sentence." But wouldn't they be equally entitled to impose a sentence of LWOP?

There is no reason to presume such pressure would push one way any stronger or weaker than the other, as either decision would avoid the possibility of parole. The only pressure is for the jury to come to some decision -- not any particular decision.

This is why, I suspect, half the court dissented. Nevertheless, one of those dissenters, Judge Robert S. Smith, joined the majority today in tossing out the sentence of John Taylor. But why? Simple, and it brings us to the second prong of New York's right pranging:

2. Then today, the principle of "stare decisis" rose up and so overwhelmed Judge Smith that he affirmed the asinine decision he, himself dissented from three years ago and applied it to the decision today.

Thus is great nonsense perpetuated, and imprudent jurisprudence drives out the good. Is it really rational to toss out a state's death penalty because jurors are threatened with the defendant getting a lesser sentence -- if they can't agree on which of the two available harsher sentences to impose?

Stare decisis is the principle that previous judicial understandings of the law should not be lightly put aside, because there is virtue in having a predictable, stable rule of law. But it has never been an absolute prohibition -- else we would still be operating under Plessy v. Ferguson, which required “equal but separate accommodations for the white and colored races.”

Rather, stare decisis is just one factor a justice (in New York, "justices" on the Court of Appeals are called "judges") must weigh in deciding whether to overturn a precedent: But if the error is great enough, it must overcome the judicial inertia imposed by stare decisis. And in this case, I think the original LaValle decision was so stupid and contrary to the will of the state legislature that, at the very least, those who dissented in LaValle itself should also have dissented here.

I'm quite sure that the four judges who imposed the LaValle decision on the state -- and then extended it to strike down the entire death penalty -- were legislating from the bench. All but one of the majority judges in LaValle were appointed by Gov. Cuomo, while all of the dissenters were appointed by Gov. Pataki; and restoration of the death penalty was a major issue in the 1994 campaign of Pataki against Cuomo, probably a major reason Pataki was elected.

(The lone exception was Judge Albert Rosenblatt, who concurred with the majority; he was appointed in 1998 by Pataki. Rosenblatt was viewed as a "moderate" even by the New York Times, which praised his selection in an editorial -- contrasting Rosenblatt with the "blindly pro-prosecution judges" Pataki appointed in his first term... not a very good sign, in my opinion.)

Since 2004, Judge Rosenblatt retired and was replaced by another Pataki appointee: Eugene F. Pigott. Since today's ruling was also 4-3, despite the defection of Judge Smith, that must mean that Judge Pigott dissented, holding that Taylor's death sentence was valid.

Thus, because of one judge's fetishistic love of stare decisis -- believing it even applies to rulings he considers incorrect -- New York blew a perfect opportunity to revisit the mistake of LaValle itself. As Judge Smith admits in his concurring opinion in the Taylor case:

I thought, and still think, that LaValle was wrong in holding the redesign to be required, but the harm done by the error does not justify casting stare decisis aside.

Color me disrespectful of the past and of bad precedent, but I strongly dissent from Judge Smith's opinion -- joining three of the seven judges, who also dissent.

The will of the people of the state of New York was cast down and stamped upon by the Court of Appeals in People v. LaValle... and the pieces were just spat upon today in People v. John Taylor. Feh.

Hatched by Dafydd on this day, October 23, 2007, at the time of 7:03 PM | Comments (2) | TrackBack

October 21, 2007

More Questions I'd Like Lawyers to Analyze: Diversity 101

Here is another one of my fantasy hypthotheical questions designed to educate readers -- including this writer -- about the intricacies of the law; and again, I honestly don't have a sodding clue what the answer should be (I'm not a lawyer, but I sometimes play sea-lawyer on this blog). Please, I would appreciate it if those regular readers of ours who stand accused of being lawyers (Beldar, the Power Liners, Clarence Thomas, Patterico, etc), particularly those versed in constitutional law, would essay an answer...

You are sitting on the Supreme Court, and a case comes before you where Professor Rigoberto Uhuru is suing a university because she was rejected for a position on a campus faculty in favor of another candidate, Professor Guy "Whizzer" White. Uhuru is a self-proclaimed liberal, White is a self-proclaimed conservative (I warned you it was a fantasy hypothetical!) Professor Uhuru is unquestionably better qualified than Professor White by all objective, measurable criteria; and the University of Upper Iquana admits in discovery that Uhuru did better in the interview than White.

UUI also admits that the reason the less-qualified White was selected was that the faculty is, the administration says, "95% liberal;" and the Faculty Senate complained that there was insufficient ideological diversity. There is no evidence of any previous administration specifically favoring liberals over conservatives; it just happened to work out that way.

The administration secretly decided to consider only conservatives, specifically in order to remedy that perceived imbalance; they also interviewed liberals such as Uhuru to make it less obvious what they were doing, but never had any intention of offering her the job, once they read her blog a week before her interview.

Finally, to really bollox things up, despite the claim that the faculty is "95% liberal," in fact, 40% of the faculty are registered Republicans.

(Assume Uhuru had a great lawyer, and she sued on every imaginable criterion of discrimination, breach of contract, or mopery with intent to gawk; so if she would have an actionable case under any claim, you can rule in her favor if you want and order any appropriate relief or compensation.)

So here are the questions:

1. Does current caselaw allow discrimination against a candidate for employment on grounds of diversity of ideology if UUI is a public university? How about if UUI is a private university?
2. Should the Court overturn current caselaw, whichever way it currently stands?
3. If such discrimination is unconstitutional or illegal, what remedy should the Court order?

No books, notes, or calculators will be allowed in the classroom during this exam; the proctor will disappear immediately after the exam begins to get a pedicure, so you're all on your honor.

Hatched by Dafydd on this day, October 21, 2007, at the time of 3:52 PM | Comments (12) | TrackBack

August 25, 2007

How Dare the Dictator Spy on Radical Mosques!

This could get interesting (and potentially ugly): An imam and a pizzeria owner were convicted of supporting terrorism... and they're now appealing, claiming the National Security Agency's Terrorist Surveillance Program violated their constitutional rights.

First, just the facts, ma'am:

After a bloody raid by American military forces on an enemy camp in Rawah, Iraq, on June 11, 2003, a Defense Department report took inventory. Eighty suspected terrorists killed. An enormous weapons cache recovered. And, in what the report called “pocket litter,” a notebook with the name and phone number of the imam of a mosque halfway around the world, here in the state capital.

Prompted by that notebook and records of 14 phone calls between the imam, Yassin M. Aref, and Damascus, Syria, the Federal Bureau of Investigation quickly began a sting operation aimed at Mr. Aref. Federal agents used an informant with a long history of fraud who spun tales to Mr. Aref about a fictitious plot involving shoulder-launched missiles and the assassination of Pakistani diplomat in New York.

Mr. Aref and a friend who owned a pizzeria were convicted of supporting terrorism by agreeing to help launder money for the fake operation, and in March the two men were sentenced to 15 years in prison.

What makes the case unusual is that Aref may have been under surveillance by the National Security Agency, possibly under the TSP. There are two external indicators of this:

• An exchange during the trial over an FBI agent who was on the stand. One of Aref's defense attorneys (who is paying for the high-powered legal defense?) asked Special Agent Timothy Coll whether Aref had been under "24-hour surveillance." The lead prosecutor, Assistant U.S. Attorney William C. Pericak, objected, saying "I’m concerned that a truthful answer should implicate classified information."

  The defense lawyer rephrased the question to ask only whether Aref had been under 24-hour physical surveillance, and Coll quickly answered No. I'm not sure how Coll interpreted the phrase "physical surveillance," or even whether that is a term of art; but the implication is certainly that Aref was under 24-hour non-physical surveillance, which may mean a phone tap, which in turn may mean the TSP.

• At one point during the trial, the defense lawyers asked the judge to require the federal government to produce information about the TSP. The government (the Times is unclear what branch or division, or whether it came through Pericak) responded with a brief that was itself classified. The defense attorneys were not allowed to see the prosecutor's filing, even though they had "security clearances" (again, no indication how high); and Judge Thomas J. McAvoy subsequently denied the defense motion -- with his entire decision classified and unavailable to the defense attorneys.

Neither of these is as definitive as the Times appears to believe. It's possible, for example, that Aref did have his phone calls intercepted... but it may have been by the FBI after receiving a warrant from the Foreign Intelligence Surveillance Court (FISC). In such a case, the warrant would be classified, and the FBI agent hesitant to answer a question about the surveillance without it first being formally declassified.

And it's entirely possible that the government's response to the request for TSP information could have been that Aref was under surveillance pursuant to a FISA warrant, not the TSP; but that the information requested was nevertheless highly classified and could not be revealed or even discussed. This is an alternative reason why the judge's order itself could be classified, as well.

Note that the Times article nowhere says or even suggests that evidence from telephone intercepts (by the NSA or anyone else) was actually presented at trial, heard or seen by the jury, or even that the prosecutor attempted to introduce such evidence and was rebuffed. The main pieces of evidence against the defendants were the recordings of their conversations with the "informant with a long history of fraud" during the sting. (Was the writer's insertion of "long history of fraud" intended to lure readers into believing that the case, despite the guilty verdicts, was fraudulent?)

There is one other indicator, though it's rather vague. According to the Times' unsupported word, unnamed "officials" told them there was a connection:

The wiretapping program was disclosed by The New York Times in December 2005. The next month, The Times reported that officials had cited the arrests of Mr. Aref and the pizzeria owner, Mohammed M. Hossain, as one of the relatively rare instances in which domestic surveillance by the N.S.A. had played a role in a criminal case.

The Times explicitly identifies the TSP program in the first sentence of the paragraph quoted above (the program "disclosed by The New York Times"). But in the next sentence, they slip on their cloak of vagueness, invoking only "domestic surveillance by the N.S.A." Since we know the NSA was running multiple intelligence-gathering programs at the time, there is no way to be sure which one "officials" were citing -- if indeed the conversation ever occurred at all, and assuming it wasn't one of those non-confirmation confirmations, à la the "re-reporting" of the Beauchamp story by the New Republic.

It's possible that Aref was surveilled under the TSP; after finding the notebook in the Rawah raid that put the feds onto Aref, the NSA might have begun intercepting his international telephone calls, to see who he was contacting. Even so, I'm still not sure how this would become a critical factor in the trial:

• We already know how the feds got Aref's name, and it had nothing to do with the TSP;
• Armed with that name, it would have been simple for the FBI to get a warrant from the FISC;
• Aref was neither convicted nor even charged with committing a terrorist act abroad, or acting in concert with any known foreign terrorist, in which an NSA telephone intercept under the TSP would play a role;
• The Times doesn't say what Aref and pizzeria owner Mohammed M. Hossain were actually convicted of, but I presume it was conspiracy to support an act of terrorism, with the third "conspirator" actually being an FBI informant, Shahed Hussain, who was wired for sound. Again, nothing to do with the TSP.

Nevertheless, the defendants' attorneys have seized upon the TSP as a last-ditch effort to avoid a stretch in the pokey for their clients... and the New York Times sees the challenge as an opportunity to get a federal circus court to rule the entire surveillance program unconstitutional:

But their case seems far from over, and it has become a centerpiece in the effort to challenge one of the Bush administration’s signature espionage programs.

Lawyers for Mr. Aref say they have proof that he was subjected to illegal surveillance by the National Security Agency, pointing to a classified order from the trial judge, unusual testimony from an F.B.I. agent and court documents concerning the calls to Syria.

If they are right, the case may represent the best chance for an appellate ruling about the legality of the N.S.A. program, which monitored the international communications of people in the United States without court approval. Unlike earlier and pending appeals disputing the program, all of them in civil cases, Mr. Aref’s challenge can draw on the constitutional protections available to criminal defendants.

The Times -- and presumably the entire panoply of leftist law professors, activists, and their elite-media lapdogs who have ached for a chance to take Bush down over this -- seems most enraged by the fact that civil-court attempts to ban the TSP and other intelligence-gathering operations have run into the brick wall of "standing," thwarting the valiant efforts of the heroic anointed: Unenlightened courts keep holding that the plaintiffs cannot show that they, personally, were subjected in any way to the TSP, and therefore have no standing to sue.

To the Times, via a surrogate interviewee, this constitutes an unfair legal technicality:

In the civil cases, appeals courts have confronted significant threshold questions, including whether the plaintiffs have standing to sue.

“There are dodges available in civil cases that just aren’t available in criminal cases,” said Corey Stoughton, a lawyer with the New York Civil Liberties Union, which has filed supporting briefs in the case. “This case might be able to put this issue to the test.”

I can't shake the feeling that to the Times, the Aref-Hossain case is the Left's best chance to finish the world-saving job that the Times began when it disclosed the program; that is, I believe that the Times saw its role as shining the light of day on a horrific violation of the constitution... a revelation that would allow activists and law professors to finally shut down all these thuggish, unnecessary, police-state infringements of our sacred constitutional right to support anti-American, anti-Western, anti-Jew, and especially anti-Bush terrorists.

The fate of Yassin Aref and Mohammed Hossain themselves is an inconsequential side issue.

It appears to me that these defendants are being treated much the way the Left treated "Jane Roe," who never did get her abortion... for which the real-life Norma Leah McCorvey, now an anti-abortion activist, is very thankful. Once McCorvey served her purpose, the attorneys in that case dropped her like a squalling newborn.

I cannot help but believe that the elite media could not care less whether Aref and Hossain end up serving their 15 years, just as they never cared whether McCorvey got her abortion, what happened to her, and what she later came to believe; all of that is irrelevant -- what matters is the ideological struggle, and the real defendants are the American people, who are clamoring for terrorist suspects to be given full rights to treat the American justice system the way Lindsay Lohan, Paris Hilton, and O.J. Simpson have.

Having already Simpsonized the civil and civilian criminal courts (for those with money, or connections to activist organizations that have money), now the elites want to Simpsonize national security and terrorist surveillance and interdiction.

The Times would stamp out every post-9/11 surveillance and intelligence program implemented by the Bush administration, without regard to what that will do to national security; if we get hit with another 9/11, it's a small price to pay for humbling Bush (can't make an omlet without breaking a few legs). Besides, saying that Bush has made America into a police state should certainly help Democrats in 2008.

Any surveillance or intelligence gathering at all -- even when it's driven by such simple and clear-cut evidence as the subject's name and phone number found in a notebook during a terrorist raid in Iraq -- is tyranny and oppression. Another one of the unrebutted New York Times interviewees, one of the lawyers for Aref, expressed it best, I think:

Terence L. Kindlon, a lawyer for Mr. Aref, saw the matter differently.

“The F.B.I. case was a hoax that grew out of the Bush administration’s misuse of fear to turn our democracy into a dictatorship,” Mr. Kindlon said.

I never realized I lived in a dictatorship. First they came for the terrorists...

I eagerly await the day when the jackboot will be thrown into the melting pot, and the fascist octopus will sing its swan song (hat tip to George Orwell). Journalists of the world unite behind radical Islamism! You have nothing to lose but your independence, your freedom, and your heads.

Hatched by Dafydd on this day, August 25, 2007, at the time of 3:48 PM | Comments (3) | TrackBack

June 4, 2007

What's In a Label? Everything, It Would Seem

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant":

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays. [The original law was thrown out by the Supreme Court's Hamdan decision, but not because of any irregularities in the definition of "enemy combatant" or the operation of the status-review tribunals -- the Mgt.]

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

And why didn't they label Khadr an "unlawful enemy combatant?" Because the term wasn't available as a separate category under the original law.

However, the status-review tribunals used the same criteria for the designation of "enemy combatant" as they would now use for the designation "unlawful enemy combatant." The term has changed, but the definition is the same:

The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier -- and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifiies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

All 80 of the detainees who are slated for military tribunals have that same label; thus, military judges will almost certainly dismiss all the other cases as well on the same grounds. They won't even bother to hear any evidence -- as they did not in the Khadr case: They will simply declare they have no jurisdiction and dismiss the charges.

The chief defense attorney, Col. Sullivan, goes far beyond his duty to defend his clients; he says that this decision proves the entire system of military tribunals is "a system of justice that does not comport with American values" and that we should scrap the entire thing. If by "American values," he means really recent ones where decisions turned on "what the meaning of 'is' is," maybe he's right; if so, then the military too has lost its moral compass (as we already knew about the State Department and its ugly offspring, the CIA).

Here is the situation, from what I can determine:

1. Under the recently enacted law, prisoners can only be tried at military tribunals if they are declared by a status-review tribunal to be "unlawful enemy combatants;"
2. The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;
3. The earlier status-review tribunal determined that 80 of the 380 prisoners at Gitmo statisfied criteria A, B, C, and D; the other 300 or so did not;
4. But they used the term "enemy combatant" for those 80 prisoners, per the law they operated under, rather than "unlawful enemy combatant." The current law had not yet been written, and the status-review tribunals had no crystal ball: They did not realize they would have to have used a different term, after the original law was thrown out and rewritten by Congress;
5. ...Therefore, all the cases must be dismissed for lack of jurisdiction!

This is a perfect example of mistaking the map for the territory; it's like sitting down in a fancy restaurant -- and devouring the menu! The label itself is irrelevant; you can call them "sunshine needlepoint combatants," so long as you require the same criteria as for "unlawful enemy combatants."

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The idea is that, if someone doesn't know a hearing can result in him having to stand trial, he might not put up a vigorous defense; thus, he might be tricked into allowing himself to be (more or less) "indicted" without a fight. But for God's sake, everybody knew that was the purpose of the status-review hearings. Everybody. Both the detainees and their military lawyers knew. The tribunal itself knew. Even the media knew. Nobody was caught by surprise here.

Here's the analogy:

This is a perfect example of why normal people hate and despise trial lawyers as a class.

I have a thought. I realize this may be somewhat radical, even crazy, but...

The status-review tribunals almost certainly used, as their standard, the very criteria now required for "unlawful enemy combatants" -- that was, after all, the entire purpose of the status-review tribunals; and the fact that they only applied the "enemy combatant" label to 20% of the prisoners makes clear it was a pretty strict standard.

So why doesn't -- now don't come after me with pitchforks and torches! -- why doesn't President Bush, as Commander in Chief, simply direct the tribunals to look at the casefiles of each of the 80 prisoners determined to be "enemy combatants," check to see that the standards required for that designation match those required for the new designation of "unlawful enemy combatant," and then just change the stupid label?

Problem solved? Oh, no, of course not; it would have to go back to the Supreme Court, wouldn't it? After all, the burning question we face anent these men is what label was used -- not what criteria were used for that label.

I'm starting to agree with Chief Defense Attorney Sullivan (a colonel in the United States Marine Corps, sadly): "[this ruling is] the latest demonstration that this newest system just does not work." Evidently, not even the military itself can put terrorists on trial without getting tangled in absurdist definitions and technicalities that have no relevance to the actual charges... or to fighting terrorism and defending the United States.

Hatched by Dafydd on this day, June 4, 2007, at the time of 2:08 PM | Comments (6) | TrackBack

May 29, 2007

...And Subject to the Jurisdiction...

I am not -- as I have repeatedly reminded readers -- a lawyer; I am admitted before no bar, have no law degree, have never attended a single class at any law school in the world. Yet here I go, offering my utterly uninformed and worthless opinion on the law... on a constitutional issue, no less!

This, friends, is a perfect example of chutzpah.

I've read a lot of commentary in the last few weeks, some by attorneys, that argued that children born in America of illegal immigrants need not automatically be considered American citizens themselves. Sen. Jon Kyl (R-AZ, 92%) just brought up the argument on the Michael Medved radio show, saying it might fly in the Supreme Court (if so, then to quote the Bumble, "the law is a ass"). Proponents of this resolution hang their entire argument on one particular clause of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

Proponents cite the example that children born on American soil whose parents are foreign ambassadors here are not American citizens by birth. All right, bearing in mind I haven't a clue what I'm talking about, nevertheless, I see a huge, whopping distinction that nullifies the entire argument (in my ignorant opinion).

An accredited diplomat stationed or visiting here is literally not "subject to the jurisdiction" of our laws; they have what we all know as "diplomatic immunity": If a diplomat breaks the law here, except in the most extraordinary circumstances, we cannot arrest him, indict him, try him, or punish him. An ambassador to the U.N. could rob a liquor store, drive drunk, and crash into a day-care center, and the cops could not even bust him; the most we can do is expel him from the country.

And I think this immunity applies to the diplomat's immediate family, as well: If the official has immunity, so do the spouse and children, I believe.

In fact, I would be astonished if this were not precisely what the framers of the amendment had in mind by that limiting clause: They did not want our Constitution declaring the children of ambassadors and other diplomats to be American citizens.

But there is no such thing as "illegal immigrant immunity." If an illegal is caught committing a crime here, he can be arrested, tried, convicted, and incarcerated, or even executed, if the crime warrants. In fact, there are at least two hundred thousand illegal aliens in prison this very moment for crimes other than simply being here illegally.

In other words, resident aliens -- even illegally resident aliens -- are absolutely subject to the jurisdiction of the United States. They must obey our laws; and if they don't, they are subject to trial and punishment.

Perhaps some lawyer can set me straight about this, explaining why an illegal Guatemalan criminal gang member has the same sort of immunity as the ambassadors of Poland, Pakistan, and Monaco.

Because from the admittedly valueless viewpoint of a well-read layman, it doesn't look the same to me at all.

Hatched by Dafydd on this day, May 29, 2007, at the time of 1:29 PM | Comments (19) | TrackBack

April 18, 2007

Striking a Blow for Civilization

As many of you know -- though for others, it will be a killer shock that will send you reeling away, screaming dark imprecations at me, never to return to Big Lizards, halving out readership, and destroying the entire franchise... huh, maybe I shouldn't tell you!

Oh heck. Full disclosure, blah.

As many of you know, both lizards are somewhat pro-abortion-rights, albeit Sachi much more reluctantly than Dafydd. So I thought you might appreciate the thoughts of admittedly pro-abortion-rights commentators on today's excellent Supreme Court decision upholding the federal ban on the most gruesome and barbaric "medical" procedure allowed (until today) in contemporary America.

The cases decided in one decision today are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

Shades of grey

First, let me clarify where my abortion tolerance begins and where it ends. It is impossible to hold any position at all on abortion without first holding a position on when, not human life, but human personhood begins. Some folks may not even recognize that they have such a position, but they do; they're just remarkably unself-aware.

1. Some believe human personhood begins at the moment of conception. Thus, any clump of cells that will develop into a human being, if left to prevailing natural processes, is necessarily a human person at all points of that process... right from the very beginning.
2. Others believe that, while a human zygote (a fertilized human egg) is unquestionably the first stage of a human being, it does not become a human person -- with attendant rights, duties, and protections -- until later in the process. They point to the immense structural differences between a zygote, an embryo, a foetus, and a late-term foetus and argue that personhood depends upon some element of that pre-natal development.

What follows is just my personal belief and isn't part of the mainline argument of this post; I'll indent it, and you can skip ahead without losing the thread.

All right, back to today's Court decision upholding the ban on partial-birth abortions.

Lovecraftian horror

I refuse to use the deliberately obscurantist medical circumlocuation, "intact dilation and extraction," the very purpose of which is to conceal what is actually done. A person would have no idea from this title that after dilating the cervix and extracting the body of the baby, the real work begins. I'll let Wikipedia describe what happens next, in their (generally supportive) article on the subject:

An incision is made at the base of the skull and a suction catheter is inserted into the cut. The brain tissue is removed, which causes the skull to collapse and allows the fetus to pass more easily through the birth canal. The placenta is removed and the uterine wall is vacuum aspirated using a suction curette.

All this while everything except for the head is dangling outside of the mother's birth canal. So I think "partial-birth abortion" is the most vivid and accurate name for the horrific procedure.

Solomonic

Obviously, since I completely oppose late-term abortions (after cortical activation), I cannot help but applaud a Court decision that bans one form of late-term abortion, albeit a rare one. But many partial-birth abortions are performed earlier in the pregnancy, at a time when I do not categorially oppose abortion. So why do I oppose partial-birth abortions, even in the second trimester?

For me, this is the tipping point: Suppose the doctor slipped up and allowed the head to emerge as well -- but then continued with the "abortion" anyway: He just went ahead with the incision and the suction catheter and removing the brain tissue of a "foetus" that was actually lying in the mother's lap. What would happen then?

I believe he would be arrested and tried for murder... with special circumstances. The doctor would have delivered a live baby -- and calmly killed it in full view of its mother. At an absolute minimum, it should be considered "depraved indifference to human life;" but I think murder charges would be filed. The DA would call it infanticide, and nearly everybody in the country would agree.

The distinction between infanticide and legal abortion cannot be four inches movement down a tube.

For me (see above), the second trimester is a grey area: the foetus has some distinctly "baby-like" features, while other features (mostly in the higher brain) are not well developed. It's not yet a person, but it's getting somewhat close. Similarly, at the very end of life, a person can lose so much of what makes him a person that decisions about life and death similarly become murky: I support withdrawing life support under some circumstances; but I totally opposed starving Terry Schiavo to death -- and I still believe it was immoral, despite clear post-mortem evidence that Schiavo was not aware enough to notice.

A lot can tip the scales when in the grey zone. And one very strong distinction to me is between a baby that is born and a foetus that is still in the womb.

By the very act of inducing labor and allowing it to proceed virtually to the point of birth, the doctor has tipped the scales from allowable abortion to criminal infanticide. The foetus has become an independent baby... at least as far as this one abortion-rights supporter believes.

As bad as the more common form of second-trimester abortion is, it does not even begin to approach the Nazi-like, nausea-inducing horror of partial-birth abortion. (In dilation and evacuation, the foetus is killed and dismembered inside the womb, then the individual pieces are extracted.) D & E is itself pretty gruesome to contemplate; but there is no point at which the dependent foetus becomes, for all intents and purposes, an independent, delivered baby.

The road not taken

Finally, there is the question of precedent. Both Sens. Hillary Clinton (D-Carpetbag, 95%) and Barack Obama (D-IL, 95%) make a big to-do about the "departure" from Supreme Court precedent of this ruling:

Clinton:

This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman's right to choose and recognized the importance of women's health.

Obama:

I strongly disagree with today's Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women.

To which I reply -- so what? Even if it's true that Gonzales v. Carhart/Planned Parenthood "departs" from precedent -- which claim itself is questionable -- why should we care? The Court is not bound by any previous court rulings... not even its own.

It has the power to overturn itself, as it has many times in the past; for example, when Plessy v. Ferguson, 163 U.S. 537 (1896), upholding "separate but equal" racial segregation in the public schools, was overturned 58 years later in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Does any respectable lawyer, Democrat or Republican, complain that Brown didn't follow the racist precedent of Plessy?

For that matter, did Hillary Clinton object when the Court decided Roe v. Wade, 410 U.S. 113 (1973) -- thus overturning 170 years of Supreme Court precedent? Since the beginning of the very idea that the Court could overturn federal laws (Marbury v. Madison, 5 U.S. 137 in 1803), no United States Supreme Court had ever found a constitutional right to an abortion.

It doesn't even follow the precedent of Griswold v. Connecticut, 381 U.S. 479, 1965, as the Roe decision claimed; since the "right of privacy" doesn't have any obvious connection that I can see to the right to kill a foetus.

In 1973, the year of Roe v. Wade, Hillary Rodham was a newly minted attorney -- though I'm not sure she was yet an attorney at law. So she must have been fascinated by that Court decision. Yet I will eat a bug if anyone can find a Hillary Clinton quotation complaining that Roe v. Wade "marks a dramatic departure" from Supreme Court precedent.

(In 1973, Barack Obama was 12 years old, so I don't hold him to the same standard. But surely he studied Roe v. Wade at Harvard Law in the late 80s. If he ever objected to Roe because it "dramatically departs from previous precedents," it certainly hasn't come to my attention.)

Thus, the entire argument against today's decision, that it violates precedent, is nothing but a shibboleth: It's an infallible guide to those who vehemently oppose Gonzales vs. Carhart/Planned Parenthood. It is an ersatz argument that needn't be further addressed.

Ergo

So yes, I absolutely and enthusiastically applaud this Court decision, in which we managed to hold onto Justice Anthony Kennedy (who wrote the decision) and the four conservative members -- Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. It's the best news to come out of the Court since they prevented Al Gore from suing his way into the White House.

I rarely say this, but... three cheers for Anthony Kennedy!

Hatched by Dafydd on this day, April 18, 2007, at the time of 4:35 PM | Comments (34) | TrackBack

March 9, 2007

D.C. Circus Overturns D.C. Gun Ban - UPDATED

UPDATE: See below.

A three-judge panel of the D.C. Circuit Court of Appeals has just overturned the longstanding (since 1976) ban on private gun ownership in the District of Columbia, and has also overturned the requirement that even those guns allowed must be kept in a partially disassembled condition locked in a safe.

The ruling was 2-1; the majority opinion appears to have been written by Reagan-appointee (1985) Judge Laurence Hirsch Silberman; the dissenting vote was by Karen LeCraft Henderson, a Reagan-appointee as a district judge, 1986, and a George Herbert Walker Bush-appointee to the circuit court in 1990.

UPDATE: The third judge is Thomas Beall Griffith, appointed by George W. Bush and confirmed by the Senate in 2005; and the opinion is here (hat tip to Blake Dvorak on Real Clear Politics).

The Associated Press characterizes the majority and dissenting opinions thus:

In a 2-1 decision, the judges held that the activities protected by the Second Amendment "are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia...."

"The district's definition of the militia is just too narrow," Judge Laurence Silberman wrote for the majority Friday. "There are too many instances of 'bear arms' indicating private use to conclude that the drafters intended only a military sense."

Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state.

That last argument -- if that's really what she said -- is preposterous, since that would open the floodgates to deny incorporation within D.C. of a host of other rights guaranteed by the first ten amendments to the Constitution... including freedom of speech, freeedom of religion, the right to be free of unreasonable searches and seizures, and so forth. I can't imagine the Court taking that tack; but I can very much imagine AP mischaracterizing the core of Judge Henderson's dissent: She might have written something much more intelligent.

The New York Times truculently complains about this decision, as --

Most federal appeals courts have said that the amendment, read as a whole [by which they mean only reading the subordinate, dependent clause -- the Mgt.], protects only a collective right of the states to maintain militias -- in modern terms, the National Guard. But in yesterday’s decision, the majority focused on the second clause [that would be the actual subject-verb-predicate of the sentence -- the Mgt.], saying that the amendment broadly protects the rights of individuals to own guns -- an approach that has been embraced by the Justice Department and by some constitutional scholars ["some" meaning in this case "virtually all" -- the Mgt.].

It may be true that "most federal appeals courts" think the Second Amendment protects the rights only of members of the National Guard; but if so, that's because most federal appeals courts have racked up a dismal record comprehending the only Supreme Court case to address the issue: U.S. v. Miller, 307 U.S. 174 (1939).

In Miller, the Court held that the Second Amendment's purpose was to ensure that we would always have a ready supply of trained and armed citizens to be called up as the militia. They ruled, therefore, that the amendment only applied to the kind of weapons ordinarily in use by individual soldiers in armies and militias.

Jack Miller, suspected of robbing banks, was arrested under the National Firearms Act of 1934 for transporting a short-barrelled (or sawed-off) shotgun across state lines without having purchased a special stamp from the government. He defended himself on Second Amendment grounds and usurpation of state police powers, claiming the NFA was unconstitutional; the judge agreed and struck down the law.

The United States attorney appealed to the Supreme Court, which reversed and remanded the case back to the district court for further proceedings (which never took place). The Court issued three substantive holdings:

• That the Act was a federal revenue act, therefore within the jurisdiction of Congress;
• That the Second Amendment only protected the keeping and bearing of military-style weapons;
• And that short-barrelled shotguns did not qualify.

(The prosecution actually argued that Miller did not qualify for Second Amendment protection because he was not a member of any organized militia, but the Court considered and rejected this argument. Instead, they wrote a lengthy analysis showing that "the militia" consisted of all military-aged men -- which refutes the misunderstanding that Miller restricted gun rights to members of the National Guard.)

The finding about short-barrelled shotguns was simply wrong; such guns are widely in use in military units today (including ours) and have been since long before Miller. Alas, Miller failed to show up at his Supreme Court hearing, having inconviently been murdered in prison; his attorneys also failed to show up, their case being moot. (The co-defendant, Frank Layton, also didn't show up; but I'm not sure why.)

Thus, no defense argument was made. Had there been one, they could easily have demonstrated that both machine guns and short-barrelled shotguns were in widespread military use, and (one presumes) the district-court decision would have been upheld.

Since then, appellate court after appellate court has wrongly -- and I believe deliberately and with malice aforethought -- misinterpreted Miller as having claimed that only the gun rights of members of the militia were protected... and also that "the militia" consists of the National Guard.

If today's Court holds to the precedent of Miller, they must rule that the right to possess a pistol, which is certainly part of the ordinary accoutrements of ordinary soldiers in modern armies and militias, is undeniably protected by the Second Amendment; and that this right inheres in all individual persons, not just those in the National Guard.

The Court must reach the same conclusion textually if they examine the very words: the phrase "the right of the people" is never used in any other part of the Constitution to mean "the right of the states," but always as an individual right enjoyed by each individual person, subject to reasonable restrictions (for example, you can prevent convicted felons and the dangerously insane from possessing guns, just as you can restrict their liberties in other ways).

But if the Court holds that the D.C. law is unconstutional, it would also mean that the decades-long federal prohibition against possession of sawed-off shotguns and of machine guns is likewise unconstitutional. I will listen eagerly for the weeping and the wailing and the gnashing of liberal teeth if the Court is bold enough to carry this decision to its logical end.

In fact, the same decision should also toss out all state or federal laws prohibiting concealed carry, except in extraordinary circumstances, such as in a court room or other governmental building. Concealed carry is much less disruptive to civil life, and I prefer it.

This is a very good case to finally have it out in the Supreme Court; and this is a very good Court to resolve such a case. I don't know how Justice Sandra Day O'Connor ruled on gun-rights cases, but I wouldn't be surprised if Justice Samuel Alito were more open to the constitutional argument. Justice Antonin Scalia may not like people owning or carrying guns; I have no idea. But he certainly believes in following the actual words of the Constitution; same with Justices Clarence Thomas, Alito, and Chief Justice John Roberts.

I'm pretty sure that the usual suspects would vote to overturn the D.C. Circuit: Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. As usual, the swing vote would be Justice Anthony Kennedy. (Power Line and Patterico know much more about such matters than I; I hope they will comment.)

There is no reason that "reasonable restrictions" could not include demonstrated proficiency with whatever general class of weapon you possess (not of each and every possible model within the broad category; that would be quite unreasonable). Thus, a person should be able to "qualify" with a pistol, a rifle, or even a select-fire weapon capable of firing continuous rounds with a single trigger-pull (a machine gun). Thereafter, the qualifying person could not be prosecuted simply for possessing or carrying such a weapon -- though carrying a gun openly could still be prohibited as "brandishing" or "threatening."

But I long to see a final resolution of this long-term legal controversy. More than anything else, the right to keep and bear arms is a hallmark of a free people... and I want to know whether we Americans are still free.

Hatched by Dafydd on this day, March 9, 2007, at the time of 6:09 PM | Comments (9) | TrackBack

February 15, 2007

Parsing Pelosi

Here is today's lesson in political rhetoric. Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 100%) is quoted by MyWay News as making the following constitutional analysis in an interview "down the hall from the House chamber":

House Speaker Nancy Pelosi said Thursday that President Bush lacks the authority to invade Iran without specific approval from Congress, a fresh challenge to the commander in chief on the eve of a symbolic vote critical of his troop buildup in Iraq.

Pelosi, D-Calif., noted that Bush consistently said he supports a diplomatic resolution to differences with Iran "and I take him at his word."

At the same time, she said, "I do believe that Congress should assert itself, though, and make it very clear that there is no previous authority for the president, any president, to go into Iran."

All right... but what does "go into Iran" mean? It's certainly not a legal term, and neither is "invade," the characterization used by MyWay: We say "you're invading my space" and "the Mexican invasion" to mean actions other than a literal army invading enemy territory.

Several interesting points about Ms. Pelosi's maunderings:

• Of course President Bush -- and President Clinton, and every other president past and yet to come -- has the "authority" to order our military to "invade" another country without prior congressional approval; we know this because a great many of them have done so without being impeached or losing any court fights over it.

The speaker ought to do some reading instead. The 1973 War Powers Resolution addresses the very question she pronounces upon:

The War Powers Resolution (P.L. 93-148) was passed over the veto of President Nixon on November 7, 1973, to provide procedures for Congress and the President to participate in decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1) requires the President to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted, or is required to be submitted, section 5(b) requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period. Section 3 requires that the "President in every possible instance shall consult with Congress before introducing" U.S. Armed Forces into hostilities or imminent hostilities.

Thus, even if the War Powers Resolution is itself constitutional, the president can do pretty much anything he wants without congressional approval, so long as he reports to Congress within 60 days and so long as he is finished within 90 days. (It's unclear -- I doubt it has ever been tested in court, as much of the War Powers Resolution has not -- whether the president can continue for 60-90 days if Congress explicitly votes against a particular military action within that timeframe... presumably overriding the president's veto.)

And of course, if the War Powers Resolution is held by the Court to be unconstitutional, then there is no legal limitation at all on the power of the president to send troops into any hostilities he chooses.

• Speaker Pelosi is remarkably selective in her pacifist outrage.

She was first elected in 1987, so she was certainly in Congress in 1999, when Clinton sent U.S. ground troops into then Yugoslavia, right into the middle of the four-part civil war in Bosnia. Honestly, I do not recall her taking to the airwaves and newspapers to argue that he had no such authority. In fact, she supported the war, and she led the fight for it when it finally reached Congress (long after we'd already invaded).

So despite saying "any president," she clearly does not mean exactly that. But does she actually believe that only Republican presidents lack this authority? Or is her analysis specific to Bush himself?

The answer appears to be the former, because she made the same "illegal" argument against Bush's father, President George H.W. Bush, when he created and sent a coalition of forces into Kuwait -- also without prior congressional approval:

When Iraq invaded Kuwait in 1990, Pelosi adamantly opposed military action, lamenting that George H.W. Bush was "resorting to militarization in order to solve a conflict." The war, she said, was an "ill-conceived policy of violence;" Bush, she argued, was acting "illegally."

Thus, Ms. Pelosi begins to come into focus: she believes that Republican presidents lack authority to start wars, but Democratic presidents must act strongly in times of great danger. (Say, I used to play this game, Conjugation, in junior high: "I am steadfast, you are stubborn, he-she-it is a recalcitrant jackass.")

• Finally, I find her words to be uncharacteristically carefully parsed; she sounds almost Clintonian, in fact.

Consider what she said and did not say: She said he did not have authority to "go into Iran." But what about merely attacking Iran -- say by air and missile bombardment? Does that count?

Why didn't she simply use the more common phrase "attack Iran?" That would have made clear that she claims he has no power to initiated any hostilities at all, of any kind, without prior congressional approval.

But that would also be legal nonsense that would be tossed out of court. In fact, even the lawsuit against Clinton's Bosnian adventure filed by Rep. Tom Campbell (R-CA, 100%) lost in court; the courts have been remarkably (but properly) reluctant to declare any military action to be in violation of the Constitution. While I think it was foolish for President Clinton to engage us in that war, it certainly was not unconstitutional; he was the Commander in Chief of the armed forces, he has wide latitude in how he can use them.

But Pelosi made a point of restricting her pronouncement to "go[ing] into Iran," which even MyWay interpolated as "invad[ing] Iran." Surely the most obvious way to interpret that is as an actual land-invasion by our armed forces of Iran, à la what we did in Afghanistan and Iraq.

But who in the administration is talking about that? I haven't even seen anyone go so far as to agree with me that we should implement the Herman Option... which involves only aerial attacks on Iran (no "invasion") -- plus the seizure of offshore oil facilities, many of which are arguably in international waters.

Even more puzzling: Who is Nancy Pelosi arguing with? In the only two instances in the Bush Administration's six-year history where we actually did send the Army and Marine Corps rolling into a sovereign nation -- Afghanistan in 2001 and Iraq in 2003 -- the Bush administration sought and received prior congressional approval. Evidently, in that respect, George Bush agrees with Nancy Pelosi (as a matter of good form, if not as a matter of law). He demonstrated that agreement in practice.

So Speaker Pelosi pointedly used a term that seemingly applied only to a situation nobody is proposing; she avoided using a more general term; she avoided claiming that Bush disagreed with her analysis. This careful parsing allows her to look really, really tough and manly, while avoiding saying anything that might lead to a debate -- which Ms. Pelosi would lose, either in court or on a congressional vote (note that "Congress" is not synonymous with "the House of Representatives").

Has this sort of tendentious and absurdly precise parsing of language become endemic within the Democratic Party since 1992? Is the ability to split hairpieces about "what the meaning of 'is' is" now formally required in order to achieve leadership position in Congress?

Hatched by Dafydd on this day, February 15, 2007, at the time of 5:19 PM | Comments (1) | TrackBack

December 13, 2006

Clinton Judge Upholds Bush Detainee Policy

In a surprise (to me, at least), President Bush's revamped Military Commissions Act -- passed by Congress and signed by the president, as Justice Kennedy virtually demanded -- has just passed its first hurdle: it was upheld in its first court hearing... by a Clinton-appointed federal district judge! Poor, old Hamdan will likely have to stay in the pokey for the duration.

In fact, Judge James Robertson was not only appointed by President Bill Clinton, not only a former civil-rights activist, he was even confirmed in 1994, while the Democrats still controlled the Senate. And Robertson was the judge who originally ruled in Hamdan's favor, and whose ruling was somewhat upheld by the Supreme Court. But today, he bowed to the obvious:

A federal judge upheld the Bush administration's new terrorism law Wednesday, agreeing that Guantanamo Bay detainees do not have the right to challenge their imprisonment in U.S. courts.

The ruling by U.S. District Judge James Robertson is the first to address the new Military Commissions Act and is a legal victory for the Bush administration at a time when it has been fending off criticism of the law from Democrats and libertarians.

Robertson rejected a legal challenge by Salim Ahmed Hamdan, a former driver for Osama bin Laden whose case prompted the Supreme Court to strike down the Bush administration's policy on detainees last year.

That was the infamous Hamdan case, where four of the nine justices of the Supreme Court -- John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter -- opined that even enemy combatants had to be granted full Geneva-Convention rights -- including the right to refuse to be interrogated.

Fortunately, the fifth justice (Anthony Kennedy) to join the decision that Hamdan's detention was not constitutional without Congressional legislation refused to sign aboard the expanded version of Geneva pushed by the Hamdan Four. He agreed only that Bush could not detain people simply on his own say-so (I disagree, but I don't own a black robe).

Justice Kennedy more or less said that if Congress passed Bush's military commissions into law, Kennedy would vote to uphold it. With that signal, Judge James Robertson upheld the current detention regime of Hamdan:

Hamdan's case was sent back before Robertson, a nominee of President Clinton who was a prominent civil rights advocate in private practice.

Though Robertson originally sided with Hamdan, he said that he no longer had jurisdiction to hear Hamdan's case because Congress clearly intended to keep such disputes out of federal courts. He said foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy.

Actually, though, that's not true. According to the Justice Department, detainees can challenge their status before a mliitary commission; and if they don't like the decision, they get one bite at the apple to appeal to the D.C. Circus Court of Appeals... then that's it; their decision is final. This is hardly denying unlawful combatants some fundamental right to endlessly abuse the system and interfere with the president's ability to wage war:

"That is more process than the United States has ever provided to enemy combatants in our past conflicts," Blomquist said.

This won't be the last word: Hamdan will of course appeal to the D.C. circuit. But I'd sure rather my side be in the position of having to defend a win than having to appeal a loss!

And there are two other cases currently being considered by the D.C. circuit where I think we are in the position of having to appeal losses; but they were evidently decided either before the MCA passed or at least without considering it... so if this decision is a harbinger, it's a sign of good decisions to come.

Hatched by Dafydd on this day, December 13, 2006, at the time of 4:19 PM | Comments (9) | TrackBack

December 8, 2006

Suing the Secretary and Other In-Jokes

We've known for a long time that federal judges are prone to "grow in office;" in fact, I believe the very term itself was coined (wrongly) to describe the career of Justice David Hackett Souter... who was, as few now remember, a flaming liberal Republican, in the mold of his mentor, John H. Sununu -- former New Hampshire governor and White House chief of staff under President George H.W. Bush -- long before being nominated to the court. (In fact, I'm sure that's why Sununu and liberal Republican New Hampshire Sen. Warren Rudman persuaded Bush-père to nominate Souter in the first place.)

Still, it's always sad to see it happen. Especially when it's a Reagan appointee who has, like Topsy, the little girl from Uncle Tom's Cabin, "just growed." It happened with Justice Sandra Day O'Connor.

And now it seems we're in imminent peril of it happening again... this time with potential dhimmi of the year, Judge Thomas F. Hogan, appointed by Reagan to the D.C. Circus Court in 1982 -- and 24 years is a lang, lang time a-growin'. For if Hogan rules the way the Associated Press, at least, expects him to rule, he could single-handedly do more damage to America than another 9/11 would.

The ACLU is suing, on behalf of nine enemy combatants (now there's a shock!), former Secretary of Defense Donald Rumsfeld -- along with retired Lt. Gen. Ricardo S. Sanchez, who resigned because he thought Abu Ghraib destroyed his career, even though he had nothing to do with it; disgraced Brig. Gen. Janis L. Karpinski, who was directly blamed for not taking control of her troops; and Col. Thomas M. Pappas, the senior intelligence officer at Abu Ghraib, who testified against others in exchange for immunity.

But the worst part is that the suit isn't against the Office of the Secretary of Defense or the United States Army. Rather, these four defendants are being sued as individuals -- for exercising their normal official duties.

Judge Thomas "Huck" Hogan appears to be dithering, flirting with the idea of allowing any former POW, enemy combatant (lawful or unlawful), terrorist, or family of any person killed by an American soldier to personally sue the soldier, jailor, intelligence agent, commanding officer, cabinet secretary, CIA director, or president of the United States that the plaintiff deems responsible for the "victim's" inconvenience.

The ACLU -- or CAIR -- could drag not only every government official through the court system, based entirely upon the plaintiff's disagreement with administration policy, it can then extend the suit to hundreds or thousands of soldiers in the field, demanding they all be shipped back home to be witnesses and defendants in civil suits that amount to terrorism by barratry.

"Huck" Hogan himself seems to understand the dogs of judicial war he nevertheless appears poised to unleash:

Foreigners outside the United States are not normally afforded the same protections as U.S. citizens, and Hogan said he was wary about extending the Constitution across the globe.

Doing so, he said, might subject government officials to all sorts of political suits. Osama bin Laden could sue, Hogan said, claiming two American presidents threatened to have him murdered.

"How do you control that?" Hogan asked. "Where does it stop? Does it stop at the secretary of defense? Does it stop at the president? How does this work?"

Yet even so, there he stands, pointing a judicial gun at the head of American sovereignty, his finger twitching on the trigger...

Hogan questioned the scope of that immunity. He said freedom from torture is a basic right accepted by the United States and all civilized nations.

"Would you take the same policy if the argument was one of genocide?" Hogan asked. "Are you saying there could be no inquiry done?"

But of course, there has never been a shred of evidence offered that Rumsfeld even knew of the abuses (which it pleases ACLU lawyer Paul Hoffman to call "torture") at Abu Ghraib, let alone "encouraged and directed that torture," as he casually claims. So what is the point? First and most obviously, the ACLU simply hates Rumsfeld's policies so much, they seek to destroy him as a person.

But the broader political purpose of the suit is quite clear, and it's not to get abstract "justice" for the nine former prisoners: the function of the ACLU's lawsuit is to reach out and wrench American military and anti-terrorism policies more in line with those of Sen. Harry Reid (D-Caesar's Palace, 100%) and Rep. Nancy Pelosi (D-Haight-Ashbury, 100%) -- or perhaps former (thank goodness) President Jimmy Carter (D-Venus).

The intent is to leave all officials looking nervously over their shoulders, second-guessing every action -- will the ACLU, CAIR, the ADL, and every other extremist group find it acceptable? Since the answer will inevitably be No, some radical group or other is sure to find illegalities and violations in every conceivable action, the only safe thing to do is not to act at all.

And that's precisely what the ACLU wants, a "Hippocratic world": a world where all defensive action is forbidden, and every official cares only about doing no harm -- to anyone.

Thus does the politics of personal destruction make common cause with terrorism by barratry.

And the nation stands at the brink of disaster because of the inability of a Reagan-nominated federal appellate-court judge to slap this improper lawsuit down after the first day's hearing. "Huck" cannot seem to understand that whatever is the proper remedy for some horrible, policy-driven crime against humanity (such as genocide), it cannot arise from the federal courts... because any regime that would actually undertake, say, a "Final Solution to the Moslem problem," would certainly, as its very first act, disempower or even dissolve the entire civilian judicial system -- just as the Third Reich did.

Such a horrific policy implies a complete and total subversion of American society and government, something we never saw even in the depths of the Civil War or World War II, and which not even the American Criminal Lobbyist Union has had the audacity to claim. (Plenty of Islamists have claimed it; but they also claim that Allah commands them to exterminate the Jews, and they have also propelled Hitler's Mein Kampf -- in Arabic translation -- to the top of the Middle East bestseller list; so I don't see them as particularly credible on the subject.)

Judge Hogan has not yet ruled (at the time I write this), and it's still possible he will come to his senses and realize that it's not the duty of the courts to tell the American military how to wage war -- or how to punish those who violate military law -- or even to award civil damages to people who were discommoded by American foreign and anti-terrorism policies.

If Donald Rumsfeld had punched out someone in a ballroom blitz (or if he had sexually harassed a subordinate), it would be perfectly appropriate to sue him as an individual; such actions are committed by the individual, not the office. But to be able to sue Donald Rumsfeld, or Les Aspin, or Bill Cohen, or any other government official for the official acts of his office, pursuant to the express policy of the president of the United States (often acting in his capacity as Commander in Chief of the armed forces), is a prescription for complete collapse... the "Hippocratic world" of the ACLU.

Let us hope that Judge Hogan hasn't "grown" quite that far. Yet.

Hatched by Dafydd on this day, December 8, 2006, at the time of 4:49 PM | Comments (12) | TrackBack

June 29, 2006

Time to Withdraw From Geneva... If We Can

Hugh Hewitt says that the actual majority decision of the Supreme Court in the Hamden case does not reach quite as far as the unholy quadrumvirate of Justices Stevens, Ginsburg, Breyer, and Souter did: interpreting the 1949 Geneva Conventions to apply to terrorists captured abroad. Specifically, he says that Justice Kennedy did not join that part of the opinion, opting instead for the narrower view that only the procedures of the military tribunals need comply with Geneva, because some of those held in Guantánamo Bay are members of the Taliban, which was an organized militia (as if mere membership meant they couldn't be terrorists).

I don't know if he is correct; maybe it is actually a majority position. But let's assume Hugh is right, and contrary legal commentators are wrong. That still means that the entire war on jihadi terrorism now hangs by the thread of Justice Anthony Kennedy's sanity and common sense... and that that is a slender lifeline indeed.

If that's where the Court, as a majority, stands, then we're still alive; we're on life support but not dead yet. But -- and it's a Big But -- if "Coin-Flip" Kennedy changes his mind and joins with Stevens, we may find ourselves in a true horror movie.

Because of the terrible danger that this may happen, I sincerely believe it is time for the United States to withdraw (by any means necessary) from the Geneva Conventions... if Justice Stevens will even permit the president and Congress to do so.

This drastic reaction is thrust upon us by the plurality's action, led by ultra-liberal Justice John Paul Stevens. There are now four justices who hold that terrorists must be treated as prisoners of war under the conventions.

To arrive at this weird conclusion, they completely ignored Article 4 of Convention III, Relative to the Treatment of Prisoners of War, which defines who is and who is not a "prisoner of war"... and which clearly and unambiguously excludes terrorists. Article 4 holds that:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

I do not believe that Stevens ever addressed this provision, which undeniably excludes unlawful combatants, such as al-Qaeda terrorists, from consideration as prisoners of war. He simply dismisses it without discussion and, in essence, declares all unlawful combatants to be legal combatants from now on.

But this clearly was not our intent when we agreed to the conventions. Such unlawful combatants were excluded when we signed, and there's solid evidence we still hold to that exclusion even now.

There was an addition to the conventions, Protocol I, enacted in 1977 that muddied the waters, having the effect of declaring that states party to it must treat even unlawful combatants as they would treat prisoners of war... without calling them prisoners of war.

But because of this very provision, the United States refused to accept Protocol I. We are not signatories to it... shouldn't that alone have convinced Stevens that he was flatly wrong about what we intended when we ratified the original conventions in 1949?

Even the website for the Geneva Conventions itself is at odds with Justice Stevens and his posse:

Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups — and thus endanger the civilian population — are no longer protected by the Geneva Convention.

So how would the terrorists' new status, were a plurality of the Court to become the majority, affect how we must treat them? It would mean, as Stevens argued, we must treat what used to be considered unlawful combatants as well as we treat ordinary American soldiers being tried by courts-martial.

In particular, Justice Stevens, writing for 80% of the majority, opined that Convention III, Relative to the Treatment of Prisoners of War, Article 3, applied to al-Qaeda and other terrorist prisoners. Article 3 requires the following:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons....

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The latter requires, as a matter of course -- and this is how the quadrumvirate interpreted it -- that any tribunal trying such prisoners must afford them all the legal protections afforded members of the military being court-martialed... including the right to be present, along with the civilian attorney of their choice, for all introduction of evidence, including highly classified evidence exposing methods and personnel of our intelligence-gathering capabilities.

I would think this would also require the production of all relevant "witnesses" that the prisoner demands at his trial -- which could mean yanking from the field every soldier involved in apprehending him, since the capture is certainly relevant to his case.

As one blogsite put it (I wish I could remember which one), that could in theory mean having to undeploy entire units and send them back to the United States for every trial where a clever attorney (Ramsey Clark, for example, who would of course happily volunteer) figures out that rather than disrupt the entire war, we would just drop the case.

This is absolutely nutty, and I cannot believe that a subsequent Court would really enforce that. But we don't have a subsequent Court; we have this one. And this one, under the direction of Stevens, Ginsburg, Breyer, and Souter, and with only the thin reed of Anthony Kennedy preventing it from being a majority of the Supreme Court, has proven that it jolly well might enforce just such a provision... since four justices did exactly that.

All right, so we can't try them by any rational form of tribunal, since we certainly cannot risk exposure of secrets to the attorney provided by al-Qaeda for each prisoner. But the Court did say we could still hold the prisoners for the duration of hostilities. So no problem, right?

Yeah. Sure. Look again at Article 3, section 1, subsection (c):

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

I am sure that the quadrumvirate would hold that this utterly and completely prohibited the interrogation of captured terrorists, no matter where they were captured, where the interrogation took place, or what the circumstances were of the capture. If we caught one of three couriers carrying modified airborne ebola in aerosol containers, we could not, under Hamden, interrogate the prisoner to find out where the other two couriers were.

Certainly nothing more than asking him politely -- certainly not by any method that might outrage his personal dignity. Like, say, waterboarding.

At the moment, I think Congress can redraft the law allowing for tribunals to cover this by requiring a finding by the President of the United States first that a particular detainee is an unlawful combatant anent the Geneva Conventions, and only then can he be tried by the military tribunal. Presumably, this finding would be subject to litigation in the courts; but it's a fairly cut and dried issue, and the test could be written right into the new law.

But that's assuming Kennedy doesn't flip again. If he does, all bets are off.

Simply put, four of the nine justices, through their hysterical and borderline treasonous malinterpretation of the Geneva Conventions, would turn them into an international suicide pact. Stevens sees no "practicable" reasons why captured al-Qaeda terrorists with knowledge of an imminent WMD attack upon the American mainland should not be treated exactly the same as a United States Marine accused of pilfering the petty cash, with all the same rules, protections, and privileges, which includes protection against any form of aggressive interrogation.

So I believe -- purely for defensive purposes -- that it is now time to withdraw from the 1949 Geneva Conventions. It was a good treaty, and it served its purpose; but that was then, this is now.

Wait a minute, Dafydd... what about less drastic measures? If Kennedy flip-flops again, can't Congress just redraft the law to restore our ability to interrogate captured terrorists?

I cannot imagine they could: treaty obligations are considered by the Court the equivalent of constitutional provisions, and they cannot simply be waved away by legislation. No more than could Congress simply pass a law overturning part of the First Amendment. If a majority of the Court ever held that our treaty obligations under the Geneva Conventions required us to treat captured terrorists like members of our own military in courts-martial, Congress could not simply overrule that finding.

And evidently, they also cannot limit the Supreme Court's jurisdiction. They already tried that... and the Court (the full Court, Kennedy concurring) simply rejected it, notwithstanding the constitutional provision that says Congress has exactly that authority. Article III, section 2, of the United States Constitution:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

All right; but what would happen if we did withdraw? Wouldn't that be dangerous for our own soldiers?

The second glib response is that if we do withdraw and no longer extend those protections to others, others will not extend them to us. But this is facile sophistry, because the only enemies we're likely to fight now or in the future -- whether Stalinist North Korea or al-Qaeda and other terrorist groups -- already ignore the Geneva Conventions... as the abduction of Israeli Cpl. Gilad Shalit, currently being held hostage by Hamas, demonstrates: holding hostages is against the Geneva Conventions.

Those countries that actually do abide by them are precisely those Western nations (like the United States) that would abide by them even if fighting a country that did not... and that we're not going to end up at war with in the first place. And even if we did, we could quickly negotiate a temporary treaty incorporating the Geneva protections for the duration of that war.

There is no downside to withdrawal, because the West has accepted their spirit, as it applies to wars against actual countries. For example, we ourselves adhere to the conventions in our treatment of Taliban and Iraqi insurgents who were captured fighting as armed militias while wearing uniforms and such; we do not apply the same interrogation techniques to them that we apply to captured unlawful combatants, such as terrorists.

Even though some Taliban members are at Gitmo, they are precisely those who behaved as unlawful combatants... which is why I'm not in the least confident that Justice Kennedy grasps the distinction; if he thinks that a terrorist becomes a non-terrorist because he happens to be a member of an organized army, even if he acts contrary to the conventions, then Kennedy could easily fall into Liberal-Land hand in hand with the quadrumvirate. It's a short and slippery slope.

So long as the conventions hang out there, and so long as there is no stomach on the part of other countries to negotiate a new protocol making absolutely clear that terrorists are unlawful combatants and are not covered by the protections of the conventions -- and why should they, especially signatories like Iran and Syria? -- the Geneva Conventions are a ticking time bomb, just waiting for one more Supreme Court justice to turn the plurality into a majority.

But the real question is whether the Court -- Kennedy included -- would allow us to withdraw. Having gone so far, would they go the rest of the way and hold that the conventions are eternal, and that we cannot withdraw even if we choose?

I've been looking and looking through them, and I cannot find any reference at all to withdrawal: nothing forbidding it, but no procedures for leaving, either. If Stevens, Ginsburg, Breyer, and Souter are willing to cripple -- essentially obliterate -- our ability to interrogate captured terrorists; and if even Kennedy considers following the conventions more urgent than surviving the war the jihadis imposed upon us; then I'm sure all five of them would move swiftly to prevent any attempt to wriggle out of the straightjacket by withdrawing from the Geneva Conventions altogether.

Which leaves us in a constitutional crisis: has the Supreme Court actually become "more equal" than the other equal powers? Is the only solution impeachment of justices -- assuming the Court would even allow that?

And would the Democrats, in the last analysis, vote to impeach even if Kennedy were to flip on the critical issue of treating all captured terrorists as prisoners of war? Or would they vote to acquit, sacrificing any hope of winning the war against jihadi terrorism in their BDS-driven need to hurt George W. Bush?

The Court has left us with a dreadful Sword of Damocles dangling above our heads. What are we going to do about it?

Hatched by Dafydd on this day, June 29, 2006, at the time of 5:56 PM | Comments (9) | TrackBack

June 19, 2006

Erwin Chemerinsky Is All Wet

Not being an attorney, I'm not allowed to have much of an opinion on today's Supreme-Court decision in the two linked "wetlands" cases, John A. Rapanos, et ux., et al. v. United States and June Carabell, et al. v. United States Army Corps of Engineers, et al.

However, since I play a "Philadelphia lawyer" on the blog, I will spout off anyway. The Court held that it wouldn't hold anything; well, actually it held only that the lower courts that decided these cases had to rehear them to determine what "nexus" (if any) exists between the wetlands under question and "navigable waterways."

The Court didn't say what it might do with that information once it got it:

• The four conservative members -- Chief Justice Roberts and Justices Alito, Scalia, and Thomas -- said that if the wetlands weren't at least adjacent to navigable waterways (and with a surface connection), then the Army Corps of Engineers (ACE) and Congress could not, under the act, regulate them.
• The four liberal members -- Justices Stevens, Breyer, Ginsburg, and Souter -- opined that it wouldn't make any difference if the "wetlands" in question was in fact the sewer system of Long Beach, California; the act gives the ACE power to regulate anything it wants.
• And alas, the "swing vote," the man with the bidirectional mind, Justice Kennedy, announced that he had no clue how he might rule once he saw the new evidence, nor what he actually thought about anything, nor even whether he would care. In fact, he literally announced that he would simply consult his Magic 7-Ball (he doesn't quite have an 8-Ball). No, seriously.

(I wonder whether Patterico or Dan Kauffman will be first to post a comment demanding to know where exactly in the Kennedy opinion does he "literally" say he will use a Magic 7-Ball...!)

Today, Hugh Hewitt had a special visitation by the "smart guys," which actually means the smart guy and the screaming schemer: John Eastman and Erwin Chemerinsky. Eastman was rational, so let's dismiss him. I want to focus on Chemerinsky.

The case hinges on what, exactly, the Clean Air and Water Act of 1972 regulates -- and secondarily, though I don't think the Court got to this question, what Congress is constitutionally allowed to regulate. But when Hugh asked Chemerinsky what (in his expert legal opinion) could be regulated by the 1972 act, Chemerinsky kept dodging the question, referring only to things where virtually everybody would agree that regulation was necessary. For example, he risibly suggested that under the Scalia approach, all a "polluter" would have to do is put his dirty factory "far enough upstream," and he could then pour anything he wanted into the river.

This of course assumes that there are no state regulations banning such pollution... because actually, all we're talking about here is whether the Army Corps of Engineers could regulate against the wishes of state agencies. The Court was not deciding whether people should be allowed to pollute rivers and streams. In fact, the case wasn't even about pollution but whether land-owners could fill-in man-made drainage ditches and small lakes unconnected with any "waterways."

There is a more urgent question that I wish Hugh had asked, but which evidently didn't occur to him: Mr. Chemerinsky, under your interpretation of the scope of the act -- what kind of wetland wouldn't fall under the jurisdiction of the federal government? Can you imagine any puddle of water anywhere that would be immune from the ACE, if they chose to issue pronouncements about it?

I suspect Chemerinsky would have had a very hard time answering that question... because in fact, everything I have ever heard him say makes me believe that the man is the opposite of a federalist: he is a nationalist (and on many issues, an internationalist). Chemerinsky seems to believe that Congress should have, and indeed does have under the Constitution, authority to mandate, regulate, or forbid any behavior in any state, county, or city anywhere in the country, with no limits whatsoever.

To me, it appears that Chemerinsky desperately wants the federal government to have general police powers over the states and local government; and that that famous list of areas where Congress can regulate, found in the United States Constitution (Article I, §8), is simply a laundry list of suggestions -- not any sort of limitation.

Penultimately, I suspect that Chemerinsky would like to see all power in the hands of the federal government... then ultimately under the control of a single, pan-national congress or parliament made up of the "anointed elites" of all nations. Am I misjudging the man?

In any event, this is a very serious argument. The wetlands in question seem to have no "nexus" to any navigable waterway stronger than the mere fact that we have a water cycle on this planet: water from everywhere gets evaporated by sunshine, then returns to the Earth as rain, falling upon every navigable waterway in the world.

If the standard governing whether a wetlands is covered by the 1972 act is that there exists any nexus at all, including the water cycle -- and if the act applies to these particular wetlands, then that must be the standard -- then Congress has given jurisdiction to the ACE to regulate any water-filled indentation at all... including your backyard swimming pool.

Hatched by Dafydd on this day, June 19, 2006, at the time of 4:42 PM | Comments (4) | TrackBack

June 12, 2006

Nine-Judge Monte

The most recent unanimous decision of the Court on the question of the constitutionality of lethal injection as a method of execution really doesn't advance the question much, at least as far as us non-lawyers are concerned. (Our last foray on this battleground was Three-Judge Monte, back in April.)

All that the Court decided was that convicted cop killer and bank robber Clarence E. Hill can raise the issue with the lower courts; the Supreme Court did not rule that lethal injection was unconstitutional.

The Supreme Court ruled unanimously today that condemned prisoners can challenge the humaneness of the lethal blend of chemicals that are to be used to execute them.

The ruling, written by Justice Anthony M. Kennedy, continues the life-and-death drama involving Clarence E. Hill, who was strapped to a gurney on Florida's death row when Justice Kennedy granted a stay of execution on Jan. 25.

You can read the decision and the full opinion here, but this is the Readers Digest condensed version:

Facing execution in Florida, petitioner Hill brought this federal action under 42 U. S. C. §1983 to enjoin the three-drug lethal injection procedure the State likely would use on him. He alleged the procedure could cause him severe pain and thereby violate the Eighth Amendment's prohibition of cruel and unusual punishments. The District Court found that under controlling Eleventh Circuit precedent the §1983 claim was the functional equivalent of a habeas petition. Because Hill had sought federal habeas relief earlier, the court deemed his petition successive and barred under 28 U. S. C. §2244. The Eleventh Circuit agreed and affirmed.

Held: Because Hill's claim is comparable in its essentials to the §1983 action the Court allowed to proceed in Nelson v. Campbell, 541 U. S. 637, it does not have to be brought in habeas, but may proceed under §1983. Pp. 4-10.

In other words, this is a narrow, technical ruling whether the action Hill filed under §1983 of the United States Code was actually just another bite at the same habeus corpus apple, or whether it's a different apple from his previous writs. The Court unanimously held that this was a different issue that should be decided on its own, not brushed aside.

Beyond that, we've not much to say until this works its way through the system and comes back to the Court again... where (one hopes) sanity (and the Scalia position) will prevail:

On the other side, Justice Antonin Scalia, a strong death penalty supporter, said the Supreme Court has never held that a state must use a method that causes the least amount of pain.

"Hanging was not a quick and easy way to go," Scalia said.

(Alas, that last quotation is from a Reuters article that is no longer available.)

We've fought this battle before:

• February 15th, 2006 -- If I Should Ouch Before I Die
• February 21st, 2006 -- Doctors Overturn Death Penalty
• April 26th, 2006 -- Three-Judge Monte

Hatched by Dafydd on this day, June 12, 2006, at the time of 3:56 PM | Comments (0) | TrackBack

June 5, 2006

Anutter Grutter Cutter?

The U.S. Supreme Court has agreed to hear a case that has at least a good possibility of reversing what was arguably the worst Supreme-Court decision of the Bush era... a position that was ardently supported by the Bush administration itself.

The Supreme Court agreed today to consider an issue of enormous importance to parents and educators across the country: the extent to which public school administrators can use racial factors in assigning children to schools.

The court accepted cases from Seattle and Louisville, Ky., for its next term. The school districts in both cities defeated challenges to their assignment procedures in the lower courts.

"Looming in the background of this is the constitutionality of affirmative action," Davison Douglas, a law professor at William and Mary, said in an interview with The Associated Press. "This is huge."

The earlier case to which I alluded was Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court held that the "affirmative-action" (racial preferences) in the University of Michigan's law school were constitutional. And the reason I think there's a reasonable chance to chip away at that awful decision is that it was 5-4... with Justice Sandra Day O'Connor writing for the majority.

O'Connor has since retired, of course, replaced by Justice Samuel A. Alito: if Alito actually opposes racial preferences, as I suspect he does, then he could be the crucial flip-vote that might begin wrenching the country towards racial sanity.

Chief Justice William Rehnquist died in the meanwhile and was replaced by Chief Justice John Roberts; but Rehnquist was in the minority in this case. So assuming that Roberts is as opposed to "affirmative action" as Rehnquist was, this will result in no change. But the O'Connor retirement could lead to racial preferences moving from a 5-4 win to a 5-4 loss.

Seattle school administrators have wrestled for decades with the de facto segregation that tends to mirror the housing patterns of white, black and Asian families in the community. Students can pick among high schools. But since some schools have more applicants than they can handle, the district relies on tie-breakers, including whether a sibling attends a certain school, distance from a prospective student's home and race, to decide who gets into the over-subscribed schools. A group called Parents Involved in Community Schools sued in 2000, contending that it was unfair for the school district to consider race.

There are two cases here, and it could end up with another split decision (like Grutter v. Bollinger and Gratz v. Bollinger -- the latter involving U of M's undergraduate admissions, where the Court struck down racial preferences). The problem is that in the Kentucky case, there is an existing federal judicial order to desegregate:

The Kentucky case arises from a suit filed by Crystal Meredith, who contends that her son Joshua was not allowed into the neighborhood school because he is white. The Jefferson County school district has a history different from Seattle's, in that the Louisville schools operated for years under a federal order to desegregate. In 2001, the district began using a plan that includes racial guidelines. The plan was upheld by the United States Court of Appeals for the Sixth Circuit.

I have always argued that the way to combat official segregation is by the complete lack of segregation... not by segregating in the other direction. It's as unfair to the white Joshua Meredith that he's kept out a good school because he's white as it was to black kids during Jim Crow to be kept out of good schools because they weren't white.

But we'll see how the Court sees it. Keep your eyes on the prize....

Hatched by Dafydd on this day, June 5, 2006, at the time of 5:54 PM | Comments (1) | TrackBack

May 25, 2006

What IS Speech?

Today, the House approved (by voice vote) a Senate bill that bans protests at national cemetaries during the burial of fallen soldiers. I can't imagine President Bush not signing it.

The bill is aimed squarely at the vile and notorious Fred Phelps (whom I will not refer to as "Reverend," because whatever church ordained him should take it back). Phelps has been showing up with his groupies at military funerals, screaming "God hates fags," calling the dead solders "abominations," and carrying signs reading (no joke) "THANK GOD FOR DEAD SOLDIERS." (You can see the sign at the link; we're not putting the picture up here.)

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral. Those violating the act would face up to a $100,000 fine and up to a year in prison.

The sponsor of the House bill, Rep. Mike Rogers, R-Mich., said he took up the issue after attending a military funeral in his home state, where mourners were greeted by "chants and taunting and some of the most vile things I have ever heard."

"Families deserve the time to bury their American heroes with dignity and in peace," Rogers said Wednesday before the House vote.

Like the anti-flag-burning bills, this one will be wildly popular... yet raise profound constitutional questions. Phelps, of course, sees it as his holy duty to announce that soldiers are dying in Iraq and Afghanistan because America hasn't yet rounded up all the homosexuals into internment camps, and that such a ban violates his civil liberties:

In an interview when the House bill passed, Phelps said Congress was "blatantly violating the First Amendment" rights to free speech in passing the bill. He said that if the bill becomes law he will continue to demonstrate but would abide by the restrictions.

And see if you can guess who is leaping into the fray... and on which side:

More than a dozen states are considering similar laws to restrict protests at nonfederal cemeteries. The American Civil Liberties Union has filed a lawsuit against a new Kentucky law, saying it goes too far in limiting freedom of speech and expression.

I have absolutely no idea how the courts will rule on this; I think the $100,000 fine is probably excessive... but restrictions on protests (moving them some distance away from an event, for example) have been upheld before. I think it will hinge, in the minds of judges and ultimately justices, whether the purpose of the act is to suppress expression.

A number of conservatives, seeing themselves more or less as free-speech absolutists, oppose criminalizing these protests, despite being appalled by the message; on one point, they are correct: we certainly cannot have one law for protests we support and another for protests that disgust us. But to me, that isn't the end of the question; it's the beginning.

What, exactly, is the "speech" that is protected by the First Amendment? There has been a lot of discussion about the mechanism of "speech," whether something nonverbal like nude dancing qualifies; the money of speech, whether campaign contributions qualify as free speech in favor or (or opposed to) a candidate; and at least a million words have been expended in the blogosphere debating the motives of a ban, whether McCain-Feingold bans political speech in order to protect incumbents from having to answer inconvenient questions in the final days of a campaign.

But what about the targets of speech? Does freedom of speech include the right to target anyone, anytime, anywhere?

As a universal rule, certainly not; it's ludicrous to uphold protesters blaring their message via bullhorn in a residential neighborhood at 4:00 am. Freedom of speech is never absolute; even libertarians agree that you don't have to right to tell a potential buyer that your car only has 50,000 miles on it when in fact it has 150,000. But where do you draw the line, and how fuzzy is it?

"Freedom of speech" is actually shorthand for two distinct but equally vital rights:

• The right to say what you believe;
• The right to listen to what others are saying.

But just as the right to "speak" includes the right to stand silent, then right to "listen" includes the right to plug your ears.

People have a right to be let alone by demagogues; this must be balanced with the right of even demagogues to engage in demagoguery... but it's a balance, not an absolute. By forcing your speech upon people who have no interest in hearing it and no rational relation to the object of the protest, you have violated the Freedom of Speech of your targets far more egregiously than moving you farther away would violate yours.

There must be some rational relationship between the object of the protest and its target. It is manifestly irrational to protest the Iraq war by sending 10,000 people to picket in front of a Mom & Pop shoe store in Hoboken, NJ. There is no reasonable connection, no reason why the shoe store should be commercially obliterated (which is what would happen) if they are not in any position to do anything about the war in Iraq, and are in fact simply bewildered at being so honored.

I go back to first principles. The purpose of the First Amendment was always to protect the right of the people to speak out against injustice (as they saw it) in order to move people to do something to change it. For example, to speak out against the tyranny of George III, or against slavery, or against Jim Crow; to move Congress to outlaw booze and to try to influence a court to find a defendant not guilty (or guilty); to persuade Congress to immediately make all illegals citizens -- or persuade 'em to deport them all and put soldiers on the border.

Whether or not you may have the right to urinate on the American flag -- and I think you should have -- you certainly have no right to run after me and shove it in my face. In that respect, your "speech" is limited by my right not to observe it... the target, too, has rights.

What about public places, like national cemetaries, during particular events, such as funerals of soldiers? The conservatives and libertarians who object to such a ban are certainly right in one respect: Phelps' protest is overtly political in nature: he wants laws passed to segregate and perhaps incarcerate homosexuals. He is as political as Tom Metzger or David Duke.

But these protests fail the critical "rational relation" test, in my opinion: there is no explicable connection between the parents of a soldier killed in action in Iraq -- and laws criminalizing "sodomy."

• The protesters make no claim that the specific soldier killed was gay;
• They don't claim the parents are gay-rights activists;
• They don't claim the funeral itself is a celebration of homosexuality;
• They don't even claim that the military is a significant defender of gay rights.

There is no rational connection between the object of the protest and its target. None. And even if the protesters belated start making these claims, that doesn't make them any more reasonable. This sort of crap is much more like the 10,000 picketers in front of Fred's Shoes than it is like peeing on a flag on the steps of the Capitol.

The "reasonable relation" test should dramatically affect the balancing act between the right of speakers to speak -- and the right of the unwilling audience not to have to listen. Where there is a reasonable relation between object and target, freedom to speak should predominate; but where there is no such relation, then the freedom not to listen to the repugnant is the higher principle.

If we applied this uniformly, I think we would get some interesting results: flag burning in public places would not be affected by such a rule, since there is a clear and obvious connection between the American flag and policies of the United States (we "pledge allegiance to the flag... and to the republic for which it stands," after all); but protesting the Iraq war by stripping naked likely wouldn't pass muster, because there is no rational connection between the one and the other.

Contrariwise, stripping naked en masse at a beach to protest the arrest of some skinnydippers would at least pass the "rational relation" test -- though it may run afoul of other restrictions beyond the scope of this post.

There are an infinity of avenues left for Phelps and his mob of perverts to protest in favor of sexual-preference apartheid, many far more rationally related to the subject than this. I really don't see how such a ban violates their freedom of speech (part I) when weighed against the freedom of speech (part II) of the families and friends of the dead soldiers; and I'm surely not inclined to stretch for a reason, as the ACLU is.

(I do wonder, though: if the funeral disrupters were members of International ANSWER, screaming "capitalist pig!" and "baby killer!" at gold-star parents -- that is, if the protesters shamed and humiliate the Left, rather than the Right -- would the ACLU be so speedy about jumping into the fray?)

Hatched by Dafydd on this day, May 25, 2006, at the time of 3:31 PM | Comments (7) | TrackBack

February 18, 2006

FISA or Congress Should Oversee NSA Program

Really, I have no problem with what Sen. Pat Roberts (R-KS), chairman of the Senate Select Committee on Intelligence, just said:

The chairman of the Senate Intelligence Committee, breaking ranks with the president on domestic eavesdropping, says he wants a special court to oversee the program.

But less than a day later, a top aide to Sen. Pat Roberts, R-Kan., sought to clarify his position.

Roberts told The New York Times that he is concerned that the secret court established by the Foreign Intelligence Surveillance Act could not issue warrants as quickly as the monitoring program requires. But he is optimistic that the problem could be worked out.

"You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit," Roberts said Friday.

So is Roberts being inconsistent? Incoherent? Is it flip-flopping? Not at all... this perception only exists because most people in the Antique Media talked themselves into believing that "oversight" is synonymous with "complete day-to-day control." That is, they think that any sort of court oversight must necessarily require a warrant prior to every act of surveillance by the National Security Agency.

In fact, oversight works very differently. Roberts' own committe, the Senate Intelligence Committee, has "oversight" over the CIA; but that doesn't mean that CIA officials must get committee approval before engaging in any spying. Rather, it means that the committee periodically reviews what the CIA is doing and has done; and if there is a problem, the committee can summon CIA officials to explain what happened (in secret session).

This model could work fine with the FISA court and the NSA al-Qaeda intercept program: the program would continue as before, with all decisions made by the National Security Agency, the national intelligence director, and up the chain to the president. Then periodically -- let's say every three months -- the NSA submits a quarterly review to the FISA court of what surveillance it has conducted, how it obtained those telephone numbers or e-mail accounts, whether Americans were involved, and if so, what steps the NSA took to safeguard the constitutional rights of those Americans caught up in this program.

The FISA court could review this report. Of all federal courts, the one set up by the Foreign Intelligence Surveillance Act is best at keeping secrets -- as the recent reference to "Sealed Case No. 02-001," decided in 2002 by the FISA Court of Review, should make clear.

Even the Supreme Court's Hamdi decision in 2004 allowed for some sort of judicial review of the executive's actions during wartime, albeit in the more normal judiciary mode of examining specific cases brought by specific defendants. But I don't know if there is precedent for (or against) a court more generally overseeing a program's constitutionality, as Roberts evidently proposes here.

It is more natural and fitting for those quarterly NSA reports to go to the Senate and House Intelligence Committees -- since Congress, not the courts, is charged with overseeing the executive on a regular basis. I'm less pleased at a plan that would put such oversight in the hands of the judiciary, though I'm not radically opposed to the idea.

Captain Ed makes somewhat the same point in a post of his today -- though he seems skeptical that even Congress has any role here:

Due to the current political climate and a desire to move on with the program, the White House has signalled that it will respect reasonable oversight conditions of Congress. Now, however, Congress has decided that the political cost of owning the surveillance program might be too high and has decided to punt the entire responsibility to a group of appointed secret judges instead.

After quoting from a story similar to the one I linked above, Cap continues:

I still think either approach is superfluous; the executive has always had the ability to perform warrantless searches for those who cross international borders, including luggage and persons, and that's in peacetime. Where FISA demands that the executive bow to Congress in wartime espionage, the statute is clearly not only unconstitutional but also defies 200 years of precedent in the allocation of war powers. [Emphasis added]

But this is not what Roberts suggested. What Captain Ed means is that Congress cannot remove the president's Article II power to wage war. But certainly there is nothing in the Constitution barring Congress from overseeing the executive's conduct in that war. Congress can defund the war, for example; it must consent to the president's appointment of the secretary of defense and the service secretaries, even during wartime; and clearly it can choose to impeach a president -- even right in the middle of a war (that last may be unwise, but it's not unconstitutional). Each of these duties might require Congress to investigate the executive's actions... hence the need for committee oversight.

As to the courts, Hamdi gave great latitude to the president and implicitly noted his inherent powers... though it stopped short of formally endorsing them, as John Hinderaker explains, since it found the Authorization for the Use of Military Force sufficient to justify the capture and detention of even American citizens as enemy combatants during wartime. But it also clearly established that courts could and would review individual cases.

Would we really want it otherwise? Would we really want a future President Hillary Rodham to be allowed to arrest and detain as an "enemy combatant" the future Sen. Michael Steele, her Republican opponent for re-election? The balance the Court struck in Hamdi was correct.

And a balance can be struck here which would reassure the people that the NSA program is not trampling over anybody's civil liberties, would assuage the wounded feelings of a Congress that correctly believes it has some oversight authority over the program, yet still leave the day to day operation of the program completely in the hands of the executive -- that branch best suited to instant action, precisely because it is neither democratic nor deliberative in operation. Cabinet members may advise, but they get no vote in what the president decides to do.

If that's what Roberts means by "oversight," and I think it is, then the president will have no objection to signing such a bill, and it will not in any way impair his inherent and completely constitutional authority to conduct the war as he sees fit -- subject only to post-hoc review by the relevant branch, whichever that turns out to be.

(And if he wants to make it clear, he can always include a signing statement.)

Hatched by Dafydd on this day, February 18, 2006, at the time of 6:04 PM | Comments (6) | TrackBack

October 14, 2005

What Is a Religious Test?

So are conservatives "hypocritical," as E.J. Dionne concludes, for objecting to the Democrats' use of religion to criticize nominees like John Roberts then turning around and using Harriet Miers' religion as a reason to support her now?

The answer is an emphatic No, they are not. There is no hypocrisy involved for the simple reason that those opposing the use of religion before are not the same people as those encouraging its use now.

Dionne falls into the classic liberal trap of seeing groups of people instead of individuals. He writes that "President Bush's supporters" will "play religion up or down, whichever helps them most in a political fight." When Sen. Dick Durbin implied that Roberts might not be acceptable because he was a Catholic, several of Bush's supporters opposed that position on principle:

Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Sen. John Cornyn (R-Tex.), insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group, declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."

But now, Dionne announces in triumph, President Bush himself mentions Miers' evangelical Christianity as a selling point, and several other religious conservatives and conservative groups (not including Fidelis) are pleased by that fact. I suppose the identity-politics of the Democratic Party has confused the columnist... but here on this side of the aisle, we actually believe in individualism. If John Cornyn thinks we shouldn't use religion in any way to consider a judicial nominee's fitness, while James Dobson thinks it's perfectly all right, that quite obviously does not make either of them a hypocrite.

Other examples of possible conservative "hypocrisy":

• Bush supporters think we should round up all illegal immigrants and deport them, but then they turn right around and say we should give them guest-worker status!
• Bush supporters think the government is spending too much money, but then Bush supporters are in favor of a prescription drug benefit for Medicare!
• Bush supporters say that government should keep its hands off people's private lives, but wouldn't you know it? Bush supporters angrily attack Lawrence v. Texas, which overturned laws against "sodomy," as judicial activism!
• Bush supporters say same-sex marriage should be legal because to do otherwise is discrimination -- and then they scream that same-sex marriage should be illegal because traditional marriage is the cornerstone of civilization!

Those wacky, Bush-supporting hypocrites just can't make up their minds. Of course, in each case above, I played the Dionne trick: the first part of each charge referred to a different group of people than the second -- the only point gluing them together being support for George W. Bush's presidency.

The Democratic Party is a patchwork quilt sewn together from a pile of special interests, each of which comprises single-issue voters; it's like a coalition of convenience in a fractious parliamentary system: any deviation on the part of any prominent Democrat from revealed word on any issue is brutally suppressed, because of the panic that advocates for that issue -- taxing the rich, abortion, pulling the troops out of Iraq, same-sex marriage, abortion, Social Security stasis, welfare for everyone, abortion, affirmative action, or abortion -- might pull out of the fragile coalition, causing electoral collapse.

By contrast, the Republican Party is a big tent with room for many divergent opinions. The center-right coalition has proven remarkably stable: libertarian conservatives like California Gov. Arnold Schwarzenegger, social and religious conservatives like William Bennett and James Dobson, spending hawks like the gang at National Review, and projection-of-force neoconservative advocates like Paul Wolfowitz can happily cohabit, arguing specific issues while still agreeing it's more pleasant to be inside the tent spitting out than outside the tent spitting in (LBJ's original saying doesn't use the word "spitting," by the way).

If a specific individual took the Cornyn position before and takes the Dobson position now, then that individual is a hypocrite. But if you want to convince me, then show me the quotation. Until I see one, the case remains unmade.

So what -- you ask, wrenching the discussion back to the title of the post -- about Article VI, Clause 3 of the United States Constitution, which commands:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. [emphasis added, obviously]

What the heck is a religious test anyway? Come on, the answer should be obvious to everyone except a lawyer: a religious test, as used here, is a law or regulation that says something like "no Catholics shall be appointed to any position in this state government," or "only those professing a belief in God shall be allowed to file for elective office." That is, a religious test is an actual law or regulation that prohibits or requires a particular religious belief for public office. Arguments or even votes for or against a candidate or nominee on the basis of his religion do not constitute religious tests.

Even some of our best conservative and/or Republican thinkers raise this faux issue, alas. I say alas not because I'm religious, which I am not, but because this argument is an attempt to stifle legitimate discussion by invoking non-existent constitutional diktat. For example, Captain Ed writes:

Using religion as a test for a nomination gets us into dangerous territory, not to mention provides more than a dollop of hypocrisy for this administration. We do not want Congress opening a debate on people's religious beliefs and how that affects their approach to the job. It will create a mini-Inquisition on Capitol Hill for each nominee, who will be required to disavow their faith before proceeding to nomination. It's the kind of act that this administration has often decried, and for good reason.

Why would a nominee have to disavow his faith? If Sen. Charles Schumer argues that the nominee's "deeply held personal beliefs" means he cannot fairly judge, the nominee simply responds "I do not believe sincere Christians, Jews, and Moslems should all be disqualified from the bench" -- and Schumer looks like a religious bigot. No disavowal of faith required.

It's perfectly legitimate and appropriate for Sen. Schumer to make that argument; he absolutely has that right. Just as we absolutely have the right to point out to the nation what he is really saying. Considering the depth of religous belief in the United States -- for which I, as an agnostic, say thank God! -- any such argument can only help the Right and hurt the Left. Why stop the Democrats from pursuing political hara-kiri by the death of a thousand self-inflicted paper cuts?

This approach is consistent with the American way -- disparate ideas clashing on the battlefield of freedom of speech, and may the best argument win! Go ahead and argue for Harriet Miers or John Roberts on the basis of faith; don't feel ashamed. And let those who despise faith argue their case. I'm satisified in this case, as in nearly all others, to abide by the democratic process unless clear and explicit rights are to be violated... and of course, nobody has the "right" to be either a judge or a senator.

Hatched by Dafydd on this day, October 14, 2005, at the time of 4:03 PM | Comments (1) | TrackBack

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