Category ►►► Court Decisions
March 26, 2013
The Supremes Greatest Hit
So there I was, innocently perusing Facebook, when all these red Equal sign avatars start popping up as profile pictures. Silly me, at first I thought it might be Artificial Sweetner Appreciation Day and I had just missed the memo -- but then I remembered that the Supreme Court of These Here United States was hearing arguments over California's citizen-approved ban on same-sex marriage (yes, that California). I guess those avatars are just a way of people expressing their solidarity on "marriage eqality," however loosely defined.
Which is all fine and dandy by me. I love it when folks express their opinions heartily. The First Amendment, may she remain forever blessed, only gets healthier the more she flexes her muscles. I am, however, curious about certain aspects of the equal-sign argument. The crux of it was nicely illustrated by an accompanying graphic, with those bathroom-door style stick figures depicting familial arrangements:
Batman, heh! That was brilliant.
Anyway, I'm guessing the gist of it is that it doesn't matter if Heather has a mommy and a daddy, or two mommies or two daddies, or just a single parent in the picture -- they're all perfectly equal, and to think otherwise, why that would be discriminatory. That's why California's law is bad, bad, bad, and must be overturned immediately. Sound about right? Fair enough.
Problem is, the argument (while it sounds good and makes people feel good) isn't borne out by the facts. Let's start with single parenting. While many single parents make a Herculean effort to do right by their kids, and many do a fine job under the most dire of circumstances, studies have repeatedly shown that children do much better in a home with a mother and a father who are married. So as far as single parent homes being equal to homes with a married couple, you can pretty much scratch that one off.
That leaves us with the two-parent household. And since studies have shown that kids do better with two parents, doesn't that bolster the case for allowing same-sex marriage? Well, that depends. So far, there haven't been very many long-term studies into how children fare being raised by same-sex couples -- mostly because the subject is highly radioactive, and the ones that do show kids doing better with heterosexual couples tend to be pilloried by the social science community (which skews heavily to the left, go figure).
However, even that point is rather moot (to quote Rick Springfield), because the arguments being used to advance the same-sex marriage agenda largely ignore the concept of marriage as a procreative union. And with good reason: same-sex couples can't procreate on their own. Marriage, therefore, becomes more about personal gratification and self-actualization. Who are we to deny two people who are in love the right to marry?
Again, this argument undercuts itself. While the public, through its elected lawmakers, does indeed have a vested interest in promoting marriage as a procreative union (continuation of the culture, turning kids into productive, law-abiding taxpayers, making sure kids don't end up on the dole, etc.), the public doesn't -- or at least shouldn't -- give a flip about anybody's personal happiness. After all, that's a personal matter. It's also the reason we don't subsidize dating services with taxpayer dollars. Why should the government poke its big bazoo into something that does nothing to further the public interest? There are far more modest measures that it can take (such as codfying civil unions) that would be far less disruptive.
So what does that leave us with? A whole big can of worms, really. Take the helpful infographic above: Why does it only depict two parents? I mean, if two parents are good, then why not three? Or four? Hell, why not an even baker's dozen? It seems to me that only two-parent bigotry holds that polygamous or polyandrous unions cannot be equally as valid family structures in which to raise children or pursue personal satisfaction. Unless you're Mick Jagger, in which case you can't get none though you try and try and try and try.
Yeah, it's a big mess -- and it used to be so simple. One man, one woman.
So. . .why are we doing this again?
March 12, 2013
Praise the Lord and Pass the Coca-Cola
Set aside yesterday's court decision striking down Hizzoner Nanny Bloomberg's Gargantuan Gulp ban as that rare triumph of common sense in an increasingly inexplicable world. To me, it's worth cash money that the judge who made it is named Milton A. Tingling -- a truly epic nom de famille if there ever was one. It's a pity Tom Wolfe never used that for a character in one of his books.
Basically, the judge -- who shall be known henceforth with the greatest amount of affection as "The Tingler" -- slapped Bloomberg down pretty hard, calling the soda ban "arbitrary and capricious," which is legalese for bat-guano stupid. He rightfully pointed out that the rule, as written, had so many carveouts and exceptions that couldn't even be uniformly applied across the same block, much less across the entire city. More than that, however, the Tingler went even further when he declared that it wasn't up to New York's Board of Health to save citizens from their own nasty eating and drinking habits. If thou chooseth the death of a thousand Mountain Dew Code Reds, then so be it. The government has no compelling interest to stand in your way.
Bloomberg, of course, has vowed to appeal the decision. In his mind, and in the minds of his minions, sugary drinks lead to obesity and obesity is a public health hazard, because obese people end up suffering from all kinds of preventable diseases that result from their condition. Taxpayers, natch, end up footing large chunks of the bill (no pun intended) through Medicare and Medicaid -- so therefore the government does indeed have an interest in keeping you healthy. After all, we're only being responsible stewards of the public dime, right?
Ah, if only leftists felt that way about all spending. But I digress...
For the moment, let's accept Bloomberg's logic as sound. Toward that end, I say let's go all-out and take a real stand for public health -- starting with STDs. We all know the terrible toll HIV has taken on society, not to mention the scourge that is herpes, gonorrhea, chlamydia. I submit it's simply too dangerous to allow New Yorkers to make decisions about sex for themselves. And just like sugar, sexual activity needs to be regulated in order to prevent its abuse:
No sex shall be permitted without the use of a condom.
No person shall be allowed more than one (1) sexual partner within a twelve month period of time. Dispensations may be granted if both prospective partners submit to a full health screening prior to any sexual contact, with no more than two (2) dispensations to be granted in any calendar year.
In those limited circumstances in which sex will be used for the purposes of procreation, an exception to the condom rule can be granted by sending a written request to the Department of Health no less than three (3) weeks before the intended sexual encounters are to commence.
I'm sure that if New York mandates these rules for its citizens, we'll see a huge decline in STDs and a commensurate drop in the expenses related to treating these diseases. So how about it? Is New York ready to change from Sex and the City to No Sex in the City? After all, it's for the public good.
I'm sure Bloomberg will get right back to us on that.
June 29, 2012
An Equal and Opposite Distraction
Yesterday, the Democrats threw themselves a pretty good party. There were the usual suspects dancing with lampshades on their heads (the DNC's Patrick Gaspard: "It's consitutional. Bitches.") and streaking through the front yard (Obama himself: "Still a BFD."); but in the cold light of day, it appears as though a bit of a hangover has set in. Quoth Bill Nelson, the erstwhile Senator from my home state of Florida:
A lot of us feel the health-care law wasn’t perfect. But it was needed. Our system was broken and we had to do something. Insurance companies were refusing to cover people or dropping those who got sick. So, we passed legislation to prevent insurers from running roughshod over people. And today, the Supreme Court upheld most of these reforms. Now, I think it’s time we finish the job of fixing our economy and creating more jobs.
Move along, folks, nothing to see here.
I've actually heard a few Dems using that same talking point, about how we needed to "do something" about health care, as if this in and of itself is a noble act. Lost in translation is whether or not ObamaCare is the right thing to do, a question that Nelson never answers.
It's not surprising, though. Nelson is in a tight re-election race; and while he has to justify his original vote in favor of ObamaCare, he also has to face a lot of voters who are outraged over yesterday's Supreme Court ruling. Simply put, he wants to get on both sides of the issue.
I imagine you'll see a lot of Dems parroting this same talking point in the coming months. Personally, I'm thrilled. Charlie Crist tried it in 2010, and now he's doing late-night TV ads for an ambulance-chasing law firm.
If enough voters catch on, perhaps we can consign the rest of the Dem Senate majority to a similar fate.
June 28, 2012
Attack of the Robes - Updated, see bottom
Sigh. If only this set of Supremes had taken a cue from their Motown counterparts: "Set me free, why don't you, babe? Get out my life, why don't you babe?"
That's certainly the message the majority of the American public sent to Congress in 2010, when Republicans made historic gains and Democrats scratched their heads wondering how they could tailor their message to make Joe Sixpack understand that the dog turd of health care "reform" they had passed was really a chocolate truffle.
Alas, the Supreme Court -- Justice Roberts in particular -- seems to have missed the memo, if the legal calisthenics they just went through to uphold ObamaCare are any indication.
So a mandate to buy health insurance that isn't permitted under the Constitution's Commerce Clause is permitted under the tax code? That's a distinction without a difference -- or, as we say out here in the real world, bullcrap.
This should be an object lesson to any politician out there who lets bad legislation skate with the thought that the Supreme Court will straighten the mess out later. It didn't work with George W. Bush and campaign finance reform, and it didn't work this time with ObamaCare.
This should also be a lesson to everyone else who waited with bated breath for the court to make the right decision: never, ever count on the people in black robes to save the day. When you get right down to it, the Supreme Court just isn't that into you.
So what's left for us to do? Being a happy warrior, I don't believe that all is lost. However, we're gonna have to go all street on the Dems this fall if we want to kick enough of them out of Washington to repeal this beast of the realm known as ObamaCare. Mitt Romney, especially, will have to pound on the mandate really being a tax -- and making damned sure that people know that it's a regressive tax, one that will hit young voters and lower-income folks (in other words, Obama's base) the hardest.
Stay on target, everyone. Stay on target.
Dafydd adds: John Eastman, who holds the Donald P. Kennedy Chair in Law and is the former Dean at Chapman University School of Law, made a very interesting point on Huge Hewgitt today. The Chief Justice held that the ObamaCare mandate was constitutional because it really is just a tax, that is, a bill to raise revenue.
Now article 1, § 7, ¶ 1 of the United States Constitution reads:
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Given that the Patient Protection and Affordable Care Act of 2010 originated in the Senate, not the House, doesn't that mean that the individual mandate -- which Roberts held was a tax to raise revenue -- is still unconstitutional?
Should we have another round of courtyardery?
UPDATE 29 June: Commenter Baggi suggests that, while the bill appeared to have originated in the Senate, that body actually hijacked, removed, and replaced a House bill with the entire 2,700 pages of ObamaCare; if true, then technically the bill originated in the House of Representatives, as required.
This is not an issue into which I will delve deeply; the real problem is that Roberts engaged in what I have long called the fallacy of tendentious redefinition, taking something that is clearly a penalty (labeled as such throughout the act) and bizarrely redubbing it a tax, for no purpose other than to find a way to uphold the act by any means necessary.
This is what I expect from Justice Elena Kagen or Sonia Sotomayor -- not Chief Justice John Roberts. I'm beginning to squirm, wondering if this really is, at core, the early stages of Roberts "growing in office."
August 18, 2010
Update to Previous Post...
I have just read that the three-judge panel of the Ninth Circus will not be the same judges -- Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas -- who ruled in favor of a stay on Judge "Dredd" Walker's appalling diktat. I have no idea who the new panel will comprise.
But... I stand by my prediction that the panel, no matter who is on it, will overturn Judge Dredd's decision and uphold Proposition 8 and the traditional definition of marriage. If the panel comprises two liberals and a moderate (likely), or three liberals (plausible), the vote will be two to one. If it's three moderates or conservatives (hah), it will be unanimous.
August 17, 2010
Wild Prediction: 9th Circuit Panel Will Uphold Prop 8
Sometimes, you just have to go with your gut feeling, no matter how strange and irrational it may seem.
What is a gut feeling? For one, it's a misnomer: Mine at least are not based on "feelings" (and don't originate from my intestines) but represent a sudden premonition that X is going to happen, even when I cannot consciously see a logical path from here to X. But that doesn't mean one doesn't exist; often, after a few days, I can start to see the rational basis for the prediction... meaning it wasn't a "gut feeling" but rather a rapid, subconscious calculation from available evidence drawing a rational, if obscure, conclusion.
That doesn't mean my subconscious calculations are always right! But I generally see that they're not irrational, either.
In this case, I've had the gut feeling -- I mean subconscious calculation that the three-judge panel of the Ninth Circus hearing the appeal of Judge "Dredd" Walker's decision striking down California Proposition 8 and finding a federal constitutional right to same-sex marriage, SSM, hitherto unknown to the mind of Man -- a panel comprising one very moderate Republican appointee of Ronald Reagan, Edward Leavy, and two ultra-liberal, Democratic Clinton appointees, Michael Hawkins and Sidney Runyan Thomas -- will not only find that Prop 8 defenders have standing... it will actually uphold Prop 8 by a 2-1 decision.
(This prediction naturally supercedes my previous prediction that the three-judge panel of the Ninth will uphold Judge Walker's decision.)
I have refrained from mentioning this to anyone until I could figure out what my subconscious was telling me; but I think I have it now. I don't for a moment believe that either of the two Clinton appointees opposes SSM; for that matter, it's entirely possible the Reagan appointee also supports it, in theory.
But support for SSM is not necessarily the "issue" for any of these judges:
- Leavy, the Republican, may very well support SSM but nevertheless believe that voters have the right to vote the other way; that is, Leavy may very well take the same position as Patterico. If so, then he will vote to overturn Judge Dredd's decision and uphold Proposition 8.
- And either of the two Democrats may decide that SSM isn't the real issue... the real issue is the November 6th, 2012 election. If either arrives at that conclusion, he would likely decide that forcing SSM down the throats of the American West, hence potentially forcing it upon all of America, will so alienate moderate and independent voters that Barack H. Obama is defeated for reelection, and the Democrats are all but wiped out in in 2012, threatening many much more important liberal projects on the economic, social, union, and military fronts. It could be 1980 all over again.
Note that the decision can't affect the election this November -- though Walker's earlier decision can, will, and already is -- because the appeal will not even be heard until December. But judges, especially federal judges with life tenure, are much more forward-looking than congressmen, especially representatives, for whom two years is a lifetime. I'm sure both Clinton appointees expect still to be on the bench after 2012 (Hawkins is 65, Thomas is 57).
Yes, I realize I'm suggesting that one of the super-liberal Clinton appointees, Hawkins or Thomas, might decide a momentus constitutional issue on the corrupt basis of looming partisan advantage. What's your point?
I'm making my prediction, and I'm sticking to it. I may be wrong; but at least I now recognize that I'm not acting from emotion, not a "gut feeling," but rather some deep undercurrent of rational thought.
April 21, 2010
The Quiet Libertarians
The Supreme Court of the United States just issued a rare (these days) 8-1 ruling; even more interesting, Chief Justice John Roberts wrote the opinion -- and the lone dissenter was Justice Samuel Alito.
The facts are interesting but ultimately irrelevant, as the real issue is freedom of speech vs. propriety and empathy: A man who sold videos depicting animal cruelty, likely for a sick form of pornography called a "crush fetish" -- in which viewers are sexually aroused by seeing people crush various inanimate objects, invertibrates, and even live mammals -- was arrested under a 1999 federal law that made trafficking in such videos a felony. Robert J. Stevens was convicted and sentenced to 37 months in the stripey hole, but the 3rd Circus Court of Appeals (in Philadephia) struck down the law as unconstitutional in 2008; today the Supreme Court affirmed that decision.
It was a First Amendment case with a very unsavory and sleazy defendant, so it's no wonder the four Court liberals were on board. What is more surprising to veteran court-watchers is that all but one of the "conservative" justices were aboard as well:
Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the law had created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous."
Roberts held that the First Amendment prohibited such an over-broad law as this one on grounds of freedom of speech, though he did not rule out the constitutionality of a much narrower and more specific prohibition of crush videos depicting actual abuse of animals.
I suspect that forty years ago, a paleoconservative majority would have reinstated the law, for the very reason that the minority wanted it overturned: The conservatism of earlier decades saw nothing wrong with using government power to enforce traditional morality, customs, and traditions -- just as left-liberalism saw nothing wrong with using government power to tear down those same traditions, customs, and "repressive" moral codes.
But Justice Sandra Day O'Connor's retirement and the unexpected death of Chief Justice William Rehnquist, followed by George W. Bush's appointments to take their place (Alito and Roberts), triggered a sea-change in the Court's outlook. The four constitutionalist justices (Roberts, Alito, Antonin Scalia, and Clarence Thomas) seem to reject "big-government" conservatism, by and large, in favor of a sleeker, "small-government," libertarian vision of America -- one where the response to vile and depraved speech is not suppression but commonsensical, ethical, and rational speech:
It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January — concluding that corporations may spend freely in candidate elections — suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.
Roberts noted that the law was so vaguely written that it could apply even to ordinary hunting videos, since some areas of the country ban hunting. Roberts argues both slippery slope and unintended consequences; his bias is against banning speech of any kind, though as noted, he will accept bans that are very, very narrowly construed and precisely tailored. He opposes the open-ended prohibitions preferred by activist judges and justices.
Thus, the high Court has ruled by an overwhelming margin that freedom of speech covers even repugnant speech, so long as the speech isn't an integral element in the commission of an underlying crime... which sounds obvious but has all too oft been ignored, forgotten, or deliberately stomped into the dust by earlier courts, congresses, and presidents. Under one of President Barack H. Obama's Democratic predecessors, Woodrow Wilson, Congress even banned speech that was merely critical of the federal government.
Alito's dissent appears to be that the videos in question are integral elements in the crime of animal cruelty; but the law as written was so broad it would probably cover even animation, as well as Roberts' example of hunting videos:
The government argued that depictions showing harm to animals were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion. “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” he wrote.
The chief justice acknowledged that some kinds of speech -- including obscenity, defamation, fraud, incitement and speech integral to criminal conduct -- have historically been granted no constitutional protection. But he said the Supreme Court had no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
I very much like the trend. Combined with the Court's ruling in District of Columbia v. Heller, 554 U.S. ___ (2008) (striking down the D.C. handgun ban) and the Court's acceptance of certiorari in McDonald v. Chicago and NRA v. Chicago (which may "incorporate" the Second Amendment to state and local legislation), along with the aforementioned campaign-finance decision in Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), I believe we are on the brink of a new judicial era, where freedom, liberty, and personal responsibility supplant the current nanny-state. Under the ancien régime, even the possiblity of injudicious use of liberty led the powers and thrones to ban it in the name of public order.
I say hip hip, chin chin... and about bloody time. But the real test will come when the ObamaCare mandate comes before the Court. Never before has Congress passed a law ordering all Americans to purchase a specific product from a private (but government controlled) entity; I cannot imagine that such a blatantly unconstitutional law would not be found so by the four constitutionalist justices. But the big question, as always, is on which side of the bed Justice Anthony Kennedy, the swingin' justice, arose that morning.
If he agrees with Roberts, Scalia, Thomas, and (I am convinced) Alito that there is no grant of rights for Congress to order Americans to buy products -- what's next, a federal mandate to buy toothpaste, fruits and vegetables, and Che Guevera t-shirts? -- and the mandate is struck down, that's wonderful. But the victory will not be complete unless the decision is broad enough to put actual teeth into Article I, Section 8 of the Constitution, "the Powers of Congress": That is, it's only a great libertarian victory for America if the Court finally agrees that Congress cannot legislate in areas where it is not granted authority to legislate, even if it intones the magical spell, "regulate interstate commerce."
Making us buy insurance from companies forbidden from cross-state commerce cannot rationally be "regulating interstate commerce;" if the Left can get away with that sleight of hand, they can get away with murder. (Oh, wait -- I believe President B.O. recently ordered the summary killing of an American citizen, Anwar al-Awlaki, thought to be a member of al-Qaeda. And note that the previous sentence would have earned me a stretch in prison under Wilson's Sedition Act of 1918.)
If tyranny is a mental disorder like addiction -- the more you dictate, the more you need to dictate -- then the first step on the road to recovery is to strictly limit the authority of Congress and the president to meddle in every state and local issue that bubbles up, as of course the Founders intended when they ratified the Constitution in the first place.
I'm glad that the Court found for freedom of speech in this case, as evil as that "speech" (video) is; I'm certain that Congress can enact a more narrow ban that remains within the constitutional purview. But I'll save my real celebrating for when the Court routinely begins telling Congress, "you've overdrawn your account at the First National Bank of Authoritarianism."
Then perhaps the Court can turn its attention to the activist "beam" in its own eye.
Cross-posted on Hot Air's rogues' gallery...
January 13, 2010
Courting Intimidation: the Supremes Sing Out
A fast follow-up to the second of our two previous "Courting Intimidation" pieces:
- Courting Intimidation of Witnesses: the SEIU-ization of Liberalism
- Courting Intimidation: Supremes May Shut Down Cameras in SSM Case
In the second post linked above, we predicted that the Supreme Court was poised to make permanent its temporary ban on the cameras set to record all the proceedings in Kristin M. Perry v. Arnold Schwarzenegger (Perry v. Schwarzenegger); that is the federal case filed to (once again) overturn the repeated vote of Californios to define marriage in the traditional way, most recently in Proposition 8, which easily passed on November 4th, 2008.
We argued that the only purpose and result of the video broadcasting on YouTube would be to make all the pro-traditional-marriage witnesses easier targets for harassment, intimidation, vandalism, and assault, with an eventual eye towards terrorizing the "designated defendants" into fleeing the case, thus allowing those pushing same-sex marriage to win by default.
Today, we read this:
The Supreme Court voted 5-4 to block the broadcast of a federal trial in California testing whether a voter initiative against gay marriage violates the Constitution.
The high court's five conservatives formed the majority. They said federal judge Vaughan Walker didn't follow court rules when he ordered proceedings broadcast by closed circuit to federal courthouses in several cities.
The Supreme Court's four liberals joined a dissent written by Justice Stephen Breyer.
For the record, that would be Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito in the majority; Justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor dissenting.
Not only was our prediction correct, so too was our reasoning:
The proposition's defenders said broadcasting the proceedings could expose witnesses favoring the gay-marriage ban to harassment and ridicule. The Supreme Court majority backed that view, saying Proposition 8 supporters would likely suffer "irreparable harm" if the proceedings were shown through the closed-circuit feed.
The Court did not rule on the question of putting videos up on YouTube, saying the motion was "premature." They want to wait until the Ninth Circus rules on that first, but I suspect the same actors will line up in the same order if necessary.
We repeat our main predictions:
- U.S. District Court Judge Vaughn Walker (Bush-41) will certainly rule in favor of the plaintiffs, striking down Proposition 8, the citizens initiative constitutional amendment that restored the original definition of marriage. He has signalled over and over that he has already made up his mind, and the actual hearing is merely a show trial, a necessary evil before he can rule by decree.
The three-judge panel of the Ninth Circuit Court of Appeals will uphold Judge Walker's ruling.(2a) Judge Stephen Reinhardt will wind up on that panel and will write the majority opinion affirming Walker's ruling. (Yes, this one is specifically for Patterico!)
- If there is an en-banc hearing, the entire Ninth Circus will narrowly uphold the panel's decision upholding Walker's decree that voters in California have no right to enact state constitutional amendments that the Left doesn't like.
- The Supreme Court will accept certiorari on the case... and by the same 5-4 vote (though either Stevens or Ginsberg might by then be replaced by another doctrinaire liberal) will overturn the Ninth's ruling, restoring traditional marriage to California.
- Finally, this time there will be a stay on each ruling until the USSC makes its final ruling, so no more same-sex couples will be fortunate enough to slip through the cracks and get married.
We'll see how well we do. I believe that in the end, we'll have a Supreme Court ruling that nothing in the U.S. Constitution mandates same-sex marriage.
Keep watching the skies.
January 12, 2010
Courting Intimidation: Supremes May Shut Down Cameras in SSM Case
In the long-running soap opera "As the Marital Definition Turns" -- that is, the case underway in federal court in San Francisco, where plaintiffs are trying to overturn the initiative constitutional amendment Proposition 8 that re-re-established traditional marriage in America's biggest state -- I reported a couple of days ago that the judge in the case, U.S. District Court Judge Vaughn Walker (Bush-41), had decided that it would be just dandy to have cameras rolling all through the trial, so videos of the pro-traditional-marriage witnesses could be circulated on YouTube... probably as "wanted" posters.
Given the Left's recent history, I concluded that the most likely outcome would be a vicious cycle of witness intimidation that might even cause the "designated defendants" to drop out of the case (as one, Hak-Shing William Tam, is already petitioning to do). Since both Gov. Arnold Schwarzenegger and California Attorney General (and former governor) Jerry Brown refused to defend the amendment, despite it having been enacted by a clear majority of California voters, the proponents of Prop. 8 were forced to ask the court to allow them to defend it. Otherwise, the enemies of the proposition, proponents of same-sex marriage (SSM), would simply win the case and overturn the will of the people by default.
That still could happen, if all the designated defendants are driven out. But that's a little less likely now, for the United States Supreme Court stepped in with an emergency order to prevent the cameras from being turned on. The order lasts only until tomorrow at 4:00 pm court-time; but clearly the Court intends to issue a final ruling on a permanent injunction before then:
The Supreme Court on Monday temporarily blocked a federal judge's decision to allow cameras in the courtroom during the trial on the constitutionality of California's same-sex-marriage ban.
The court's order will remain in effect until 4 p.m. on Wednesday to allow the justices more time to consider the issue. That means the Perry v. Schwarzenegger trial, which began Monday, will have proceeded for three days without being broadcast or videostreamed to news outlets and Web sites such as YouTube.
The only justice objecting to the temporary order was Stephen Breyer, one of the most activist of the left-liberal justices. To me, that's a good sign.
I have high hopes that at least five justices will see the obvious danger of witness inimidation, harassment, vandalism of property, or even physical assault -- given the history I alluded to earlier -- and rule that the experiment of televising federal court cases should not commence with such a contentious issue, about which so many people have such strong, even hysterical positions. Without cameras, the trial should proceed as expected -- to an obviously pre-ordained victory for the plaintiffs; Judge Walker has made his own pro-SSM activism quite clear.
Then we can have the inevitable appeal to a three-judge panel of the Ninth Circus, to an en banc hearing of the entire Ninth, and ultimately to the USSC.
As usual, I expect the camera order -- and the final case, whenever that gets to the Court -- will hinge how Justice Anthony Kennedy feels that day. Let's hope he doesn't have a bad bout of indigestion when it comes time to vote.
January 9, 2010
Courting Intimidation of Witnesses: the SEIU-ization of Liberalism
A trial starts Monday in San Francisco that could overturn the will of the people in 45 of the 50 states; U.S. District Court Judge Vaughn Walker (Bush-41) will preside over a federal court case that seeks to overturn Proposition 8 in California -- the state initiative constitutional amendment that itself overturned a California Supreme Court ruling foisting same-sex marriage (SSM) on America's biggest state.
And Walker is stacking the deck: He has already ruled that the trial will be videoed and the videos put up on YouTube, so that radicals will know who to assault. And now, one of the "designated defendants" supporting Proposition 8, Hak-Shing William Tam, is asking to be released from the case, saying he's already suffered death threats and harassment, vandalism, intimidation, and threats to his family:
On Friday, Tam told the court that he was harassed and his property vandalized during the campaign, and feared similar retribution if he continued to represent gay marriage foes' interest in the lawsuit and trial, which is scheduled to start Monday in San Francisco.
''In the past I have received threats on my life, had my property vandalized and am recognized on the streets due to my association with Proposition 8,'' Tam said in a court filing. ''Now that the subject lawsuit is going to trial, I fear I will get more publicity, be more recognizable and that the risk of harm to me and my family will increase.''
Say... if they can just succeed in pushing out the other four designated defendants the same way, the defense will collapse for lack of a defendant, and SSM wins by default! (You don't think this could be, you know, the strategy... do you?)
The forces of liberalism have already done some deck-stacking of their own: When the case was first filed by a couple of SSM activists, both California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown (the former governor) declined even to defend the state's law, passed with a clear majority by the citizens of California. Both men are strong supporters of SSM; so I can only conclude they were hoping that by refusing to defend the case, SSM would be ushered into California law regardless of what the so-called "people" want.
As H.L. Mencken is reputed to have said -- or written -- or thought up -- or wished he had thought up -- "If the government doesn't trust the people, why doesn't it dissolve them and elect a new people?"
Schwarzenegger is a particular disappointment. A couple of years ago, after Proposition 22 (defining marriage to be between a man and a woman) had passed overwhelmingly, the radical-Left California state legislature passed a same-sex marriage bill anyway -- essentially telling voters to take a long walk off Fisherman's Wharf. At that time, Gov. Schwarzenegger vetoed the measure, saying that, while he personally supports SSM (he's a Hollywood conservative, recall), the people had indeed spoken.
Now he tries an end-run around those same people's vote, this time on a state constitutional amendment. Perhaps he got tired of sleeping on the couch.
The liberal elites on the California Supreme Court overturned Prop. 22 (In re Marriage Cases (2008) 43 Cal.4th 757), mandating SSM; and the court ordered it to begin almost immediately, even though Prop. 8, which would make traditional marriage part of the California state constitution, was already on the ballot and seemed likely to pass. The justices must have known the chaos that would (and did!) ensue; evidently radical liberalism triumphed over stability and voters' respect for their civic institutions, as the majority flung both in the dustbin.
Prop. 8 won, of course; but not before some 18,000 same-sex couples were legally married. In May, the California Supreme Court held Prop. 8 to be a valid constitutional amendment; but it also held that those same-sex marriages performed during the brief "window" that the court itself deliberately created were likewise valid.
Monday's lawsuit is a liberal attempt to revive the failed lawsuit against Prop. 8 by refiling it in federal court; evidently the theory is that California's constitution -- which explicitly bans discrimination on the basis of sexual preference -- is no barrier to the people defining marriage in the traditional way... yet the federal Constitution, with not even a mention of sexual preference, nevertheless mandates SSM for every state!
I suppose it makes sense to the Left. And it especially makes sense with Walker's decision about YouTube videos: A new strategy of harassment and intimidation is added to the arrows in the quiver of those who despise traditional marriage as hopelessly Mediaeval.
We've all seen how other liberal shills, such as the Service Employees International Union (SEIU), "persuade" conservatives to abandon their arguments; remember the video of SEIU thugs beating black conservative Kenneth Gladney last August at a town-hall meeting in South St. Louis County, Missouri?
Gay activists have already demonstrated their eagerness to “punch back twice as hard” against conservatives, as Barack H. Obama's deputy chief of staff, Jim Messina, exhorted a few days before Gladney's beating. As Big Lizards reported in October, activists in Washington state have resorted to trying to publish all the names of the ordinary voters who signed a petition against SSM -- painting them all as bigots, Christians, and homophobes, and of course setting them up for harassment, intimidation, or worse:
But here is where things get creepy: In response to the petition that put Referendum 71 on the ballot, gay activists have become obsessed with "outing" everybody who signed it -- publicly printing not just their names but their addresses as well. They even wanted to put all the personal information on the internet, so it would easily be searchable by anybody who suspected his neighbor might be insufficiently tolerant.
Activists claim they are only trying to exercise the state's "public records disclosure law;" but it's hard not to come away with the sick feeling that SSM proponents are hoping that friends and neighbors of the petition signers will punish them for their apostasy, especially if they live in a liberal (or gay) neighborhood. That is, I believe the legal fight to release the signers' names and addresses is a transparent attempt to intimidate and frighten them into not signing any future petitions.
How many witnesses will be eager to expose themselves as targets for radical gay-rights activists? How many would have their lives turned upside down, their employers called with bogus complaints, their children threatened and perhaps beaten-up in school... and at the very least, how many will suffer humiliation as their religious and political beliefs are "explored" in court -- by professional mockers and denigrators?
In the months leading up the trial, lawyers for two unmarried same-sex couples on whose behalf the case was brought complained that Proposition 8's sponsors were withholding evidence to which the plaintiffs were entitled by citing a letter they had uncovered written by Tam to members of his church during the campaign.
In the letter, Tam outlined what he described as the disastrous consequences for allowing gays to marry in California.
''One by one, other states would fall into Satan's hands,'' he wrote. ''Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals.''
The contents could come up in the trial because one of the issues is whether the measure's backers were motivated by anti-gay bias.
Tam's personal religious beliefs are quite mainstream among conservative Christians; and in any event, they are utterly irrelevant to the case: The initiative was passed by literally millions of voters, not personally by Mr. Tam. Yet the liberals at the Associated Press implicitly identify those beliefs with "anti-gay bias," and want the entire amendment overturned because at least one of its authors was a -- a Christian.
The Left holds up Hak-Shing William Tam as the poster-boy of wacko, far-right, homophobic, bigotted Christianity; and come Monday morn, anybody who missed that characterization in the New York Times and the scores of other newspapers that take AP's feed can watch, via YouTube, the plaintiffs call him all those names to his face.
Gee, I wonder why he now wants out? And what a wonderful way to hold an unbiased trial.
I'm sure Judge Walker will "kindly" let Tam out of the lawsuit; and with that example, I'm sure the pressure on the other four designated defendants will mount. In the liberal utopia, they too would all cave... and the radical-gay agenda to destroy marriage would win by intimidation... which appears to be the liberals' favored means anyway.
(Like Professor Fate in the Great Race, they're not interested in winning our way, by persuading voters; they want to win their way, by dirty, mean, underhanded tactics. I think it gives them an extra frisson of pleasure to know that they scared us into silence. Makes 'em feel powerful.)
I hope the other four defendants have more guts than Mr. Tam. I would be happy to volunteer, but I live outside that court's jurisdiction.
Besides, while Judge Walker will doubtless be pleased to allow any defendant who quakes in his boots to leave the case, I doubt he would be interested in allowing anybody more steadfast to join it: That doesn't fit the storyboard of "rats fleeing the sinking ship" that he evidently wants to tell.
January 7, 2010
Voting Rights for Felons: Presto Retro!
Patterico has posted on this topic as well -- the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer's, and especially a prosecutor's point of view; and in his post, he dressed me down a bit for my previous post here... or so it seemed to me. Patterico writes:
Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.
I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.
My response may be solitary, poor, nasty, and brutish; but at least it's not short!
The first charge is certainly correct; at the time I wrote the post, I didn't have the decision available to me. I couldn't even find the name of the the third judge (turns out to be Stephen Reinhardt, a name not unknown to many of us).
But to say I have "failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring" is only true in the narrowest of meanings: While I didn't grapple with these particular studies by those particular sociology professors, I have been "grappling" with identical claims by interchangeable sociology and criminology professors for more than twenty years!
I wasn't born on the turnip truck yesterday.
And I've learned it's a complete waste of time, because the studies they produce are just a beard for the real function, which is to find a friendly judge or panel, as they did here, and give them any slightest hook to hang their ideology... which they also did. Professors Crutchfield and Beckett could have introduced a wind-up monkey with a plastic banana as their sole exhibit, and Judges Stephen Reinhardt and Wallace Tashima would have given in to their inner guilt and ruled the same way. We were preaching reason to the asylum choir.
The fact is that none of these claims is new. Each has been made, then debunked, in one form or another, in service to one crank liberal "reform" or another, since the dawn of all time (that is, the 1960s): that a racial disparity in measurement X -- incarceration, conviction, trial, arrest, or search -- proves unlawful and intentional racial discrimination by some or all elements of the justice system.
In the very beginning, the anointed were content to point to any racial disparity at all. When evidence mounted far past the "overwhelming" stage that, contrary to liberal dogma and utopianism, people from different cultures do indeed commit crimes at different rates, the anointed realized they had to give some ground.
Ever since the 1980s, when I first began debating this issue in bulletin boards (anybody remember those?), the pro-reform side of academe has followed the same pattern:
- The new researchers cite previous researchers who found no discrimination -- and dismiss them as naive or bought off.
- The new researchers admit that some of the racial disparity can be explained by real differences in behavior... that is, not by direct racial discrimination; this makes them look reasonable and sets you up for the Fool's Mate.
- But, they argue, not all the discrepency can thus be explained (to their unattainable satisfaction) by proper and legal responses to real differences.
- Therefore, they conclude, the remaining "gap" must be due to racial discrimination. There's no other explanation, at least none they will consider.
It's very effective, particularly on kritarchs drunk on their own power, just itching for a chance to implement divine judicial controls, enforcing radical liberalism.
I didn't have access to the particulars of this specific batch of anointed; but even if I had, I still wouldn't have bothered "grappling" with their precise claims, because that's not the problem. And my reasoning is almost certainly similar to that of the state's attorneys, and why they didn't go into the specifics of the studies, either: At core, this case hinges on principles completely independent from choosing one of two competing answers to a controversial and active scientific question.
Diving headfirst into the steaming vat of statistics is a mug's game, because it begs the real question. There is literally nothing anyone could say, no evidence that could be produced, that would persuade the plaintiffs that policing and the courts were not citidels of segregation and redoubts of racism: It is part of their fundamental-materialist religious faith.
When setting public policy on vital democratic issues related to scientific questions (hello, global warming), there are always three considerations -- threshold conditions, actually; and none covers what I think Patterico suggested I should have done:
- Is the science settled? E.g., is there a scientific consensus among criminologists and sociologists that the criminal justice system in Washington is inherently racially discriminatory, violating the rights of legitimate voters?
- If so, then what options exist to alleviate the problem? In this case, what can Washington do to bring itself into compliance with federal standards and its own state standards of racial neutrality?
- Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people? In this case, if people are being wrongfully disenfranchised, what is the least disruptive way to let the actual victims start voting again?
(Sorry for all the bullet points, but some arguments really lend themselves to such constructs.)
Alas, I don't think there is a very good match between the questions above, which should inform all major policy decisions, and the demands of a federal court trial, which is an adversarial exercise in which one side generally wins and the other loses. That's too bad... because in fact, not a single one of the three threshold conditions above is satisfied (and all three need to be). Moreover, when the thresholds are not met, the judiciary has no business interfering in public policy... even apart from any great principles of freedom that trump the scientific quibbling.
Now, if a particular prisoner wants to argue that his personal voting rights were violated, let him make that claim and duke it out in court. That would at least be a judicial task.
But instead, the question that the court considered (and ruled in favor of) was grotesquely anti-democratic, collectivist, and, to put it bluntly, profoundly unAmerican: Not whether the voting right of any particular prisoner was violated, but whether the rights of all blacks and Hispanics in Washington state were violated.
And the substance of the "right"? Why, the right to have the votes of all blacks and Hispanics, law-abiding and convicted felon alike, count for the Democrats. I won't mince words; the liberal-activist Democrats want more electoral victories, and they think this will do it.
It's the Lani Guinier Conundrum: Does a bloc of voters have the right to win a certain percent of the time? In 1993, Bill Clinton nominated Guinier to be Assistant Attorney General for Civil Rights. Her nomination ran into a buzzsaw in the Senate and was eventually withdrawn.
She believed that indeed yes, blocs of minority voters -- specifically blacks and Hispanics -- had a right to win, even when they were in the minority; otherwise you have a "tyranny of the majority," she argued in the book of that title. (The hidden racist assumption is that all "minorities" think alike... or at least they should!) Thus, Guinier supported various weighting schemes to make each minority vote count for more than each of the votes of the majority. (She had to have assumed, again, that each class would vote its "class interest.")
I'm convinced that is precisely why the present case was brought: Not that the plaintiffs really cared that felons be allowed to vote, but that they assumed that a big, new bunch of black and Hispanic voters previously disallowed from voting would, when finally unleashed, vote solidly liberal-Democratic.
(Patterico notes another point: Many prisons are sited in rural areas, not in the midst of huge population centers, for obvious reasons. Thus, that "captive audience" of voters would exert a super-heavy, possibly determinative influence over local elections about local issues. In my opinion, they could practically take over small towns!)
I haven't forgotten the three questions above; we'll get back to them. But we're still dealing with the fundamental principles, and why the specific claims of liberal sociologists are actually irrelevant.
We have a fundamental principle in the United States; and that is that "rights" inhere in individuals... not factions. It does not matter how a right will affect the results of an election; freedom of speech applies to all, not just favored constituencies; either every individual has the right or none does.
In this case, no individual legal voter is denied his right to vote merely because a convicted felon with a similar skin color has lost his right to vote. My voting right is intact, even though white convicted felons housed nearby must sit out the election. However much the faction of liberal, black and Hispanic Democrats may wish they could scavange a few more votes from the prisons and among those felons who have served their time, they have no "right" to those votes.
The hyper-principle here is that the Voting Rights Act was never meant to hand more power to a particular voting faction; it was meant to protect each individual from being wrongfully denied his constitutional and state-constitutional right to cast a vote. It no more violates the voting right of a legal voter to disenfranchise convicted felons than it does to disenfranchise children, non-residents, aliens, or those who do not register to vote.
To say otherwise is to say that everyone can vote... mewling infants, alien serial killers, foreigners living abroad, and the dead. (But if the dead aren't allowed to vote, how will Democrats ever win another election in Illinois, Louisiana, or New Jersey?)
That is why it literally should make no difference whether the judicial system in Washington state is racist, because the remedy plaintiffs sought (and the Ninth Circus granted) was wild overkill, and a complete non-sequitur:
- If plaintiffs could prove that blacks and Hispanics were being convicted of bogus charges in order to prevent them from voting, then they should bring a case to release those particular blacks and Hispanics and expunge their convictions.
- If plaintiffs could prove that blacks and Hispanics were being frightened away from the polls by a latter-day Bull Connors, then they should bring a case to prevent the police from doing so, and perhaps award damages to the actual victims.
But under no circumstances should the "remedy" be to allow all felons, willy-nilly, to vote, because that is not even the problem they allege. The problem they allege is that the justice system is racially discriminatory, not that it's unconstitutional or illegal, as a general point, to suspend or eliminate a felon's voting rights (along with his right to possess firearms, his right to join the armed services, and so forth).
The proof is simple: If they were asserting a general right of felons to vote, then why bring up racial discrimination at all? If a felon has such a right, then he has it whether he is black, Hispanic, Asian, American Indian -- or white; and whether he is incarcerated in a city that has a discriminatory justice system or one whose justice system is squeaky clean, even by Stephen Reinhardt's standards.
By relying on claims of racial discrimination and the Voting Rights Act, plaintiffs admit that they only assert that some felons have the right to vote, not every felon everywhere; some felons are more equal than others. A black felon housed in Massachusetts has no such right; but if he's transferred to a prison in, say, rural Georgia, where the justice system may be racially discriminatory, then he would suddenly gain the right to vote -- even if he were never detained, searched, arrested, tried, or convicted in that county. Quelle surprise!
That is why I didn't even bother examining the claims of racial discrimination in the Washington justice system: As Perry Mason would say, because it's irrelevant, incompetent, and immaterial... and that is the part of this debate that has not changed since the 60s (when the lunacy began), nor since the 80s (when I began debating the lunatics).
All right, with the principles clarified, we could stop right there; we don't reach the question of the science. But we're not a court, so we can still ask those three questions about this particular issue. In case you've forgotten in all the excitement, here they are again:
- Is the science truly settled?
- If so, then what are all the options available to the state alleviate the problem?
- Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people?
On the first question, no, the science is obviously not settled, because many criminologists and sociologists argue that the justice system is not inherently racially discriminatory; as Patterico notes, the plaintiffs' experts actually cite some of those disagreeable dissenters.
"Not settled" guarantees that somebody is wrong here. It doesn't guarantee anybody is right; in theory, everyone could be wrong! But at the least, the anointed reformers could be wrong; the scientific method will have to sort it all out... assuming it's allowed to function, unlike the Climategate fiasco.
So far as I know, Patterico is not qualified to mediate between competing scientific claims about racial disparities and racial discrimination. Certainly neither am I, despite my math background; the intricacies of the science are well beyond me. But neither is either Reinhardt or Beckett; so where do they get off, ruling that Crutchfield and Beckett had better science than other researchers who found no illegal discrimination? Has either robèd gentleman taken even a single university-level course in statistics?
For an encore, Reinhardt and Tashima will issue a legal opinion on the Continuum Hypothesis, whether an infinity exists strictly between ℵ0 and ℵ1; the mathematical world waits with baited hook.
As I noted last post, all criminologists (including those hired by the plaintiffs in this very case!) agree that people from different cultures do indeed have different crime rates; the only disagreement is whether that behavior completely explains the conviction discrepency. Ergo, there is no consensus that the system is racist, and the very first threshold condition is not met.
Mind, all three must be met before it's legitimate for judges to monkey with voting or legislating. The anointed reformers have already lost the argument (though not the case, alas, at least not yet). But in fact, they lose on both other points as well:
They failed to enumerate all the available options, or even all the obvious ones. For example, they didn't suggest that each convicted felon's case should be reviewed, and voting rights granted only where a significant likelihood exists that the convict was railroaded due to racial discrimination. Why should a white convict caught red-handed robbing a Tofu store have his voting rights restored? What does that have to do with the plaintiffs' race-based theory of the case?
Finally, nobody has claimed, not even Patterico, that the majority judges weighed several options for dealing with the supposed racism within the justice system -- then picked the least disruptive of them all. I conclude a complete lack of parsimony; they jumped right to the most radical "remedy."
See? I didn't forget.
So the long and the short of it [hah, try and find the "short"!] is that I didn't grapple with the specifics of the claims by the anointed reformers because it's a dead-end detour; it has nothing to do with what's so wrongheaded about this decision. The scheme is as old as dirt, and I figured out a long time ago that there is never any closure arguing with people like Professor Crutchfield: He'll let you horse him around from one inconsistency to the next; then when you get tired and wander away, he'll loudly declare victory.
I went straight for the rhetorical jugular, the unAmericanness and radical nature of this decision. I have no regrets.
Cross-posted on Hot Air's rogues' gallery...
January 6, 2010
Voting Rights for Felons: "Race Neutral" = Race Biased
In an astonishment of paralogia and "dumbth," a three-judge panel of (what else?) the Ninth Circus Court of Appeals has just ruled, 2-1, that felons should be allowed to vote, even while still in prison.
To add collectivist offense to insult (they went long past mere injury), their reasoning was so racially byzantine that it sounds like a parody: A greater percent of blacks and Hispanics are incarcerated than whites; therefore, depriving these felon convicts the right to vote from their prison cells violates the 1965 Voting Rights Act!
"I can hear the cuckoo singing in the cuckooberry tree..."
Say -- wouldn't the mere fact that blacks and Hispanics are jailed at greater percentages than whites all by itself violate the 1964 Civil Rights Act ban on segregation? Let's mandate that all races be incarcerated at exactly the same percentage as their representation in society: We let all the excess blacks and Hispanics go free, and send an appropriate number of whites and Asians to prison to balance it out, even if they haven't been convicted of any crime. Sounds like a natural extension of the court's reasoning to me.
(This is a non-trivial analogy: The reasoning of this panel is that the punishment violates the Voting Rights Act because, due to black and Hispanic overreprepresentation in prison, those federally defined races suffer a "disparate impact." But by the same logic, if blacks and Hispanics are incarcerated at a greater rate than their numbers in the population, that too is a "disparate impact" that dictates where people are allowed -- or in this case, required -- to live on the basis of race. I'm certain the next step is to do just what I sarcastically suggest in the paragraph immediately above.)
The majority decision was written by Judge Atsushi Wallace Tashima, who was first nominated to the bench by Jimmy Carter in 1980, then elevated to the Ninth Circus by Bill Clinton in 1995 (confirmed in 1996); the dissenter -- she wanted it remanded back to the courts to consider whether this calamity of non-voting felons was mitigated by a recent Washington state law making it easier for felons to recover their right to vote after finishing their sentences -- the dissenter, Margaret McKeown, was nominated by Bill Clinton in 1997. (I cannot find the name of the concurring judge.)
Here's the court's reasoning, from SFGate, based in San Francisco:
In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state's legal system: arrest, bail, prosecution and sentencing.
If the ruling survives, it will be binding in the circuit's other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.
About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.
Among those in Washington state who commit crimes, "minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted," Judge A. Wallace Tashima said in the appeals court's majority opinion.
For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.
Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.
It's an odd kind of racism, however, that discriminates against blacks and Hispanics but in favor of Asians, who are so underrepresented in prison that they're routinely excluded from all statistical analyses of the prison population by race. This despite the fact that racial discrimination against Asians has a long history in the United States going all the way back to the mid-19th century. (American Indian is a separate category in our "race-neutral" federal taxonomy of race.)
It will probably be struck down anyway by the Supreme Court, if not by an en banc hearing of the Ninth:
A state appeals court in San Francisco upheld California's voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.
"Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison," said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. "If you do, you are going to be denied your right to participate as a full citizen in our society."
Nevertheless, let's pick through the detritis of legalisms the court appears to have relied on in this wretched decision, propositions so risible that only a lawyer could argue them. It won't take long (compared to reading Tolstoy):
Blacks are "disenfranchised" at a rate not proportionate to their numbers within the jurisdiction of the Ninth Circuit Court of Appeals; this clearly proves the entire justice system is racially discriminatory.
The assumption here is that all races, cultures, sexes, ethnicities, and nationalities should logically commit crimes at the same rate; thus, we would expect black teenagers living in Compton or Watts (or whatever the equivalent ghetto is in Washington) are no more likely to commit a felony than a Japanese-American soccer mom living in Beverly Hills. Ergo, if we find that more inner-city black youts per capita are imprisoned than Asian mothers of middle-school kids, we've proven illegal discrimination.
Anyone who accepts such a line of hooey is a dolt, robes or no robe.
Clearly, different races have different propensities towards crime. I do not believe this is due to genetics; rather, the cultures they have grown up in and voluntarily internalized "enable" wicked, evil, criminal behavior more than do other cultures. (And yes, before you ask, I have indeed read the Bell Curve and find many of their arguments unpersuasive.)
For example, the statistical tables for the 2006 National Crime Victimization Survey, conducted annually by the Justice Department's Bureau of Justice Statistics, finds (Table 40) that blacks account for 31.7% of all completed violent crimes (single offender), including 42.2% of all completed robberies and 50.8% of all completed robberies with injuries.
Yet a quick glance through at the U.S. Census numbers for 2006 shows that blacks make up only 13% of the population (which is likely an overcount, since it's based on self-report). Even accepting this probably exaggerated figure, that indicates blacks commit violent crimes at a rate two and a half times more than their percent of the population; they commit robberies at three times their numbers; and they commit robberies with injuries to the victim at a rate four times their numbers.
Every criminologist will tell you the same thing: Blacks and Hispanics commit more violent crimes per capita than do whites; though ideologically reassuring for some, the axiom of "cultural equivalence" falls apart in the real world. Thus merely citing "disproportionality" proves nothing about causality.
(For that matter, 93% of those imprisoned in 2008 were male; isn't anyone going to investigate the "obvious" sex discrimination against men?)
Minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted.
Searched: If the victim describes his attacker as black, Hispanic, or Asian, shouldn't the police focus their searches on people who at least meet the description? Or should they stop and search white senior citizens, even when the victim says he was robbed by a young black male, just to even things out? This is lunacy.
Arrested, detained, prosecuted: Police arrest or detain suspects when their investigations find evidence supporting an arrest or detention. If the court wants to rule that racism pervades "the system," shouldn't they at least point to evidence that, say, blacks found with crack cocaine are routinely arrested, while whites found with crack cocaine are routinely set free?
If there was any evidence of such, I strongly suspect it would have been reported by somebody; yet I read nine separate articles and found no reference to any such evidence.
Minorities are more likely to be convicted than whites who commit crimes, and more likely to be incarcerated if convicted.
The SFGate article didn't mention anything about conviction rates or sentencing, but that must (by definition) explain the "missing" percent to account for the higher rate of incarceration of racial minorities than whites. There are a number of non-racially discriminatory reasons why certain minorities could be convicted at a rate higher than whites (and much higher than Asians):
- Type of crime -- Some felonies, such as robbery, are more easily prosecuted than others, such as confidence games, burglary of unoccupied buildings, or insider stock trading, due to the differential impact on a jury of eyewitness testimony v. forensic testimony. Blacks and Hispanics commit violent crimes at a rate higher than whites, but whites probably commit nonviolent crimes at a higher rate than do blacks. Put the two together, and you have part of the incarceration answer.
Poverty of defendant -- It seems self evident that people with money stand a better chance of being acquitted, or if convicted, a better chance of avoiding prison time, than poor people; quality of representation plays a huge role at trial (duh). It might be unpleasant to realize that the rich get off in situations where the poor, with their court-appointed attorneys, get jugged... but it is not due to race, as the O.J. Simpson trial proved.
A lower percent of blacks and Hispanics than whites and Asians are able to afford a high-powered attorney. But if that is now "evidence" of racial discrimination in the courtroom, then we may as well say that the undeniable fact that a greater percent of whites than blacks can afford big houses "proves" racial discrimination in the real-estate market. What next -- must we have racial quotas for mansion ownership? Let's just ban all private housing and make everyone live in identical, government-owned shoeboxes.
- Attitude at trial -- Do we know for sure that black and Hispanic defendants are no more likely than whites and Asians to have a truculent, belligerent demeanor, leading juries to be more likely to convict them? I sure don't, and it doesn't seem facially obvious to me that childhood and adult-selected culture would have no effect on how a defendant acts during his trial. Again, combine the two, and you have defendents of certain races sabotaging their trials by their own aberrant behavior.
- Defendant's plea -- The BJS reports that of those defendants sentenced for a criminal offense in 2006, 94% pled guilty. But how does that break down by those sent to prison and those given probation or just a fine? Is a defendant more likely to go to prison if he pleads guilty, or if he pleads not guilty and vigorously contests conviction? If the former, as I believe if it, and if blacks and Hispanics were more likely to plead guilty than whites and Asians, that too would trend towards explaining why some races are overrepresented in prison.
- Prior convictions -- I haven't seen any statistic on how many blacks and Hispanics have prior convictions versus how many whites and Asians; this can certainly affect whether the convict is sentenced to prison. Where is the study on this question?
There are five confounding factors just off the top of my head, ten minutes' thought. No story I've read has raised a single one of these factors; evidently, they don't fit what Andrew Breitbart calls the "story-board" of this issue -- the comic-book tale that journalists really want to tell -- and all facts will be tortured until they surrender to it. In this case, the story-board is summed up by some jerk at Newsweek:
But the issue of prisoners participating in our democracy buries the real news in the decision. The court threw out Washington's law because its criminal-justice system is biased against minorities. The problem isn’t with disenfranchising prisoners, it’s with a state legal system that unfairly throws so many people of color in prison that their voting power is diluted.
This is followed by a slavish recitation of the statistical "proof" of discrimination, about which seldom is heard a discouraging word.
What it really boils down to is that the burden of proof should be on those claiming the entire justice system is riddled with racism... not on the rest of us to "prove" that racial discrimination (by whom?) didn't play a role in some black mugger with mutiple priors being sent to the Concrete Mama in Walla Walla.
Let's swing back to the Fox News story for a moment; this is the quotation that fired me up to write this post:
The two appellate judges ruled that disparities in the state's justice system "cannot be explained in race-neutral ways."
What do they mean by "race-neutral?" I think it's pretty clear that they demand that all races commit crimes in lockstep with their percent of the population. When that doesn't happen, they immediately see racism as the only possible explanation.
Today, their solution is to allow imprisoned felons, who have shown contempt for the law, to vote on who will create those laws; that is, to remove that punishment for crime. But tomorrow it may be, as I suggested, to simply force the prison system to precisely mirror the racial makeup of the country... no matter what disparate impact that would have in the real world on whites and Asians accused of crimes.
But there is a deeper, even more insidious racism in this case, and it oozes from every pore of the majority: By ruling that denying voting rights to convicted felons discriminates against minorities in general, two judges are equating felons of all races with the entire minority population. It's as bad as saying an entrance exam for getting into university "discriminates against blacks." Why, because blacks are known to be unusually stupid?
How stunningly offensive. Crikey, what a horrendous calumny that is on the honest, law-abiding, minority population of the entire western United States.
How does Los Angeles Mayor Antonio Villaraigosa feel to learn that anti-punishment radicals equate his voting rights with those of convicted felons, or argue that Villaraigosa is statistically "more likely" to be sent to prison than, say, San Francisco Mayor Gavin Newsom? I would be hopping mad.
This entire decision of the Ninth Circuit is based upon collectivist reasoning, seeing every person who happens to be black or Hispanic as nothing but a representative of his race, felons an all. The court gives no weight to the individual choices made by free individuals in a free society; it's a vile, despicable worldview that has more in common with Jim Crow than with the Voting Rights Act.
The best defense against racism -- the ultimate collectivism -- is not more collectivism, but rather treating people as individuals. Alas, I suspect it will be a long, long time before the Ninth Circus dips a toe into such a radical pond as individualism.
Cross-posted on Hot Air's rogues' gallery...
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...
March 6, 2009
California Supreme Court Justices Will Decide Whether They or the People Get to Decide on Same-Sex Marriage
The California Supreme Court (CSC) heard oral argument (no jokes, please) on the constitutionality of Proposition 8, the initiative constitutional amendment that overturned a 2008 CSC ruling that had itself overturned a previous initiative, 2000's Proposition 22, restricting marriage to a union between one man and one woman.
When voters enacted Proposition 22 eight years ago, they merely reaffirmed what had been the law in California ever since it was incorporated as a state in 1850; prior to 2008, same-sex marriage was never valid or allowed here.
There are three questions at issue in the current CSC case:
- Was Proposition 8 legally placed upon the ballot as an initiative constitutional amendment?
- Does it violate California's "separation of powers" constitutional doctrine?
- If the amendment is upheld, how does that affect the 18,000+ same-sex marriages performed during the few months between the imposition of the CSC's decision and passage of Proposition 8?
The bits we don't care about
Issues (2) and (3) are ancillary to the main event. I have yet to see any discussion of how Proposition 8 supposedly violates separation of power. For heaven's sake, it simply defines marriage!
Is the argument that only the courts should get to do that, not the legislature or the citizenry, who write the laws the court supposedly interprets? I cannot imagine anyone taking that suggestion seriously. In any event, nobody seems to be writing about it, so I really can't comment.
And the third point above -- how Proposition 8 affects those same-sex couples who married in the brief window of opportunity -- is irrelevant to the state and country as a whole, however vital it may be to the individuals involved. If the CSC chooses to allow them to remain married -- which seems quite likely to me -- it's only out of compassion, not principle: The court simply feels sorry for the victims of its own malfeasance.
(It wouldn't violate the equal protection clause of the federal or state constitutions, because it's not based upon "immutable" characteristics, even if one believes sexual preference is immutable, but upon the actions of the individuals... no more than any privilege that sunsets. If a gay couple made it to the altar on time, they're in; if not, they're out. No jokes, please.)
Straight to the meat of the matter
Only one argument could strike down the proposition itself: whether it was properly put on the ballot as an initiative constitutional amendment in the first place. At issue is whether it's simply an amendment, which has been part of the initiative process since 1911, I believe; or whether it's sweeping enough to be considered a constitutional revision.
A revision would have required a 2/3rds vote in both houses of our state legislature (the State Assembly and the State Senate) to place it on the ballot, or else the same 2/3rds vote to call a state constitutional convention. Since neither of those were undertaken, if the CSC should rule that Proposition 8 created a "fundamental change to the [state] Constitution," then it would be struck down under question (1).
However, this is an awfully tough argument to make... given that all the amendment does is reinstate a previous initiative statute, Proposition 22, using exactly the same language. And all that statute did was reaffirm the status quo ante. How can reinstating the reaffirmation of the previous understanding possibly amount to a "constitutional revision?"
Mr. Peabody's Way-Back machine
On March 7th, 2000, the people of the state voted to inact an initiative statute comprising the following 14 words:
At this time, California Family Code section 300 defined marriage just that way anyway:
300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).
Proposition 22 was a precautionary measure against the possibility that California courts might attempt to cram same-sex marriage down our throats (no jokes, please) -- which, as it turns out, was remarkably prescient. So for eight years, Californians believed that the question of same-sex marriage was settled -- at least until supporters could muster enough votes to enact it via their own initiative; they tried once, but it was a disaster for the revisionists.
(The state legislature in California cannot vote to nullify a citizens initiative; they can only vote to place a legislative initiative on the ballot to overturn a citizens initiative... but we get to vote on that.)
We were rudely shaken awake on May 15th, 2008, when the California Supreme Court issued the ruling In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], overturning the law enacted by 2000's Proposition 22 and all other statutes restricting marriage and the recognition of marriage to one man and one woman.
Four of the seven justices voted to overturn the will of the people of the state of California and legalize same-sex marriage; the names in parentheses are the governors who appointed each justice and the year appointed:
- Chief Justice Ronald M. George (Pete Wilson-R, 1991/1996)
- Associate Justice Joyce L. Kennard (George Deukmejian-R, 1989)
- Associate Justice Kathryn Werdegar (Pete Wilson-R, 1991)
- Associate Justice Carlos R. Moreno (Gray Davis-D, 2001)
The other three justices voted to preserve traditional marriage:
- Associate Justice Marvin Baxter (George Deukmejian-R, 1991)
- Associate Justice Ming Chin (Pete Wilson-R, 1996)
- Associate Justice Carol Corrigan (Arnold Schwarzenegger-R, 2005)
The ruling took effect at the beginning of July, I believe. Since supporters of traditional marriage knew that the case was in the works, and knew that the court would probably rule the way it eventually did, Proposition 8 was already in the works. The initiative "title" -- that is, the description that appears on the ballot itself -- offered by those who qualified it for the ballot was "Limit on Marriage."
It qualified for the November ballot... and then, Attorney General Jerry Brown (yes, the former "Governor Moonbeam"), in a burst of unaccustomed neutrality on a contentious issue, decided to change the title to remove possible bias in the original title. Brown's version? "Eliminates Right of Same-Sex Couples to Marry!"
Despite this bit of skulduggery, the initiative passed by a margin of 4.6%, 52.3 to 47.7. This was significantly less than Proposition 22 had passed by in 2000; but it was a November ballot (which tend to lean more to the left), it had the Brown title, and it was during the Obama sweep of California... a remarkable achievement showing the true strength of California's support for traditional marriage (Hispanic voters pushed it over the top). The lawsuits were immediately filed to overturn it, and those are the cases that were just argued today in the California Supreme Court.
Back to the future
It's generally impossible to say for sure how the court will rule; but in this case, the lawsuit seeking to overturn Proposition 8 looks to be on shaky grounds. The attorneys for the groups seeking to overturn Proposition 8 in the tit-for-tat (no jokes, please) battle came in for some rough treatment from some of the justices... including two justices who actually voted to impose same-sex marriage on the state in the first place, Chief Justice Ronald M. George and Associate Justice Joyce L. Kennard. From the New York Times story linked above:
The toughest and most opinionated questioning came from Justice Joyce L. Kennard, one of four justices who had ruled in May that same-sex marriage was legal.
She said on Thursday that by passing Proposition 8, the voters did not invalidate that entire decision, but in effect changed the meaning of the term “marriage.” It left intact, she said, the substantive rights that the court had granted same-sex couples.
Justice Kennard asked Shannon Minter, the legal director of the National Center for Lesbian Rights, an opponent of the measure, a question that resonated in the hearing.
“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”
Mr. Minter argued that if the court upheld Proposition 8, same-sex couples would have “our outsider status enshrined in our constitution.”
According to AP, Kennard went even farther and spoke even more directly to her thoughts on the case:
Justice Joyce Kennard said the court was being asked to decide between two rights - the right of the people to change the constitution and the right to marry.
"And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," she said.
While it's difficult to read the entrails of supreme court oral argument, this does not sound like a justice who leans towards throwing out the persistent vote of the people -- across three elections -- in favor of restoring traditional marriage to California.
I find it even more unlikely that one of the three dissenting justices, who do not believe the state constitution mandates same-sex marriage, would believe that the non-right of same-sex couples to marry would trump the enumerated right of the citizenry of this fair state to amend their own constitution. So if even one of the four justices in the majority of In Re Marriage Cases is persuaded that, notwithstanding the propriety or wisdom of banning same-sex marriage, the voters had the right to do so, then that's it... Proposition 8 stands.
All coming together (no jokes, please)
Yesterday, I was worried; but I'm extremely optimistic today. I feared the four who looked at a constitution that had never even contemplated any but traditional marriage in 153 years of statehood, and saw a constitutional mandate for same-sex marriage, would squint even harder and see that mandate as ineradicable by mere voters (for our own good, of course).
But it seems at least two of the four-justice majority in the earlier case recognize the enormity of the California Supreme Court nullifying a constitutional amendment enacted by the citizens to overturn a previous decision by the California Supreme Court: It smacks of tyranny of the European kind.
But if this amendment is upheld, as I believe it will be, then we in the Golden State have struck a magnificent blow for the right of we citizens of the several states to craft our own government, regardless of what our would-be robed masters command. And of course, we'll have preserved traditional marriage in America's largest state, to the great benefit of Western Civ.
But I'm still keeping my rabbits' feet crossed.
June 26, 2008
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!
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?
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.
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.
I beseech you, in the bowels of Christ, think it possible you may be mistaken.
-- Oliver Cromwell, Letter to the General Assembly of the Church of Scotland, 1650
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.
-- Joseph Robinette Biden, jr., unintentional truth blurted out in response to the Boumediene decision, 2008
Think. Please. Think.
June 5, 2008
Headscarf Rights and Turkish Delights
This case is fascinating, pitting individual religious rights against Turkey's constitutional guarantee of a secular government... and I believe the minority Left's zeal for the latter critically endangers the former. From the New York Times via Reuters:
Turkey's ruling AK party appeared to move a step closer to being shut down on Thursday when the Constitutional Court overturned a reform that would have allowed women to wear Islamic headscarves in universities.
The headscarf amendment plays a central role in a separate, crucial case that seeks to outlaw the AK Party for anti-secular activities, and ban 71 members, including the prime minister and president, from belonging to a political party for five years.
On the one hand, we have the obvious religious-liberty problem of Turkish women not being allowed to wear a religious headscarf at university. But on the other hand, the headscarf is a symbol of Islamism, and the most characteristic tenet of Islamism throughout the Moslem world is that governments should be run by sharia (religious) law, not democratic law.
On the third hand, the AK (Justice and Development) Party won a solid majority of the seats in the Grand National Assembly -- 341 out of 550 (62%)... which is just shy of the 67% needed to push through legislation (and their own candidate for president) over the objection of the center-left coalition led by the socialist-democratic Republican People's Party (CHP).
And on the fourth hand, despite AKP's Islamist roots, they have so far shown remarkable restraint and have not tried anything overtly anti-democratic. They are center-right on most political issues, yet they have the full support of the Euro-elites -- Turkey desperately wants to be admitted to the European Union -- because, say EU officials, AKP and Prime Minister Recep Tayyip Erdogan, the former mayor of Istanbul, support "such fundamental freedoms as the freedom of expression, the freedom of religion."
The AKP was founded in 2001; although many members came from a religious (some conservative, some Islamist) background, the party has steadfastly maintained that it is a secular party. Indeed, party leaders pushed several positions that seem incompatible with a desire to impose sharia law, such as joining the EU, supporting religious freedom and tolerance, and even supporting the American invasion of Iraq in 2003: The party leaders approved us sending our troops into northern Iraq via Turkey; but after the AKP leaders mishandled the vote in the Assembly, a rebellion by AKP backbenchers joined with the leftist CHP, giving them just enough votes to withdraw transit approval, forcing us eventually to send the 4th Infantry Division all the way around to southern Iraq.
(According to Douglas Feith's excellent doorstop War and Decision, pp. 394-396, Gen. Tommy Franks deliberately left the 4ID floating on ships in the Mediterranean, in a largely successful effort to confuse Saddam Hussein into thinking either (a) we wouldn't invade until they eventually left the Med and headed through the Suez Canal to Kuwait, or (b) that we might still invade through Turkey; so the denial wasn't catastrophic... though it did mean that none of the fighting occurred north of Baghdad, in the "Sunni triangle," leaving Sunni insurgents unscathed and uncowed.)
They have had a lot of success on the Turkish economy, continuing the efforts of the previous government to shift it from "command" to free market; for example, inflation dropped to 6% in January of this year. This may sound high to us; but in 1993, inflation in Turkey hit a peak of 73%.
I believe AKP is currently allied with the conservative, right-wing Nationalist Movement Party (MHP), which is also not an Islamist party (certainly not since it was refounded in 1983, following the 1980 army coup d'état).
Each of these undertakings makes it less likely in my estimation that either the AKP or the MHP wants to overthrow the secular, democratic government of Turkey and impose sharia. Nevertheless, the headscarf issue still roils the country: Headscarves for women -- along with other religious clothing banned since the 1980 coup -- are seen as a symbol of creeping Islamism... and secularism is very deeply embedded in Turkey. It was one of the founding principles of Mustafa Kemal Ataturk, who founded the Republic of Turkey out of the wreckage of empire in 1923, seven years after the Ottomans were defeated and overthrown in World War I.
There is no question that a lot of Turks want to do away with the secular government and impose a theocracy. But "a lot" is still a very small minority; the very fact mentioned above, the depth of belief in a secular government in Turkish culture, makes Turkey a very unlikely place for an al-Qaeda revolution.
Yet Islamism is surely growing in Turkey, and many citizens are very uneasy seeing the trappings of a very intolerant branch of Islam. No major party has so far called for a ban on Islamism itself... just the outward manifestations, which many see as needlessly provocative; so some might argue that the headscarf ban does not violate freedom of conscience. Indeed, a court in the European Union ruled in 2005 on this very point, finding that the headscarf ban did not violate the right of Turkish women to education and was not discriminatory:
According to the court's ruling, which is final, the headscarf ban is based on the Turkish constitution's principles of secularism and equality.
In a society where men and women are equal, it said, a ban on religious attire such as the headscarf was justified on university premises.
"The court did not lose sight of the fact that there were extremist political movements in Turkey which sought to impose on society as a whole their religious symbols and conception of a society founded on religious precepts," the court's ruling added.
But I think the ruling is a shuck and jive: The EU may like the Justice and Development Party, which wants to overturn the ban; but I believe the Europeans much prefer cultural secularism and the leftists, led by the CHP. The decision is so freakish that it can only be political.
The camel's nose
But the key to the strife, I believe, is that the Turkish Left, smarting from their election loss last year, was trying to get AKP banned and its leaders suppressed even before the majority party decided to pass an amendment protecting the rights of religious Moslem women to attend university. From the Times story linked above:
The headscarf amendment plays a central role in a separate, crucial case that seeks to outlaw the AK Party for anti-secular activities, and ban 71 members, including the prime minister and president, from belonging to a political party for five years.
"This guarantees the closure of the party. I don't think we can talk of any calm before full chaos," said Cengiz Aktar, a political scientist at Istanbul's Bahcesehir University....
A powerful elite of military, judicial and academic officials regard themselves as the custodians of secularism and the army, with public support, edged a party from power as recently as 1997 on accusations of Islamist activity.
In AK, however, the secularist elite faces a party with a large parliamentary majority and a highly popular leader.
Senior AK Party members told Reuters recently the party has started to believe it would be closed down and Erdogan banned from belonging to a political party for five years.
The closure case is expected to take months to conclude.
Secularists, who until recently controlled key state institutions, are now accused by some of using the judiciary to hit back at an increasingly prosperous and assertive religious middle class that forms the bedrock of support for the AK Party.
"These guys are playing their last card and they won't take any chances. They can't do a coup d'etat any more like in 1960, 1971 or 1980," Aktar said.
As our own bitter experience shows, once CHP gets a taste for rule by judicial fiat, biting off one limb of actual liberty, they will never be satisfied with "just a little." Like the crocodile chasing Captain Hook, they'll pursue liberty relentlessly with prandial intent, desperate to gobble up the rest and rule in classic liberal-fascist fashion.
Let freedom reign
The problem in Turkey is not Islamism but socialism... or more accurately, liberal fascism: Socialist parties like CHP have a kneejerk reaction to the terrible crime that the late, great Timothy Leary used to call "Injudicious use of the First Amendment." When a liberal fascist decides that people are "misusing" liberty to make the "wrong" choices, his first impulse is to restrict those choices -- for everyone.
If there were an actual religious civil war raging in Turkey, with Islamists seizing bases and safe zones whence to launch attacks on the teetering secular government, I could see banning the open display of the flags and symbols of Turkey's enemy. But this does not describe the current climate.
While some women may be intimidated into wearing the headscarf, they have a very powerful source to appeal to: The courts clearly have no tolerance for such intolerance; Turkey isn't Malaysia, and sharia courts do not take precedence over the government courts. I don't see a crisis perilous enough to warrant such a flagrant violation of freedom of religion as forcing the religious to choose between worshipping as their faith demands -- and obtaining higher education.
Indeed, the very amendment that the AKP passed, the one that was just overturned by the Constitutional Court, read only thus: "No one can be deprived of (his or her) right to higher education." Thus, the Turkish Constitutional Court is now on record saying that religious Moslem women can be deprived of their right to higher education, if leftists find the sight of such women offensive.
Once again, I am awed by the genius of our own Founding Fathers. Rather than seeking security by banning dangerous religions, dangerous speech, or dangerous thought, they believed that liberty was the great bulwark against extremism.
Instead of banning headscarves -- and the political parties that leftists cannot defeat in the voting booth -- Turkey would be much better served by a "First Amendment" that not only protected the free exercise of religion but also prohibited government establishment of an official religion or sect. Courts that are secular enough today to overturn as innocuous a statement as that above about the "right to higher education" would certainly overturn any attempt by any party to incorporate religion into Turkish law.
Then private citizens could wear whatever religious clothing they chose, but they could not use sharia-courts to impose such demands upon others.
April 28, 2008
ID (the Other Kind): Beginning of the Death of the Democratic Party?
Today, the U.S. Supreme Court -- in a shock 6-3 decision (shocking because Justice John Paul Stevens was on the side of the angels!) -- held that states could indeed require voters to show photo-ID before voting... causing Sen. Charles Schumer (D-NY, 90%) to eructate, "This decision is a body blow to what America stands for -- equal access to the polls" (for senior citizens, minorities, and the poor... most of whom, apparently, carry no identification).
The Supreme Court upheld Indiana’s voter-identification law on Monday, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.
In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.
The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a Federal District Court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.
It's not just Chuck Schumer who is incensed by this ruling, and more generally, by the voter-ID laws that sparked it; almost the entire Democratic party seems up in arms about the very idea of requiring government-issued photo-ID before voters are allowed to vote.
So why are they so adamant? Let's consider a few points that may edge us away from their stated reasons -- concern that "legitimate voters" will be disenfranchised -- and towards what I think is their real motivation.
- While I agree that the "poor or members of minority groups" are less likely to have government ID, that is entirely by their own choice (or more likely, their own apathy).
Mere lack of money can't stop a voter from getting identification; although the Times doesn't consider it the kind of news "that's fit to print," the related AP story is more forthcoming on this point:
Indiana provides IDs free of charge to people without driver's licenses. It also allows voters who lack photo ID's to cast a provisional ballot and then show up within 10 days at their county courthouse to produce identification or otherwise attest to their identity.
So money is no object; government ID is literally "priceless."
- Where is the evidence that registered voters who are senior citizens are less likely to have photo-ID from the government than younger voters?
In fact, I wouldn't be surprised to find that they're more likely, not less, to have identification. I suspect this unsourced claim is intended to broaden the pool of putative "victims" of voter-ID laws... and especially to broaden it to include as many Republicans as possible.
The Times article ends a heart-rending story about a black woman, a senior citizen, turned away from the polls in Indiana for lack of ID. The last line: "Ms. Williams, in her early 60’s, is black -- and is a Republican." (Cue melodramatic music.)
Last and most important point. When I say this decision, and the legislation it will spark, could spell the death of the Democratic Party, I don't mean because it will somehow -- metaphysically, perhaps -- make it harder for senior citizens (who are more likely to vote Republican anyway), the poor, and minorities to vote. It won't; even though the latter will still vote in lesser numbers than those who are more well off and those who are not "federally protected minorities," that has nothing to do with any supposed inability to get a photo-ID.
Rather, I think it will inflict a deep wound in the Democratic Party because:
- Such bills will, when fully implemented -- for example, when extended to the rest of the United States and to include absentee balloting -- make it much, much harder to commit voter fraud... and today's Democratics depend so heavily on fraud, they probably can't survive without it.
Critics of the law make much of the fact that there have been so few prosecutions for voter fraud in Indiana. But that's Indiana, where Republican election officials pretty control the elections. I doubt that voter fraud has ever been a serious problem in that state.
But how about Chicago, Detroit, St. Louis, New York City, Compton, East L.A., New Orleans, Miami, and other cities and even entire states where Democrats control the "standards" required to vote? That is where you're going to find massive voter fraud that turns the Democratic majority into a supermajority -- and the Republican minority into political impotence.
Take Loretta Sanchez: She first won California's 46th district in 1996, beating "B-1" Bob Dornan by 984 votes. California officials threw out 124; and when Congress investigated, they found 624 more votes that were definitely fraudulent... which reduced Sanchez's lead down to 236 votes (out of about 100,000 votes cast). At that point, not being able to prove that the voter fraud Congress found was enough to flip the election, the House for political reasons voted to end the investigation.
But look here... according to a column by Wall Street Journal writer John Fund, the INS subsequently found that as many as 4,023 ballots were cast in the 46th district by "illegal voters." But since there was no way to know for sure whether these four thousand Hispanic non-citizens and unregistered Hispanic voters voted for Loretta Sanchez or Bob Dornan, that could not be used in the investigation of her "victory."
(Much of this work was done after the House voted to terminate the investigation, and the full House finally shut down the committee and INS investigation before it could find even more voter fraud, thus embarassing Newt Gingrich even further.)
But there is more in that same John Fund column:
In 2002, Dean Gardner, a losing GOP candidate for California's state legislature, sent out a survey to 14,000 first-time voters. A total of 1,691 surveys came back. The results were startling: 76 people admitted that they weren't citizens but had voted, while 49 claimed not to have registered at their correct residence, as the law requires. Gardner lost by only 266 votes.
In the 2000 election, as the Missouri secretary of state later discovered, 56,000 St. Louis-area voters held multiple voter registrations. No one knows how much actual fraud took place, but it may have played a role in the Democratic defeats of incumbent Republican senator John Ashcroft, who lost his seat by 49,000 votes, and gubernatorial candidate Jim Talent, who lost by 21,000 votes....
A Post analysis [of the 2000 presidential election vote in Florida] discovered that 5,600 people voted whose names matched those of convicted felons. "These illegal voters almost certainly influenced the down-to-the-wire presidential election," the Post reported. "Of the likely felons identified by the Post, 68 percent were registered Democrats."
Note that this only counts actual, bona-fide election fraud; Democrats also have an array of legal or quasi-legal ways to prevent enemy votes from being counted, ranging from closing polls in Republican-leaning districts earlier than those in Democrat-leaning districts, to hypercritical challenging of Republican votes by elections boards, to selective recounts, all the way to actually filing lawsuits attempting to suppress the Republican vote (as in the Florida cases filed in Martin and Seminole counties in 2000, seeking to disenfranchise 25,000 absentee voters). None of these would be affected by voter-ID laws.
I believe that voter fraud increased substantially after President Bill Clinton signed the motor-voter bill in 1993 -- which I vigorously opposed from the very beginning: If a person has so little interest in the franchise that he won't bestir himself to register unless he's practically forced, then I don't want him voting at all. Fund evidently agrees:
Why is such activity proliferating? It flows from the success of Democratic lawmakers in pushing aside clear, orderly, and rigorous voting procedures in favor of elastic and "inclusive" election rules that invite manipulation. A machine for corruption is the 1993 "Motor Voter Act," the first bill that President Clinton signed. The law requires government officials to allow anyone who renews a driver's license or applies for welfare or unemployment to register to vote on the spot, without showing ID or proof of citizenship. It also allows ID-free registration by mail. The law also makes it hard to purge voting lists of those who've died or moved. All this makes vote fraud a cinch, almost as easy as when Tammany Hall handed out pre-marked ballots.
In California, it is actually against state law for polling places to demand any form of ID that indicates citizenship. Not even Democrats try to defend that on its own grounds; it was simply pushed through the legislature in a power play. There can be no other purpose for such a bill than to make committing voter fraud as easy as taking a pie in the face.
ACORN (Association of Community Organizations for Reform Now), a socialist group that agitates for various left-wing causes, is the king of registration fraud, I suspect, having registered thousands and thousands of fake voters. But they have many competitors, including the Public Interest Research Group and Project Vote... nearly all of whom lean very far to the left.
I am convinced that it is this fact -- not weird speculation about the poor and certain minorities and their lack of interest in obtaining IDs -- that actually animates and drives the intense Democratic opposition to voter-ID laws across the country. But why would Democrats be so anxious to lock into place a system that practically begs for fraudulent voting -- unless they believe they really and truly need election fraud to stay in power?
I take their own obvious opinion of themselves and their election strategy very seriously. Thus I say again: If voter-ID bills sweep the rest of the country (the 30 states, plus D.C., that have no requirement to show a photo-ID before voting), and especially if it is extended to absentee balloting, then the Democratic Party as we know it today could collapse. It would most probably be replaced by a new and much more moderate Democratic Party. (It's much less likely to be replaced by a different party, since we have been stuck with these two for more than 150 years.)
But either way, the heyday of the contemporary, ultra-leftist Democratic Party of 2008 -- that can dither between nominating Hillary Clinton (left) or Barack Obama (lefter); that can openly call for America to declare defeat and go home from a war we're winning; that responds to a possible recession by proposing staggering tax increases (economic policy which even John Maynard Keynes rejected); that is willing to ally itself with America's enemies (and Islamic religious fundamentalists), applauds Communists like Oogo Chavez and Raul Castro, and argues that the CIA cannot interrogate captured foreign terrorists held abroad any harsher than police can interrogate an American citizen suspected of robbing a convenience store; that is so radical, it cannot gain power except through voter fraud -- that kind of Democratic Party is soon to pass from history.
It will not be missed.
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."
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.
November 12, 2007
Federal Judge Declares "Mistrial" Equivalent to "Acquittal"
U.S. District Judge Benjamin H. Settle -- a Bush-43 appointee -- has found a novel way to prevent a cowardly Army lieutenant from having to stand trial at a court-martial for refusing to deploy to Iraq... and for calling the Commander in Chief a war criminal:
A federal judge has blocked the Army from conducting a second court-martial of 1st Lt. Ehren Watada of Honolulu, an Iraq war objector based at Fort Lewis, Wash., saying it's likely the second trial would violate his constitutional rights....
U.S. District Judge Benjamin H. Settle ruled yesterday that no court-martial will be held for Watada, a 1996 Kalani High School graduate, pending the outcome of his claim that it would violate his Fifth Amendment rights by trying him twice for the same charges.
Watada's first court-martial ended in a mistrial in February. Settle wrote that the military judge likely abused his discretion in declaring the mistrial.
Say, that's a good one: Judge Settle has just created three novel legal principles in one sitting... which bests the record of Charlemagne "Chipmunk Cheeks" Brandenborjk, who once consumed eleven distinct varieties of turnip borscht in a single meal. Judge Settle settled the following burning (at least smoldering) legal questions:
- Does the principle of "double jeopardy," by which a person acquitted of an offense cannot be tried again on the same charge, extend also to cover prosecutions that end in a mistrial with no verdict at all? Judge Settle says Yes, thereby upending about thirty-eight decades of case- and statutory law.
- Do the ordinary civilian courts have jurisdiction over military officers being tried in courts-martial by military judges for a military offense against the Universal Code of Military Justice during wartime? Judge Settle says Yes, thereby startling the stockings off'n Gen. George Washington.
- Can a civilian judge look into the heart of a military judge and judge that the judge only called a mistrial for sneaky, underhanded reasons... and not because the defendant first stipulated X, and then based his defense on the denial of X? Judge Settle says Yes, and then goes on to guess what playing card you're hiding in your pocket.
Oh well; fools rush in where angels have dirty faces.
As to the first principle, most judges have accepted the basic idea that double-jeopardy only kicks in when there's been an actual verdict of not-guilty. I've never heard before that prosecutors are barred from retrying a defendant after a mistrial; perhaps one of our many lawyer-readers can enlighten us on this fine point of law.
The second is interesting, as it implies that military courts are inferior to civilian courts... even when trying military charges during wartime. (In his next case, Judge Settle is going to pick the 2008 Miss America and award last month's World Series to Colorado.)
But it's the third principle that's really wicked cool: According to Judge Settle -- who served for three years in the Judge Advocate General (JAG) corps -- anytime the Army (or presumably any other service) court-martials some malcontent, rabble rouser, or boot-quaking yellowbelly, any district judge in the general vicinity can step in and stop the trial on the grounds that he personally thinks the military judge is in cahoots with the prosecutor.
In February, military judge Lt. Col. John Head unexpectedly declared a mistrial in the third day of Watada's trial as the soldier prepared to take the stand in his own defense.
Head did so after he expressed concern that Watada did not understand what the soldier had earlier agreed to in what's called a stipulation of facts because it conflicted with his defense.
Now there's some obvious skulduggery on the part of Col. Head!
Happily, the Honolulu Advertiser has persuaded a fair-minded and unbiased analyst to give his considered opinion:
Honolulu attorney Eric Seitz, who represented Watada at the time, said yesterday that he believes the latest federal court decision means the case against Watada essentially is dead.
The Army can appeal the case to the 9th U.S. Circuit Court of Appeals, which would likely be unsuccessful, Seitz believes, or even the U.S. Supreme Court.
Seitz, an experienced military law attorney, said Watada's lawyers should resubmit his resignation and the Army should accept it "and put an end to it."
Sage advice from Watada's former attorney.
At some point, President Bush has got to put his foot down anent the clear and unambiguous distinction between military justice and civilian procedures: We simply cannot have the federal courts -- which are themselves completely unable to protect us from known terrorists -- monkeying with duly constituted courts-martial to make them equally worthless.
And while we're on the subject, President Bush needs to reach right into the State Department... and fire any diplomat who refuses to accept a posting to Iraq. That plus a vigorous prosecution of Lt. Ehren Watada would go a long way towards refocusing our governmental resources on stopping the bad guys, rather than endlessly debating the provenance and niceties of the Iraq war.
September 18, 2007
Newsflash: Clinton Judge Finds Limit to Judicial Power
It's a bit sad that I consider it newsworthy that a federal judge appointed by President Bill Clinton, Martin Jenkins, has actually thrown out an activist, leftist lawsuit, filed by the state of California against automakers, alleging they have damaged the state by making cars that contribute to global warming. (Actually, the lawsuit was filed by former governor, former mayor, now Attorney General and perpetual nutjob Jerry Brown "on behalf of" the state of California; I didn't get to vote on it.) The judge held that setting such policy was rightly the task of the legislative branch of the federal government, not the judiciary:
A U.S. federal judge tossed out a lawsuit by California's attorney general on Monday seeking hundreds of millions of dollars from six automakers for damaging the state with climate-changing greenhouse gases.
Martin Jenkins, a federal judge in the Northern District of California, said the issue of global warming should be decided in the political rather than legal arena.
"The Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government," Jenkins wrote in approving the automakers' motion to dismiss the case.
(It's unclear from the article, but I think Judge Jenkins held that the federal courts do not have jurisdiction.)
I am stunned. I thought this would be a slam-dunk before a liberal judge in blue-state California. Evidently the Office of the Attorney General was likewise stunned, because its spokesman just made what is simultaneously the most fatuous and the most legally incompetent argument I've ever seen from that body:
The suit was the first seeking to hold manufacturers liable for global warming damages caused by greenhouse emissions. It said cars made by the six automakers account for more than 30 percent of human-generated carbon dioxide emissions in California, the most populous U.S. state.
"We understand why a district federal judge may not want to jump into a global warming thicket with both feet," Ken Alex, California's supervising deputy attorney general, said in an interview. "Having said that, the basic tenet of law is that where you describe a harm then there needs to be a remedy for it."
"Right now because the political branches -- the federal government, Congress and the executive branch -- have not acted, the state of California is left without a remedy."
Now I must again caution that I am not a real lawyer; I will cop to being a "Philadelphia lawyer" or a "sea lawyer," to playing one on this blog sometimes, and to thinking of myself as more informed on the law than 95% of laymen (and so much more modest, too!) So maybe I've misunderstood this point all these years.
But I remember both my lawyer father and a friend of mine who attended law school but chose not to become an attorney separately telling me the exact opposite. They said that the idea that "every harm has a legal remedy" is discussed as a false belief that many people have about the law. In other words, both these two lawyers told me that Counselor Alex is 180 degrees off course: Not every harm has a legal remedy; sometimes, bad things happen, and there is nobody you can collect from.
For example, suppose you're hiking in Yosemite, admiring the beautiful scenery. Too much so; you fail to note that the trail turns north, and you continue walking west... right into a creek, where you stumble, fall, and crack your kneecap on a rock.
Ow. Nobody can tell me that's not a "harm." You're in agony; you can't walk; you're stuck four miles from the nearest help. And you know what? There is not a single person in the world you can successfully sue. You have no legal remedy whatsoever. A bad thing happened to you -- because you were a dumbass.
Even overt actions that harm people in ways obviously known to the actor don't necessarily mean the victim has a valid lawsuit. For example, suppose the government condemns somebody's house under eminent domain (in order to build a public emergency trauma center), and suppose further they pay the owner market price plus 5%. But suppose the owner was born in that house, as were his family for the previous three generations, as well as his daughter; and suppose he would never have sold it for any amount of money at all. Hasn't he suffered a grievous harm?
Well, yes he has; but no, he has no real case against the government, because they paid him "just compensation." He has no legal remedy for the harm he suffered.
In the global-warming case, I'm certain that Jerry Brown will appeal to the 9th Circus Court, which could overturn the judge's ruling on the motion to dismiss. No matter, the loser will appeal to the Supreme Court; once there, I believe the majority will use Judge Jenkins' decision as the basis for confirming that there really, truly are limitations on legislating from the bench.
Thus it may turn out that Jerry Brown's most enduring legacy will be striking a mighty blow -- albeit inadvertently -- for judicial restraint. Exciting, isn't it?
July 6, 2007
ACLU Left "Standing" Out in the Cold (and a Game of Pin the Party on the Judge!)
In a wonderful ruling today out of the Sixth Circus, the ACLU's gaggle of the perpeturally aggrieved was told to pack up their federal lawsuit against the NSA al-Qaeda intercept program; the appellate court held that none of them has standing -- meaning none could show that he, personally, was surveilled by the NSA.
The case, American Civil Liberties Union v. National Security Agency, was appealed by the Bush administration after federal Motown Judge Anna Katherine Johnston Diggs Taylor ruled in August that the program was unconstitutional and must immediately be ended; she magnanimously agreed to stay her ruling pending appeal... provided that appeal commenced in one week.
In October, the Sixth Circuit panel issued its own (unanimous) stay. And then today, it announced the 2-1 decision voiding the suit. (In an irritating but understandable act of judicial restraint, the court, once having found a lack of standing, did not reach the merits of the case.)
So it's time now to play -- pin the party on the judge! See if you can guess which president appointed which judge...
We have district-court Judge Anna Katherine Johnston Diggs Taylor and appellate court Judge Ronald Lee Gilman ruling for the ACLU; and appellate court Judges Alice M. Batchelder and Julia Smith Gibbons ruling against the ACLU.
I'm sure you're already way ahead of me, so here is the answer:
- Anna Katherine Johnston Diggs Taylor: appointed by Jimmy Carter in 1979;
- Ronald Lee Gilman: appointed by Bill Clinton in 1997;
- Alice M. Batchelder: appointed to the district-court bench by Ronald Reagan in 1985, elevated to the appellate court by George H.W. Bush in 1991;
- Julia Smith Gibbons: appointed to the district-court bench by Ronald Reagan in 1983, elevated to the appellate court by George W. Bush in 2001.
So for anyone who is still unclear about the monumental importance of presidential judicial nominations...
This isn't the end of the issue; there are other suits, and no circus court has yet ruled on the merits of this case or any of the others:
A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court in California, the United States Court of Appeals for the Ninth Circuit, will hear an appeal from one of the judge’s preliminary rulings next month.
Some plaintiffs in that case contend that they can prove standing even under the Sixth Circuit majority’s analysis. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted.
I'm not sure any of these plaintiffs will be found to have standing, even those who claim they've "seen" evidence, unless they can produce that evidence in court (which -- reading between the lines -- it appears they cannot). Regardless, I still have confidence that when the Supreme Court finally rules on those merits, they will find that the president and Commander in Chief has plenary authority to order survillance of enemy combatants.
Unless, of course, flibbertgibbit Justice Anthony Kennedy has another bad robe day.
June 29, 2007
Will Anthony Kennedy Rule for al-Qaeda?
The abrupt and unexpected reversal by the Supreme Court today, deciding to rehear arguments about (essentially) whether to grant habeas corpus rights to unlawful enemy combatants detained abroad, hinged on the vote-switch by Justice Anthony "Weathercock" Kennedy. (Incredibly liberal Justice John Paul Stevens also switched, but his vote against was an aberration from the git-go; he was always going to switch if his would be the necessary fifth vote.)
But the impact may be profound -- and dreadful. As five justices had to vote to rehear, this may mean five justices (a majority) now buy the Democrats' central point: that enemy combatants must be treated the same as carjackers and check kiters: granted the full panoply of rights, lawyers, civilian evidentiary hearings, and of course, the ability to subpoena heavily classified documents and to yank top military commanders from the front line, during a war, to sit for weeks in a courtroom being cross-examined by an al-Qaeda attorney on future and ongoing American military plans and operations.
Or, if the subpoenas are rejected, to force the release of terrorist masterminds back into the outside world, where they will instantly start plotting more terrorist attacks (laughing at imprudent Western "jurisprudence" all the way).
From the New York Times:
The issue in the case the court agreed to hear today is whether the Congress can strip the federal courts of the power to hear habeas corpus cases filed by Guantanamo detainees. In legislation passed after last June’s Supreme Court ruling, Congress included a provision barring such suits by the detainees....
The Justice Department has argued that the nation’s defense would be imperiled if habeas corpus cases can be used by federal judges to second guess military officials’ decisions to detain enemies during wartime.
Under the theory of the most liberal members of the Court (and the entire leadership of the Democratic Party), we wouldn't be able to hold any prisoners at all... even on the battlefield. If habeas is granted to prisoners held in Cuba -- not American soil -- then it's granted to all prisoners held anywhere, in any country, so long as Americans have any control or access.
This should be fairly clear: Via "judge shopping," lawyers for detainees -- wherever held -- can always find a judge who is sympathetic to the plight of terrorists unable to ply their demonic trade against Americans... or at least completely unsympathetic to any coercive means the military might use to stop them, which amounts to the same thing.
Such a judge can order the production, in federal court, of every document demanded by the defense, including classified material detailing ongoing intelligence operations (which resulted in the defendant's capture but might have been "erroneous"). And the judge can order that "critical witnesses," such as Gen. David Petraeus (Commander Multinational Force - Iraq) and Adm. William Fallon (Commander CENTCOM), be produced in that same stateside court to fully explain details of ongoing military operations... operations that resulted in the capture of the defendant (relevance!) and perhaps future planned military operations that might be affected by intelligence we gather from the defendant (even more relevance!)
Additionally, under the Fifth Amendment, any detainee could refuse to answer questions or "be a witness against himself," and there woudn't be a thing we could do to force him. After all, if you can't force an American citizen charged with pickpocketing or dealing crack to answer questions, what possible justification can there be to force a Yemeni terrorist captured in Qatar by the CIA and held in Kuwait to answer questions? Certainly not without an al-Qaeda minder -- sorry, I meant "attorney" -- being present!
Simply put, unelected, lifetime-appointed civilian judges would take control of all prisoners captured by the military, the CIA, or even foreign intelligence agencies, if they're unwise enough to allow us access. Welcome to the wonderful world of Democrats.
I'm nervous about this hearing for two reasons:
- In general, I'm skeptical that the Court will ever finally rule that it doesn't have jurisdiction in such a momentous issue; power seeks more power.
- I'm especially skeptical when a majority of justices votes to rehear an issue; why would Kennedy vote to rehear this case -- and then vote to decide it the way it was originally decided back on April 2nd? I have the terrible feeling that Kennedy switched his vote on rehearing because he was persuaded, in backroom discussions with the Court liberals, to switch his vote -- on the underlying question, I mean.
What is really at stake here is whether the Constitution really means what a plain reading of its text indicates it means. The Constitution says (article III, section 2):
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.
Per above, Congress spoke: It made an exception to the Court's jurisdiction, just as the Constitution allows.
But the Court seems to interpret this constitutional provision as actually meaning that the Supreme Court has whatever jurisdiction it chooses to have, and to hell with the Congress. Evidently we have three coequal branches of government, but one is more coequal than the others.
What next? Will the sheep be trained to chant "five robes good, four robes bad?"
June 25, 2007
Free Speech for Me AND for Thee
The realignment continues on the ship of state (that sounds weird somehow, but I'm too lazy to fix it). Today, the Supreme Court of the United States (SCOTUS -- which also sounds weird and vaguely salacious) cast out the most offensive provision of the McCain-Feingold Bipartisan Campaign Reform Act of 2002... the signing of which, and continued defense of, is the worst decision ever made by President Bush, a president I otherwise mostly admire.
The BCRA set contribution limits on individuals as well as corporations and -- in its most controversial section -- banned "issue ads" within 60 days of an election if they even so much as mentioned a candidate's name:
The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.
Feingold, a co-author of the campaign finance law, was up for re-election in 2004.
The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.
The Court ruled today that preventing the airing of ads violated the First Amendment's freedom of speech provision:
The decision upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group's First Amendment rights, the court said.
"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Chief Justice John Roberts wrote for the majority. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."
Politically, the ruling is a horrendous body blow to the already faltering campaign of Sen. John McCain (R-AZ, 65%), one of the two eponymous senators who introduced the bill in the Senate (the other is Russell Feingold, D-WI, 100%), widely considered the most liberal fellow in the Senate. McCain seems to be enraged at the Court, perhaps seeing it as a personal insult to him that may require the Chief Justice to defend it with his body upon the field of honor:
The decision is a setback for Sen. John McCain, R-Ariz., who helped write the 2002 campaign finance legislation with Feingold that contained the advertising provision. McCain, now a presidential candidate, has come under criticism from conservatives for attempting to restrict political money and political advertising.
"It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election," McCain said in a statement. [That "narrow exception" appears to refer to the First Amendment to the United States Constitution, with which Sen. McCain takes issue.]
The court's decision, however, has no effect on the more far-reaching component of the campaign finance law - it's ban on the ability of political parties to raise unlimited and unrestricted amounts of money from unions, corporations and wealthy donors.
"Fortunately," McCain said, "that central reform still stands as the law."
Happily, Mitt Romney appears to have been the first Republican presidential candidate to applaud the demise of the odious "issue-ad" prohibition of McCain-Feingold.
I call this excellent ruling a realignment because the Court's reversal of a central provision of its December, 2003 ruling upholding the BCRA, McConnell v. Federal Election Commission, 540 U.S. 93 (2003), can be traced to one key event: President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor.
On the core findings in McConnell v. FEC, Justices O'Connor, Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg, and David Souter upheld all the most important elements of the law; the dissenters were Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Chief Justice William Rehnquist.
In today's ruling, every justice still on the Court voted the same as he or she did last time; Chief Justice John Roberts voted against the BCRA and in favor of freedom of speech, just as Rehnquist did. The only difference was that Justice Alito reversed Justice O'Connor's vote from pro-BCRA to anti.
I believe this signals a realignment of the Court, with a new 5-4 majority favoring more freedom for the individual at the expense of government control, except where the government can show a dire national emergency -- as with cases involving elements of the war against global jihadism -- or when the government stands "in loco parentis" of schoolchildren. And I think this ruling bodes very ill for those compulsive authoritarians, such as Sen. Diane Feinstein (D-CA, 90), who want to revive the "Fairness Doctrine": Surely the same five justices will agree that forcing a TV or radio show to broadcast political opinions contrary to those they hold, just to maintain a federally directed "balance of opinion," is also a violation of the fundamental (and constitutional) freedom of speech.
Asked if she would revive the fairness doctrine, which used to require broadcasters to present competing sides of controversial issues, Feinstein said she was "looking at it."
"I remember when there was a fairness doctrine," she said, "and I think there was much more serious correct reporting to people."
Yes. As "Uncle" Walter Cronkite's reporting of the Tet Offensive demonstrates.
In a shocking turn of events, the New York Times -- which, as a print newspaper, was exempt from the provisions of the BCRA on grounds of freedom of speech, and which thus was the major player in the news medium that held a monopoly on issue advertising during the last 60 days of an election -- bemoans the Court's decision today allowing broadcast media that same right:
By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.
The "loophole" in question would appear to be that pesky First Amendment again... "free speech for me but not for thee." The Times continues, giving the gavel over to dissenting Justice David Souter:
In the case decided today, Federal Election Commission v. Wisconsin Right to Life, No. 06-969, Justice David H. Souter wrote a dissent that Justices John Paul Stevens Ruth Bader Ginsburg and Stephen G. Breyer joined.
“After today,” the dissenters said, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”
The dissenters expressed dismay over today’s ruling and said it could portend a new wave of public cynicism about the role of big money in politics.When the case decided today was argued on April 25, Solicitor General Paul D. Clement, arguing on behald of the election commission, said that to find that the Wisconsin ads should have been allowed to run would leave the McCain-Feingold law “wide open.” Justice Breyer predicted then that a ruling like today’s could mean, in effect, “Goodbye, McCain-Feingold.”
Ooooh, if only! But two of the majority justices -- the two new guys -- decided to act like judicial conservatives who believe in judicial restraint, and they limited their decision to upholding the actual judgment of a three-judge panel of the D.C. Circus Court that heard the case. Rather than declare the entire provision unconstitutional, as Scalia, Kennedy, and Thomas did in a separate opinion, Roberts and Alito held only that the panel was right to rule that the "issue ads" of Wisconsin Right to Life, Inc. did not constitute "express advocacy," as banned by the BCRA.
(I think this is what lawyers call an "as applied" challenge, meaning that the court does not decide whether the law itself is unconstitutional but rather whether it was wrongly applied in the particular case.)
The refusal of Roberts and Alito to go as far as Scalia, Kennedy, and Thomas does not necessarily mean they disagree with the latter's position: Roberts' and Alito's understanding of judicial restraint may mean that they simply refuse to go beyond the particulars of the case to make sweeping judgments where none is required. In a clean challenge to that provision of the BCRA, they might very well vote to strike it down.
Sadly, the Bush administration doubled down in this case, filing an amicus curiae brief urging the Court to uphold the FEC's authority to ban the ads. Thus, the Bush psychodrama continues... although it's worth noting the administration's consistency: They support McCain-Feingold even against their own conservative Republican supporters... Bush is an equal-opportunity free-speech denier.
Nevertheless, I now expect to see a flurry of conservative, 5-4 decisions emanate from the penumbra of this Court, as the judicial realignment proceeds apace. Keep watching the skies!
June 11, 2007
Be Sure You're Sitting Down for This...
Today, a three-judge panel of the 4th circus court of appeals ruled that the commander in chief (that would be George Bush) can no longer hold an enemy combatant for the duration of hostilities... which would come as quite a shock to previous wartime presidents (if Franklin Roosevelt were alive today, he would be spinning in his grave).
Instead, two of the three judges -- Diana Motz and Roger Gregory -- agreed with each other that in future, enemy combatants captured or held in the United States should be tried in the normal criminal court system, just like shoplifters and carjackers, so that al-Qaeda sleeper-cell operatives:
- Can have jihadist lawyers of their choice;
- Can prevent any and all interrogation or intelligence gathering by anyone, because that would, of course, queer the criminal case against him and likely trigger an immediate release under habeas corpus;
- Can subpoena all relevant or irrelevant national-security documents as part of their “defense;”
- And can summons the entire command corps of Multinational Force - Iraq, all overt and covert CIA agents working in counterterrorism, and the President of the United States as "witnesses."
If the government fails to produce any of these demands, the al-Qaeda suspect must, one presumes, be acquitted and set free. Sounds fair to me.
But here is the shocker: The lone dissenting judge, Henry E. Hudson, was appointed by George W. Bush.
Of the two judges who joined the majority opinion, Motz was appointed by President William Jefferson Clinton and confirmed by the Senate in 1994, when the Democrats still controlled that body.
The other, Gregory, was given a recess appointment by Bill Clinton in the year 2000, after the Republican Senate refused to confirm him (in the waning days of the Clinton presidency; after the election; after the long count; after Vice President Gore conceded; as Clinton was trying to stack the courts).
Then in 2001, when the Senate was 50-50, and Bush was having trouble with the Democrats refusing to allow any conservative judges through, the president was forced to cut a deal with them (in May of 2001 -- remember that?) As Byron York at the National Review explains things:
After weeks of threats from Senate Democrats, this afternoon George W. Bush will send to the Senate the names of eleven nominees to the federal circuit courts of appeal. The president's choices -- he picked two Democrats, both Bill Clinton nominees, as well as several solid conservatives -- reflect the White House's understanding of how difficult it will be to confirm judges who are opposed by key Democrats in the 50-50 Senate.
First the Democrats. Bush will renominate Roger Gregory to the Fourth Circuit Court of Appeals. Gregory was originally nominated by Bill Clinton, who used a recess appointment to place him on the court after the Senate refused to act on the nomination. Democrats have made Gregory a cause celebre in recent months, alleging that Republican opposition to Gregory, who is black, was racially motivated [Bush having such a well-documented hatred of blacks]. They have aggressively pushed Bush to name Gregory, a move that was also approved by home-state senators John Warner and George Allen, both Republicans, and by Virginia governor James Gilmore, head of the Republican National Committee.
So the lone Republican judge sees the president as less of a threat to the nation than al-Qaeda, while the two Democrat judges are utterly unserious about fighting the war against global jihad: They want it "fought" as a purely criminal matter, so that it will not be fought at all.
I know you are stunned by this turn of events. I mean, who would have thunk it?
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:
- 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;"
- The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;
- 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;
- 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;
- ...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:
Suppose Congress passed a law saying that everyone who committed murder on federal property would be indicted as a "federal murder defendant;" those so designated could be tried in federal court; and those so designated, during their actual trials, could only use attorneys from a specific list generated by the Department of Justice.
While the Supreme Court hears the inevitable challenge to this, 80 people are indicted by the Justice Department as "federal murder defendants."
But the Supreme Court strikes down the original law, saying defendants must be allowed counsel of their choice at their actual trials after being indicted. Congress rewrites the law, saying everyone who committed murder on federal property would be indicted as a "federal homicide defendant;" and those so designated, during their actual trials, could use any dadburned attorneys they want.
But then, when the first trial comes up, the judge dismisses the charges because the defendant was designated a "federal murder defendant," while the law only allows trial for "federal homicide defendants." That's totally different! Charges dismissed.
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.
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.
- 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.
- 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.
I fall into group 2. I cannot look at a zygote and see it as morally equivalent to a living baby.
For me, the particular critical area of development is the cerebral cortex -- that which most separates human beings from the other creatures on the planet, in terms of biology.
(The only exceptions are the cetaceans, which have well developed cerebral cortices, but which clearly do not have human levels of intelligence, alas. As a science fiction fan, I would love the idea that we had a couple of "alien species" on the planet that we could talk to; but this has been studied for decades... and every scrap of evidence points to the conclusion that they're just clever animals.)
So I would allow abortion only up until such time as the cerebral cortex is fully formed and functional -- though not fully developed, of course, since that happens only at adulthood. I believe there is a fairly clear point where the cortex activates, and it's usually somewhere around the 26th week (around the end of the second trimester). I would allow abortion for any reason before cortical activity rises to a certain point, and afterwards, disallow it for any reason except to save the life -- not the "health" -- of the mother... and even then, every effort should be made to save the baby, even if that puts the mother at some increased risk.
I do not believe that a human person is nothing but a lump of protoplasm. I believe humans have non-destructable souls. But I also believe that human souls do not inhabit non-human bodies, else we would see them in animals. Until cortical activity rises to a certain level, the developing body is not yet human: I literally believe that the soul cannot "fit" into that body until the body is ready to receive it, and ensoulment occurs sometime after that period of cortical activation. Since I obviously cannot know when after that point ensoulment occurs -- traditional Jewish teaching is that it occurs when the baby takes its first breath after being born -- I would outlaw abortion after cortical activation (that is, when cortical activity rises above a certain point).
All right, back to today's Court decision upholding the ban on partial-birth abortions.
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.
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:
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.
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.
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!
February 20, 2007
D.C. Circus to Detainees: Drop Dead
Perhaps the most important ruling of the Bush era (Boumediene v. Bush) was just released today: the D.C. Circus has ruled, by a 2-1 majority, that unlawful enemy combatants detained by the military do not have the right to appeal to the civilian courts to be released:
The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding the prisoners - a decision that will strip court access for hundreds of detainees with cases currently pending.
"The arguments are creative but not cogent. To accept them would be to defy the will of Congress," wrote Judge A. Raymond Randolph in the 25-page opinion, which was joined by Judge David B. Sentelle. Both are Republican appointees to the federal bench.
Judge Arthur Raymond Randolph was appointed by the first President Bush in 1990; Judge David Sentelle was appointed by Ronald Reagan in 1985. The third member of the panel (who dissented with the ruling) was Judge Judith Ann Wilson Rogers, was appointed by President Clinton in 1993.
The New York Times adds a few interesting fillips:
The court’s majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States -- the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners’ avenues to the federal courts.
The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration’s motion to dismiss the cases.
In the earlier case referenced above, Hamdan v. Rumsfeld, Salim Hamdan petititoned for a writ of habeas corpus (seeking release) last December to D.C. District Court Judge James Robertson; but under the new Military Commission Act, he denied the petition.
Robertson, appointed by Clinton in 1994, had granted Hamdan's first habeas corpus petition in 2004. The decision was overturned by a three-judge panel of the D.C. Circuit (which included then-Judge John Roberts) in 2005; but the Supreme Court overturned the D.C. Circuit.
Today's ruling in Boumediene v. Bush is only a way-station en route to the Supreme Court, where it will all come down to a single justice: Anthony Kennedy, who, in the Hamdan case (Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2006), voted with the liberal justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and David Souter to strike down the earlier version of President Bush's military commissions, overturning the Roberts (not Robertson) decision of the D.C. Circuit.
(Chief Justice John Roberts recused himself from Hamdan, because he had ruled in the appellate court case before being nominated to the Court; thus, Hamdan was decided by 5-3 instead of 5-4.)
Justice Kennedy joined Justice Stevens' opinion only in part: he agreed that the Supreme Court had jurisdiction, and he agreed that the military commissions lacked constitutionality -- primarily because they were set up entirely by the executive branch of government. Kennedy left the door hanging wide for pretty much the same commissions (with some cosmetic changes) if they were enacted by Congress... which they were last October, as perhaps the last major legislation of the 109th Congress.
Thus, it's reasonable to hope that Kennedy may well uphold Boumediene, now that Congress has spoken. His main concurrance with Stevens was that, since the commissions were not formed by Congress and also differed from the military's procedure in the case of courts-martial, they were not "regularly constituted courts," as required by the Third Geneva Convention, Article 3, section (d), which prohibits --
-- 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.
But even here, Kennedy dissented in part with the latter's extended exegesis on the Geneva Conventions, disagreeing with Justice Stevens whether those "indispensible" "judicial guarantees" gave a detainee the right to see all the evidence against him -- including highly classified information that would reveal intelligence methods and assets. Stevens and the other three liberal justices appear to want detainees to have all the same protections that would apply to an American gang-banger accused of carjacking or pickpocketing.
The dissent by Judge Rogers argues that the military commissions are unconstitutional because they restrict habeas corpus petitions and because they might include evidence derived from what she calls "torture." From the Times article:
In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.
“Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus,” Judge Rogers wrote. “The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”
But the constitutional clause in question, Article I section 9, obviously can only apply to persons under the jurisdiction of the Constitution. Lakhdar Boumediene is not a citizen or resident of the United States, was captured abroad, and has never been held on U.S. soil. The only nexus to America is that he is guarded by U.S. forces.
He clearly is not subject to the protections of the United States Constitution... unless Rogers would also argue that U.S. civilian courts have jurisdiction over Iraqi prisoners held by an Iraqi Army unit that happens to include a couple of embedded U.S. Marines.
"District courts are well able to adjust these proceedings in light of the government's significant interests in guarding national security," wrote Rogers, a Clinton appointee. "More significant still, continued detention may be justified by a CSRT on the basis of evidence resulting from torture."
Despite Rogers' dissent, this ruling is an excellent step towards restoring judicial sanity to the wartime powers of the president. Clearly, we have always in the past believed that enemy combatants can be detained indefinitely ("for the duration of hostilities"); there is no reason why the civilian courts, which have never been involved in such decisions, should suddenly have jurisdiction over POWs, whether lawful combatants -- enemy soldiers -- or unlawful combatants, non-military, ununiformed spies, saboteurs, and terrorists.
Let's hope that Justice Kennedy is now satisfied that the military tribunals are "regularly constituted," and we can get on with the job of fighting the war against global jihadism.
December 17, 2006
The World Turned Rightside Up
You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge James Robertson, the judge who got the Hamdan case rolling in the first place, throwing out the sequel on the grounds that, according to the Military Commissions Act of 2006, the federal courts no longer had jurisdiction over enemy-combatant detainees.
In other words, doing the right thing according to the principle of judicial restraint. It was the world turned upside-down!
Well, the world has righted itself: for now, another different Clinton judge, U.S. District Judge Jeremy Fogel ("the old Fogel," we called him back in February) has used the flimsiest of excuses to find California's (and nearly every other state's) method of execution, lethal injection, "unconstitutional." Fogel held that it violated the Eighth Amendment stricture that "cruel and unusual punishments [shall not be] inflicted."
We previously covered this same case in a number of posts:
- If I Should Ouch Before I Die
- Michael Morales Dead Pool
- Doctors Overturn Death Penalty
- The Old Fogel Has Gotten His Wish
The verdict was expected, natch; back in February, the judge did everything but send spam-mail to the media explaining how he was going to rule, no matter what the evidence.
If you want a detailed analysis of just what's wrong with the judge's decision, you should read Patterico; he's one of those lawyer types, and he can give you all the particulars. But I'm here to give you the view of the ordinary guy who doesn't have the right to write "Esq." after his name (except in the Dutchy of Occulisia, where I'm actually a Peer of the Realm).
So to boil down a nutshell, the judge held that lethal injection was "cruel and unusual" because of the theoretical possibility that some condemned murderer may ouch before he dies:
Today, Fogel said "anomalies in six execution logs raise substantial questions" about whether some inmates "may have been conscious when" the second or third drugs were injected.
Fogel said that "substantial questions" had been raised by the records of previous executions in the state and that the California Department of Corrections' "actions and failure to act have resulted in an undue and unnecessary risk of an 8th Amendment violation."
That is, we don't really know whether it actually happened, but it's just possible that some prisoners might have felt some pain during their executions, in the few minutes before they died.
Actually, it's even worse. The judge tried to conceal his ill-shaped and gargantuan agenda behind a veneer of reasonability by saying that the state could skate -- if they would only adhere to a few simple protocols during executions (from our previous post, The Old Fogel Has Gotten His Wish, linked above):
In the last installment, the court-appointed anesthesiologists point-blank refused to participate in the execution.
The only other option Fogel allowed was to execute Morales by an untried, unapproved overdose of barbiturates. The state planned to do just that before the execution order expired Tuesday at midnight... however, Judge Fogel (a Clinton appointee) then added a new twist: even that lethal overdose must be administered by a doctor, nurse, or medical technician, lest it cause Morales pain:Prison officials had planned to press forward with the execution Tuesday night using the second option. The judge approved that decision, but said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians.
To everyone's great and unexpected shock (including Judge Fogel, I'm sure) no such medical personnel were willing to inject the drug. This might have something to do with the fact that the AMA, the American Society of Anesthesiologists, the California Medical Association, and the various professional national and state organizations of nurses and medical technicians all oppose capital punishment -- and have all declared participation by their members in executions to be "unethical," which could lead to the member being subject to disciplinary actions including the loss of his medical license.
What a beautiful Catch-22! The judge says that lethal injection is perfectly all right -- but only if a doctor or other medical professional administers it... knowing that no medical professional would dare do so for fear of having his license yanked. But hey, it's not Judge Fogel's fault; it's not like he set the rules. (Oh, wait, he did; I mean, it's not like he set the rules of the AMA).
Back to the L.A. Times article. This is an odds-on favorite for an issue-analysis Oscar in the category of "Sounds vague but is in fact meaningless":
The ruling means that it is unlikely that there will be any executions in the state in the near future. It was issued shortly after Florida Gov. Jeb Bush declared a halt to executions there in the aftermath of a botched lethal injection execution this week.
The two actions represented a dramatic development in the long-running battle over capital punishment in the U.S. Just a year ago, even the most vociferous opponents of the death penalty would not have expected challenges to lethal injection procedures to have gained such gravity. But the challenges have resulted in stays of execution around the country.
We are to believe that it never occurred to "opponents of the death penalty" that filing for stays of execution around the country -- and judge-shopping for like-minded jurists -- might result in those stays being granted.
Of course, the California Supreme Court did manage to overturn all 61 executions but one during the tenure of Chief Justice Rose Bird (which tenure ended when she and two of her cronies were forcibly removed by California voters); and more recently, after the Ninth Circus Court of Appeals delayed one killer's execution so many times that the U.S. Supreme Court actually issued an injunction against any further stays.
A reasonable person might conclude that you can always find a federal judge who will weep at the sad fate of a mass murderer.
Thus, in this case, the Time's phrase "challenges... have gained such gravity" -- which evokes an image of the entire country collectively drawing breath and consulting its conscience, in light of staggering new evidence -- merely means a single, anti-capital-punishment judge in California made a stupid ruling that has to be dealt with... before the rest of us can get on with the business of ushering the lawless breed out of this world.
Shouldn't take long.
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.
October 25, 2006
Will They Or Won't They: Pyrrhic Days Are Here Again
Well, at least they didn't go "Full Monty" on us.
The New Jersey Supreme Court stopped short of declaring "a fundamental right to same-sex marriage" in the state, but not so subtlely hinted that the legislators had six months to do one of two things:
- Institute full-blown same-sex marriage in New Jersey;
- Create civil unions so sweeping and all-encompassing that they may as well be marriage -- in everything but name.
There is barely any difference between what the court ruled and going whole hog (can I think of any more metaphorical phrases?), as they did in Massachusetts in the case Goodridge v. Department of Public Health. Like the Massachusetts case, the New Jersey decision was 4-3, as divided as possible, to create a new right ex nihilio (whatever they may claim): the right to civil unions that perfectly mimic marriage.
However, in the Jersey case -- Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05) -- the three dissenters (Chief Justice Deborah Portiz, and Justices Virginia Long and James Zazzali, all appointed by "Republican" Gov. Christine Todd Whitman) only dissented in that they wanted the court to force full-blown same-sex marriage on the state. The Jersey decision is thus actually more left-liberal than Goodridge, because the three dissenters in Massachusetts (Justices Cordy, Spina, and Sosman) actually held that such a decision was properly left to the legislature, not the courts.
Massachusetts Gov. (and likely 2008 presidential candidate) Mitt Romney's response to Goodridge applies equally well to Lewis:
"Like me, the great majority of Americans wish both to preserve the traditional definition of marriage and to oppose bias and intolerance directed towards gays and lesbians," Romney began by way of preface.
Then he asked the question we should all be asking: "Given the decision of the Massachusetts Supreme Judicial Court. . . Should we abandon marriage as we know it and as it was known by the framers of our Constitution? Has America been wrong about marriage for 200 plus years? Were generations that spanned thousands of years from all the civilizations of the world wrong about marriage? Are the philosophies and teachings of all the world's major religions simply wrong? Or is it more likely that four people among the seven that sat in a court in Massachusetts have erred? I believe that is the case."
Then Mitt Romney put his finger on where the error comes from: the limited perspectives of lawyers and judges. "They viewed marriage as an institution principally designed for adults. Adults are who they saw. Adults stood before them in the courtroom. And so they thought of adult rights, equal rights for adults. If heterosexual adults can marry, then homosexual adults must also marry to have equal rights."
But, he went on, marriage is not solely for adults. "Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have a father and a mother."
(I normally don't use such a long quotation from another source; but in this case, Maggie Gallagher, of the Institute for Marriage and Public Policy, is simply quoting from a speech by Gov. Romney, so she has no cause to complain. Now, if Mitt Romney calls and yells at me, I'll have no defense at all!)
In the interests of fairness, and so you won't think she does nothing but quote, here is Gallagher speaking for herself:
The result [of Goodridge] is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples.
Even if there is no process for "citizen initiative" in the state of New Jersey, the legislature itself is certainly empowered to propose changes to the New Jersey constitution (by a 60% supermajority, or by majority vote in two consecutive years); which means a third response to Lewis is to send to the voters a constitutional provision to declare that marriage shall be limited to a man and a woman, that there shall be no "quasi-marriage" civil unions, and to leave it at that.
I am not one of those who would be satisfied by having marriage by another name for same-sex couples, or for groups of more than two, or for brother-sister relationships. I totally oppose civil unions, because experience teaches me that the moment a "civil union" exists, the courts will declare it must be exactly equal to marriage itself. But the whole point is that marriage is a unique institution and should be privileged above all others: that is one of the foundations of liberal Western democracy, along with individual liberty and capitalism.
What are the odds that the New Jersey legislature will propose such a constitutional amendment? I confess I have no idea. The Assembly is dominated by the Democrats (49 to 31), but the state Senate is closely divided, with a slim Democratic majority of 22 to 18. But that tells us little, because many Democrats are sane on this subject and oppose SSM.
If all the Republicans voted for such an amendment (I don't even know if that is likely), it could be sent directly to the voters in a single session with as few as 6 Democratic votes in the Senate (27% of the caucus) and 17 in the Assembly (35% of the Democratic caucus). Alternatively, by as few as 3 Democrats in the Senate (14%) and 10 in the Assembly (20%) in two successive years would also work.
So how about it, New Jersey? Care to step up to the plate and defend Western civilization as we know it?
Will They Or Won't They?
Only the hairdresser knows for sure...
As I write this, the New Jersey Supreme Court has not yet issued its ruling -- expected today -- on whether or not the courts will cram same-sex marriage down Jerseyites' throats. Doesn't anyone else find it ironical that the only way same-sex marriage (SSM) "wins" is when it's foisted upon us, against out wills, by a bunch of guys wearing dresses?
New Jersey could become the nation's gay wedding chapel should the state's highest court rule in favor of same-sex marriages, adversaries on the issue agree.
The New Jersey Supreme Court is poised to release its highly anticipated decision Wednesday in a case brought by seven gay couples who say the state constitution allows them to marry, said Winnie Comfort [see here now, enough of that!], a spokeswoman for the state judiciary.
The entire New Jersey Supreme Court -- which used to be called the Court of Errors and Appeals, until somebody noticed -- was appointed by ersatz Republican Gov. Christine Todd Whitman (before she became the head of the Environmental Protection Agency and it went to her head), and by Gov. Jim McGreevey (and we all know how well that turned out). If the appointees reflect the appointers, we can expect it now comprises seven bisexual adulterers who wring their hands over global whaling.
It's hard to imagine such a court not leaping (gracefully) at the chance to rule in favor of SSM. After all, one can't trust voters to make such decisions, as time and again, they have decided the wrong way. The court, by contrast, knows what is best for voters; and they're going to give it to them, good and hard.
Consider that this same court ruled against the Boy Sprouts when they tried to expel a homosexual member (oddly enough, for not being "thrifty"); however, most of the current membership joined the club after that case was resolved. (I mean joined the court, not the Boy Sprouts; three of the justices wouldn't be permitted, being girls; and the other four probably can't fit into the uniforms.)
Massachusetts is the only state in the union that currently (as of Wednesday morning, 6:00 am) "allows" SSM; and by "allows," I of course mean judicially required the legislature to vote for it. But Massachusetts also has a law preventing people of the same gender from other states, countries, or planets getting hitched if the marriage would be illegal in their home worlds. And I'll lay you eight to one you can't repeat that three times fast.
That is, a California same-sex couple cannot fly to Salem (on plane or broomstick) and get married, because such marriages are agin' the law in the Golden State; so Gavin Newsom and Kinky Friedman are out of luck (I refer, of course, only to their political aspirations, I hasten to assure you and avoid litigation).
But New Jersy has no such law. If the court rules that the Garden State (see, I know these nicknames backwards and forwards) must allow same-sex couples, threesomes, lobster quadrilles, and the entire Mormon Tabernacle Choir to marry each other, then folks will flock (if that is the word I want) to Jersey from the four corners of the globe, just to marry, go home, file for divorce, and sue their home states for violating the fundamental right to apply New Jersey law in Wyoming. The idea is to start up a cascade of lawsuits that will start by forcing same-sex marriage and end by outlawing popery.
I don't know whether New Jersey has a citizens initiative process in its constitution; but if it does, it probably gives preference to recently deceased voters over those who have been dead for longer; so the full electorate (living, dead, and undead) could well be too liberal to pass a defense-of-marriage initiative anyway. So why did I even broach the dreary subject? (If they don't have one, I suggest they submit a citizens initiative to enact a citizens initiative.)
In every state where such initiatives have gone to ballot, they have passed, usually overwhelmingly. It's on the ballot in several states for November, and we'll see how it fares; but I'm taking wagers.
In any event, I think we all have a pretty good idea what the Jersey girls and boys on the court will decide. It's not a question of "will they or won't they," but more like "will they really let their hair down and end the announcement by mooning the state?"
Enquiring voters want to know -- how they shall be required to vote.
October 20, 2006
In Shocker, Arizona to Restrict Voting to Legal Voters
A lot of us are really scratching our heads... not at this U.S. Supreme Court ruling (overturning an injunction), but at the fact that the underlying law is even controversial at all:
Arizona voters will have to present identification at the polls on Nov. 7 after all.
The U.S. Supreme Court ruled Friday that Arizona can go ahead with requiring voters to present a photo ID, starting with next month's general election, as part of the Proposition 200 that voters passed in 2004. The ruling overturns an Oct. 5 decision by the 9th Circuit Court of Appeals, which put the voter ID rules on hold this election cycle.
Now, this was not a ruling on the merits of the case. Rather, the 9th Circus Court of Appeals -- the most overruled circuit court in the nation -- issued an injunction on October 5th to prevent the 2004 law from going into effect... even though it already had gone into effect during the primary election.
What happened today is that the Supreme Court overturned the injunction by the 9th Circus:
The Supreme Court on Friday did not decide whether the new voter ID rules are constitutional. That decision is still pending in federal district court.
Instead, the court decided that the 9th Circuit made a procedural error by granting an injunction to put the new rules on hold without waiting for the district court to explain its reasons for not granting an injunction.
The Court ruled that the 9th improperly rushed to grant the injunction -- in my own opinion, because they were desperate to prevent it from being applied in the 2006 general election -- and that they should have waited to hear the reasoning of the district court for why they refused to grant an injunction earlier.
Since there is no way that the district court and the appellate court can have their exchange before November 7th, that means that Arizona will become a test case for the radical, new concept that only American citizens who are legally empowered to vote -- should be allowed to vote.
It's clear why Democrats are so worried about this law, as well as a similar federal law that was passed by the House of Representatives this term... yet another great bill passed by the Republican majority with virtually no Democratic help: the final vote on September 20th was 228 Ayes, only four of them from Democrats, to 196 Nays, all but three of them Democrats (counting Socialist Bernie Sanders as a Democrat, since that's who he caucuses with).
196 out of 202 Democrats, 97% of the party, voted against requiring citizenship ID in order to vote. Why? Because a large number of Democrats are elected with the help of illegal votes from non-citizens and felons.
If a wave of states, especially in the Southwest and possibly California, begin enacting laws requiring voters to show actual proof of citizenship before voting (or if the federal Congress does so nationally), then all of a sudden, we're going to have a lot fewer Democrats in the House.
I expect the Democrats to filibuster the House bill when it comes up in the Senate during the lame-duck session following the election; and Democratic-controlled state legislatures (such as California's) will never enact such bills. But as Arizona's Proposition 200 shows, state citizens can pass referendums for such a common-sense reform.
Let's keep our fingers crossed that when the Supreme Court actually rules on the merits (as I'm sure they will, if they lifted the injunction), that they actually uphold it. It's hard to see how this could violate the National Voting Rights Act of 1965, since there is no impermissible literacy test or any other racially based test for voting. Even when the Act was passed, everybody, including every member of Congress who voted for it and the president who signed it (Lyndon Johnson). Since there is provision for indigent voters to receive their ID for free, you can't even ding it for being an illegal poll tax.
It's time we reintroduced sanity to the electoral process. No Democratic politician has the guts to stand up and actually propose that non-citizens be allowed to vote; they want the courts to do it for them.
Not even legally resident aliens supposed to vote, let alone illegals; there is no coherent reason to refuse to check voter identification... other than a desire to circumvent the law and let non-citizens determine the results of American elections, to the advantage of the Democratic Party.
October 16, 2006
The Cagey Coronor
Actually, it's not really a "court decision;" but that was the closest category I have, and I didn't think it necessary to create a new one for a single story.
When I first read this tale Friday the 13th, I meant to blog on it, but it slipped my mind. But then a hiccough in the finely tooled Reuters machine caused a list of old stories to bubble up on their Excite RSS feed, instead of the new stuff. Seeing this thing a second time jogged my memory; and here we are, wherever that is.
This story is so explosively anti-Bush -- yet has created so little a stir in the antique media -- that I suspect they're just as skeptical about it as I:
One of Britain's most experienced journalists was unlawfully killed by U.S. soldiers in Iraq, a British inquest into his death ruled on Friday, prompting calls for the perpetrators to be tried for war crimes.
Veteran war correspondent Terry Lloyd, 50, who worked for British television company ITN, was killed in March 2003 in southern Iraq as he reported from the front line during the first few days of the U.S.-led invasion....
The ITN News crew, which unlike most journalists covering the war was not attached to any U.S. or British unit, had first come under fire at Iman Anas, near Basra, while driving toward the port city in two vehicles marked "Press."
Lloyd, who had reported from Iraq, Cambodia, Bosnia and Kosovo during his award-winning career, was initially wounded in the stomach. He was then shot in the head by U.S. troops after he had been picked up and put in an Iraqi minibus, the inquest heard.
Note the obvious implication: the Americans must have stopped the minivan, gone inside, identified Lloyd, realized he was a journalist, and killed him execution style!
But in fact, other reporting makes clear the minivan was in a crossfire between Saddamite Iraqi and American forces, and was hit by machine-gun fire from either an American tank or helo; one bullet happened to hit Lloyd in the head. There was nothing deliberate about it, and no evidence was offered that any American had any idea a journalist was in the minivan (in fact, video evidence shows that we were shocked to find him there).
It appears from the story that nobody at the inquest took any evidence from the Pentagon; the article says that the soldiers declined to attend -- understandable, since they might have been summarily seized and held; and even the writer of this article, Eleanor Wason, seems never to have bothered calling for comment. The only response from the DoD is clearly a generic, pro-forma defense, probably lifted from some press release, probably issued at the time of the death:
U.S. Army Colonel Gary Keck, a Pentagon spokesman, said the death was a "tragic accident."
"We do not nor would we ever deliberately target a non-combatant, civilian or journalist," he said.
"We will continue to work with news organisations to do everything realistically possible to reduce the risk on an inherently dangerous battlefield but we must remember that there are inherent risks in covering a war."
A Washington Post article sheds some light on the lack of interest in contrary testimony: in fact, a number of soldiers submitted written testimony, but the coroner, Andrew Walker -- who appears to have functioned as both prosecutor and judge in this affair, making it more like an American grand-jury proceeding than a trial -- refused to allow the written testimony to be entered as evidence, since the soldiers didn't show up in person to be clapped in irons.
But videotape evidence and even testimony at the hearing show that the shooting happened in the middle of a firefight between American and Iraqi forces at the beginning of the war, before Saddam Hussein's government collapsed:
According to a videotape provided by the U.S. military and testimony from witnesses, including an ITN cameraman who was at the scene, Lloyd, 50, was killed after being caught in crossfire between U.S. and Iraqi forces near the southern Iraqi city of Basra on March 22, 2003.
The British coroner said Lloyd was shot in the back [back or stomach?] by Iraqi soldiers who had overtaken his four-wheel-drive vehicle. Lloyd then walked to a civilian minivan and was being driven away for medical treatment when U.S. forces opened fire on the van, killing Lloyd with a shot to the head, Walker concluded.
"There is no doubt that the minibus presented no threat to the American forces," Walker said. "There is no doubt it was an unlawful act of fire upon the minibus."
My first thought upon reading that was, how much combat experience does Coroner Walker have? How is he able to tell whether American soldiers -- in a war -- in the midst of combat -- with an actual enemy army -- did or did not see a moving vehicle on the battlefield as a threat? My second thought was that if this is the sort of "impartial" justice American soldiers can expect to receive in Oxford, then it's no wonder we're not willing to hand our soldiers over to such tender mercies.
The hysteria surrounding this death, including the inevitable implication that Lloyd was deliberately shot to death execution-style while he lay wounded, sounds remarkably like the fabricated claims that American soldiers "assassinated" Nicola Calipari, the negotiator who got Italian pseudo-journalist Giuliana Sgrena (a self-professed Communist who works for the Communist Party propaganda sheet Il Manifesto) out of her supposed captivity in Iraq.
In fact, the investigation in the Sgrena case ultimately showed that the car holding her tried to run a security checkpoint -- probably to avoid answering embarassing questions about whether they paid the terrorists a ransom -- and was fired upon by a National Guard specialist (a number of lefty blogs misunderstood and falsely reported that the guard was Special Forces, rather than a specialist; I suppose it fit the "assassination" theory better). The gunfire, aimed at the engine block, went through the windshield and fatally wounded Calipari.
But Sgrena instantly accused the Americans of trying to assassinate her, presumably because we were so frightened that she might denounce us in her Communist rag. And Italian authorities jumped to obey, charging the specialist with "political murder" (that is, assassination). The U.S. has said it has no intention of handing him over (I'm deliberately not using his name, and I will delete any comment that names him; he has suffered enough for just doing his job). However, the Italians now threaten to try him "in absentia."
I suspect the Terry Lloyd death will be dealt with similarly: Coroner Walker will continue insisting that we deliberately shot Lloyd... never mind the fact that there were many embedded journalists, a great many whom were anti-war from the beginning and reporting on "quagmires" and "friendly-fire incidents" and that we couldn't possibly win the initial phase; why would we be especially frightened of one more? And a foreign journalist, to boot, whose broadcasts would have significantly less impact here than those of lefty American broadcasters like Dan Rather or any of the one-the-ground reporters for CNN.
When the Pentagon refuses to yank the soldiers off of the line or pull them out of duty in Afghanistan or the Horn of Africa or wherever they heck they are to send them to a kangaroo court in Oxfordshire, I'm sure that Walker and the widow and child of Lloyd will demand they be tried not only in absentia but also anonymously. The wheels of justice grind exceeding fine indeed.
ABC ran a story, but it adds only slightly to the narrative. Here are the two most interesting parts:
The coroner said Friday that a civilian drove up in a minivan, pulled a U-turn and picked up four wounded Iraqi soldiers, then saw Lloyd with a press card around his neck and helped him into the van. Lloyd was shot in the head as the van drove off toward a hospital, the coroner said.
First of all, how does the coroner know that the minivan "drove off toward a hospital?" Did he consult a street map of Iman Anas, figure out where the hospital was, and deduce that that's where the minivan was headed?
But the second tidbit here is even more telling: before picking up Lloyd, the minivan picked up some Iraqi soldiers. The soldiers were supposedly wounded; but how should Americans know this when they see it driving around? There is no evidence we saw the minivan pick people up. Clearly, it was fired upon sometime later, because they subsequently picked up Lloyd and were shot at by the Americans after that point.
So if the Americans could see into the minivan at all, what would they see? An unmarked minivan full of Iraqi soldiers, possibly still armed, driving around a battlefield during an ongoing firefight. Yet Coroner Walker believes we should have known that the Iraqi soldiers were wounded, and that there was also a wounded British broadcaster -- shot by the Iraqis -- inside as well.
Some "war crime." The full story is a far cry from there being "no doubt that the minibus presented no threat to the American forces."
Here is a fascinating point that evidently came out at the hearing -- but was not deemed particularly important by the coroner. From the ABC story:
ITN cameraman Daniel Demoustier, the sole survivor, told the inquest that ITN's pair of four-wheel drive vehicles were overtaken by a truck carrying Iraqi forces and that gunfire erupted. [From the Washington Post story, we know that "erupted" means the Iraqis opened fire, hitting Lloyd in the back. Or the front, per Reuters.]
"The hell broke loose completely. I was absolutely sure I was going to die," Demoustier told the inquest. Driving blindly in smoke, Demoustier said he realized the passenger door was open and Lloyd was gone.
Demoustier, a Belgian, said he jumped from his flaming car and lay in the sand, waiting for the shooting to stop. Demoustier said he tried to stand to signal U.S. tanks in the area but that they resumed firing at the clearly marked ITN vehicles.
So in other words, the ITN vehicles -- and likely the minivan as well -- were right in the middle of a crossfire, with Iraqi forces on one side and American tanks on the other (unless you prefer believing we were actually sitting side by side with the Republican Guard, both of us collaborating in pumping lead into newsvans instead of fighting each other).
So even if the minivan itself were no threat, the Iraqi vehicles using it as cover to shoot at us were. Did Coroner Walker consider that possibility? Did he investigate the line of fire to see whether we were shooting at the minivan and the ITN SUVs -- or shooting at the Iraqis hiding behind them? Certainly nothing in any of the small handful of stories about this hearing tell us whether he bothered or not.
Perhaps this is why the American elite media have by and large not lined up behind this story the way they swarmed around, e.g., Abu Ghraib, the al Qaqaa ammunition dump, or even (heaven help us) Mark Foley. Maybe they remember how they got their heads handed to them following the revelation of the true story of the Sgrena "assassination", when satellite pictures clearly showed the car traveling very fast into the checkpoint and not decelerating before the soldiers fired upon it. Once bitten...
We'll see what happens over the next three weeks. At some point, the Democrats may decide that any such debunking can be suppressed until November 8th; and they may instruct their propaganda wing, the mass media, to run with it anyway. (Or maybe some Democratic candidate will use it in an ad slandering his opponent.)
But at the moment, everyone appears to be eyeing this story warily, rather than embracing it with both arms and a thigh.
October 11, 2006
Gunpowder, Treason, and Plot
Something happened today that has not happened before in my lifetime, and I daresay in the lifetimes of most of our readers: an American, Adam Yehiye Gadahn, was actually indicted for treason:
A grand jury returned the indictment against Adam Yehiye Gadahn, 28, a suspected al-Qaida operative sought by the FBI since 2004, said the official, who asked to remain anonymous because the indictment was to be announced later in the day....
Gadahn appeared last month in a 48-minute video along with al-Qaida's No. 2 leader, Ayman al-Zawahri, calling on his countrymen to convert to Islam and for U.S. soldiers to switch sides in the Iraq and Afghan wars.
I have mixed feelings about this:
- On the one hand, we need to get over our absurd fear of charging and prosecuting this crime. It's a difficult one to prove -- properly so; but when the evidence is clear, there is no reason to shrink from it.
- But on the other hand, the Founding Fathers made that charge extremely difficult to prove up for a reason: in the days of King George III of England, the charge of treason was flung about willy-nilly as an all-purpose way to shut one's political enemies up -- permanently.
But on the third hand, in the modern era, where nobody has been convicted of treason for 54 years, more and more Americans seem to think they have sovereign authority to make war upon the United States without serious consequences. Maybe if we began enforcing the law, fewer people would break it.
(Note, this reasoning also suggests that we should start prosecuting newspapers and their officers under the espionage act, when they have revealed highly classified national-security programs, in the hopes they will cease doing so.)
- Plenty of Americans seem to think that treason is a joke, a lark, or perhaps a profitable business; and we rarely prosecute them for this most serious of charges. We let them get away with pretending they're just daring defenders of various constitutional rights (hence, they must fight on behalf of an enemy that rejects all rights whatsoever.) It would be worth this prosecution just to wipe the infantile smirk off their faces.
On the whole, I'm glad we're doing this... if for no other reason than I'm curious to see whether any jury has the belly to assume its responsibility to apply the law, even when the charge sounds so scary and other-worldly.
No American has been convicted of treason since Tomoya Kawakita, who had dual citizenship in both Japan and the United States; he was convicted on June 2nd, 1952 and sentenced to death for several counts of torturing American prisoners of war in Japan. President Eisenhower commuted the sentence to life in prison. The President Kennedy pardoned him in 1962 and deported him to Japan.
Some other World War II defendants convicted of treason were:
- Mildred Elizabeth Sisk, a.k.a. Mildred Gillars, a.k.a. "Axis Sally," convicted of one count in 1949 (paroled in 1961);
- Iva Toguri D'Aquino, a.k.a. "Tokyo Rose," convicted in 1949 of being one of the "Tokyo Rose" broadcasters (the others were never tried), sentenced to ten years, paroled after six, and pardoned by President Ford in 1977;
- And Hans Max Haupt, father of Herber Hans Haupt, one of the German saboteurs who were arrested in the United States in 1942, convicted by military tribunal, and executed that same year (of the eight saboteurs, two ratted out their co-conspirators and received lesser sentences, which were then commuted to deportation). The father, Hans Max Haupt, was convicted of treason for aiding and abetting his son in March of 1947 and sentenced to life; I don't know if he was ever paroled or pardoned.
There are plenty enough traitors around now that we ought to revive this charge. I'm certain this will create absolute hysteria among Democrats -- another good reason to do it! -- though if they're wise, they'll wait until after the election... don't want to spook the herd, after all.
Back to Gadahn, or Azzam al-Amriki, Azzam the American, as he was known to his Moslem brothers. Showing an extraordinary grasp of just the right words to bring American soldiers and Marines to his side, Gadahn was shown in a video saying the following:
"If the Zionist crusader missionaries of hate and counter-Islam consultants like ... the crusader and chief George W. Bush [sic, I'm sure he meant "crusader IN chief"] were to abandon their unbelief and repent and enter into the light of Islam and turn their swords against the enemies of God, it would be accepted of them and they would be our brothers in Islam," Gadahn said in English.
I'm sure the heart of every Marine who heard that call swelled in patriotic agreement.
Adam Gadahn is probably just an idiot kid having fun playing traitor. I really want to see his neck stretched and his feet dancing on air; but even if convicted, he'll probably get less than a three-time carjacker in Los Angeles.
Treason is notoriously difficult to prove in court because it's defined in the Constitution, no less -- Article III, section 3:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Thus, we need two witnesses to the same offense; but since Gadahn saw fit to videotape his treasonous acts (levying war, adhering, and giving aid and comfort -- the Trifecta!) perhaps that won't be hard. I don't know if the court will accept viewing the videotape as evidence equivalent to witnessing the actual act, but maybe we have witnesses who actually saw and heard him with their own eyeballs and earballs.
This is history, folks. If any of you ever witnessed an American treason trial before, it must have been when you were impressionable kids. I hope large portions of it are broadcast on C-Span. It would be instructive, not only to loyal Americans, but to those loyal to a baser cause.
October 6, 2006
It Just Keeps Getting Better and Better
In my previous post, Judicial Tyrants Teetering On the Brink, I discussed the California state appellate court that overturned the ruling by a San Francisco court requring same-sex marriages (SSMs) in this state, regardless of the 2000 ballot measure that restricted marriage to one man, one woman. I rather gloomily (and perhaps prematurely) wrote the following:
The sad part is that it was evidently an integral part of the ruling that in California, domestic partnerships are virtually the same as marriages.
In this, I foolishly relied upon the Associated Press story, which stated in unambiguous terms:
In reversing the March 2005 ruling of a San Francisco trial judge, the 1st District Court of Appeal agreed with the state's attorney general, who argued that California's ban on same-sex marriage does not discriminate against gays and lesbians because of the state's strong domestic partner law.
Lawblogger Xrlq was skeptical, however. Having at least skimmed the primary source (the court's opinion), he commented that "What I've seen so far indicates that the principal holding was that marriage is what the legislature/voters say it is - not that gays have a fundamental right to marry, but that right is satisfied by the domestic partnership law."
Intrigued (and more hopeful), I scurried after later, completer articles, and I found this Reuters piece. It completely backs Xrlq's position; if anything, it goes even farther... the state circus in fact enunciated a ringing endorsement of democracy over judicial tyranny:
"The Legislature and the voters of this state have determined that 'marriage' in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning," the California Court of Appeal held.
"We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem," it said in a majority opinion written by Justice William McGuiness....
The appeals court reversed a lower court, which had overturned California's ban on gay nuptials in a lawsuit triggered by the marriage licenses San Francisco briefly issued to same-sex couples in 2004.
"Courts in this state simply do not have authority to redefine marriage," the appeals court said.
It said a voter initiative or legislation would be required to legalize same-sex marriage.
This is a tremendously stronger slapdown of the SSM crowd than AP reported, and I am correspondingly much happier with it. However, one of the judges, Justice J. Anthony Kline, dissented. I hesitate to characterize his dissenting argument on the basis of a media account ("once bitten..."); but since Reuters seems to have gotten the rest of the story right (that is, it matches Xrlq's read of the opinion), I'll go for it.
Kline dissented on the grounds that domestic partnership laws constitute an unconstitutional "separate but equal" institution:
In its ruling Thursday, the court noted gay couples in California have rights comparable to married heterosexuals thanks to domestic partnership laws.
But gay rights activists said comparable rights are not equal rights, and, citing Justice J. Anthony Kline's dissent, they said the majority carved out an unconstitutional "separate but equal" standard for gays by supporting domestic partnerships, which Kline compared to laws enforcing racial segregation.
The domestic partnership act is "a form of pseudomarriage that stigmatizes homosexual unions in much the same way 'separate but equal' public schools stigmatized black students," Kline said.
"Like separate educational facilities, domestic partnership and marriage are 'inherently unequal,"' he said.
This is an emotionally powerful argument, but it's logically flawed. Let me take a few thousand words to show why that's obvious...
Origins of desegregation
First, what is the point of the Civil Rights Amendments and the racial desegregation they ulimately spawned? Prior to the Civil War, North America had a 250 year history of racial slavery stretching back long before the founding of America; and the West had an even longer tradition of racial slavery. (So did the Arabs and Turks, but that's irrelevant to this point.)
The Civil War was fought, whatever Southerners might absurdly argue, to end the practice of slavery. There were proximate causes, but that was the underlying one. But why is slavery wrong? Why should we put 600,000 soldiers into the ground just to end an institution that had stood in this place for two and a half centuries?
The Civil War was fought over the unique and unprecedented proposition that underpinned the very founding of our country:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
In the end, no argument for slavery, no matter how recondite, could batter down this simple, "self-evident" truth... if all men are created equal, then how can a whole race of men be condemned to slavery merely because of their skin color?
Once the nation finally accepted that argument (with the Civil War as a resounding exclamation point), desegregation was the inevitable result: because people being what they were, segregated public institutions, even if they began as equal, would in short order become very unequal.
But not all inequality is wrong, let alone unconstitutional. We do not outlaw income disparity; nor do we follow the lead of Kurt Vonnegut's seminal short story "Harrison Bergeron" and handicap the talented so that they're no better than everyone else. What we hold to be "self-evidently" equal is the essence of personhood; and the laws we strike down are those that discriminate solely upon what a person is, not what he chooses to do.
Thus, the actual corollary to the segregation laws for gays would be a law that said, for example, that children determined to have "homosexual tendencies" were required to be educated in separate schools from those other kids who have "heterosexual tendencies."
So the first error in Kline's argument is that the marriage laws do not discriminate in such a fashion; they don't even mention heterosexuality or homosexuality -- and such a distinction is necessary for a law to discriminate against a person, rather than against an action: without a detailed description of the subset of humanity that is to be put down, how would anyone know who to discriminate against?
Segregationist laws always included a legal description of what makes a person black or white. The marriage laws contain no such distinction between heterosexual and homosexual... so right away we know Kline's argument is off base.
Moreover, the laws are exactly the same for all genders and sexual preferences.
Jon Davidson of the gay rights group Lambda Legal said the California law was unfair, and legal analysts expect lawsuits over same-sex marriage will continue for years across the United States.
"This violates a fundamental right that all people have in California, which is to marry a person of their choice," Davidson said.
But this is nonsense; there is no such right "to marry a person of their choice." There are many rules:
- You can only marry a person of the opposite gender --
- Who is not already legally married --
- Who is not too consanguineous to you --
- Who is of legal age --
- And who consents to marry you;
- In addition, you must obtain a marriage license first.
(There may be other restrictions as well.)
Note that the exact, same rule applies to men and women, to gays and straights, and to all races. There is no extra restriction on gays; a gay man can marry any woman who fits the above requirements, just as a lesbian can marry any man who qualifies as above... just as with straights.
Not even SSM advocates actually argue that the law is different for people with different sexual preferences; what they really argue is that it's easier for straights than gays to obey it. It's a disparate-impact argument, not an equal-rights argument: since it's harder for gays to find an opposite-sex person they want to marry than it is for straights, they argue, it should be unconstitutional.
But it's likewise harder for swingers to find a single person they want to marry; they would prefer to marry half a dozen folks together. So does that mean the Constitution requires we legalize polygamy?
At this point, I start to get out of my legal depth: I only play a sea-lawyer on the web... I'm not really an attorney! Even so, it's my understanding that "disparate impact" theory is based in statute -- specifically, Title VII of the Civil Rights code, which relates specifically to employment discrimination. Beyond the obvious (marriage is not an employment contract), there is also the fact that even if some statute could be stretched to apply a disparate-impact theory to marriage, it would be a general statute... and there is a more specific statute, the Defense of Marriage Act, that explicitly restricts marriage (in federal cases) to one man and one woman; in addition, nearly every state has a similar act either as state law or in the state constitution.
The specific trumps the general, so this argument collapses upon inspection. Marriage laws are not in any way "unequal;" and if they have a disparate impact on people who prefer to marry members of the same sex -- or who prefer to marry their first cousins or marry two women at the same time, or marry a woman who doesn't want to get married -- that's too bad for them, but it doesn't make marriage law unconstitutional.
Finally, there is the ultimate question: who controls society? Another element of the Declaration of Independence -- which is actually federal law, by the way, one of the "Organic Laws of the United States" -- makes the answer to that question very clear:
To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
In no state of the United States have "the governed" ever consented to SSM; but if they did, I would argue that they do have that right: if the good people of the Commonwealth of Massachusetts were to enact through referendum (or through their legislature without the lege being compelled by the courts) laws allowing gay marriage, sibling marriage, or polyamorous marriage, I say fine; that is the job of the democratic arms of government, not the judicial.
When the courts order SSM, they usurp power that rightfully belongs to the voters. There is no clause nor amendment to the Constitution or any state constitution that says people have a "fundamental right" to "to marry a person of their choice;" some courts simply made that up, like the "right" to an abortion.
So there is a clear separation of powers argument against SSM that I doubt Justice Kline even considered.
The end -- at last!
As usual, it takes a powerful lot more argument to knock down a crazy theory than to propound one. But this is a nutter idea, that denying the "fundamental right" of gays "to marry a person of their choice" is the legal and moral equivalent of the discredited "separate but equal" doctrine. Such an argument results from the muddled and narcissistic emoting that masquerades as ratiocination at university today, where what matters is not what folks do -- but how they feel about themselves.
It has no place in a court of law.
See? I told you it was obvious!
October 4, 2006
Carter Judge Slapped Down By Circus
On August 17th, we wrote about 5-named Carter appointee Judge Anna Katherine Johnson Diggs Taylor, a Motown judge who took it upon herself to decide whether the president can intercept communications of al-Qaeda terrorists... and in fact, whether Congress can even allow the president to do so.
"The game is afoot," as Sherlock Holmes said. (Oh yes he did; in "the Adventure of the Abbey Grange," for example.)
The first federal judge has struck down President Bush's NSA al-Qaeda intercept program as an unconstitutional violation of the First Amendment. Anna Katherine Johnston Diggs Taylor ruled for the plaintiff in a lawsuit filed by the American Civil Liberties Union [the AP link is now dead]:
The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, monitoring phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.
Now, ordinarily, when a judge overturns such a major program as this, especially when there are significant constitutional questions, she will stay execution of her own ruling until the relevant appellate court rules. Maybe I'm mistaken about this, but I sure recall seeing many other judges stay their own rulings; lawyers, am I wrong about this?
But in the Case of Anna Katherine Johnson Diggs Taylor, she refused to do so: rather, she agreed only to stay her ruling, demanding the immediate cessation of the NSA al-Qaeda intercept program, for a single week. That is, she demanded that if the circus court of appeals wants to stay her ruling until they can rule, they'd bloody well better act quickly -- on her schedule, not theirs:
A federal judge in Detroit who has ruled President Bush's Terrorist Surveillance Program unconstitutional Thursday gave the federal government one week to get a higher court to say whether the eavesdropping program should be allowed to continue while her ruling is appealed.
Under the ruling by U.S. District Judge Anna [Katherine Johnson] Diggs Taylor, the National Security Agency program, under which wiretaps can be obtained without first getting warrants, would have to cease Thursday, unless the 6th U.S. Circuit Court of Appeals rules otherwise.
Well, if she wanted to provoke a reaction from the 6th Circuit -- she got one. Today, the Ohio-based court issued its own stay of execution. I can only imagine how irked they must have been, with district court Judge Anna Katherine Johnson Diggs Taylor telling them, in essence, to dance when she plays the tune:
The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.
Actually, I think that's a lot of explanation. Evidently, all three judges believed the following:
- There is a substantial likelihood that they will overturn Anna Katherine Johnson Diggs Taylor's opinion striking down the terrorist communications interdiction program;
- If the program were ended, it would substantially damage United States national security;
- And that there is a strong public-interest argument in favor of the program to counter the public-interest argument against it.
While it's rhetorically dangerous to leap to the conclusion that the circuit court will overturn the district court merely because they agreed to issue a stay, when the decision is unanimous, I think there is at least significant cause for optimism.
So the bony hand of the long-gone administration of James Earl Carter reached out, clutching for its last grasp at anti-Americanism; but it got slapped away by the 6th Circus. I wonder if Anna Katherine Johnson Diggs Taylor stamped her foot like Rumplestiltskin when she heard?
July 14, 2006
The "Loving" Cup
In another shocker today, the 8th Circuit Court of Appeals overturned a lower-court ruling and restored Nebraska's constitutional amendment restricting marriage to the traditional one man, one woman it has always been. Once again, radicals seeking to destroy marriage as a unique institution were thwarted.
In fact, this is happening so often, I'm going to have to stop calling it a "shocker." (Dang, I kind of like the word.)
In addition, the ACLU, which had sued to prevent voters in Tennessee from even being allowed to vote on a similar constitutional amendment, was told to take a hike by a unanimous Tennessee Supreme Court (oddly, the New York Times article linked above fails to clarify which court made the ruling, attributing it only to "the high court;" I had to turn to the Nashville Tennessean to find out which "high court" ruled -- state or federal).
The Tennessee Supreme Court held that the ACLU lacked standing to sue in the first place. Three cheers for sanity!
The original ruling in the Nebraska case -- the one the 8th Circus just overturned -- was handed down by Judge Joseph F. Bataillon (type Bataillon,Joseph into the text box), who was "nominated by William J. Clinton on January 7, 1997." (Again, I had to turn to a third story to find out this information; Jeez Louise, is there some reason the Times cannot simply put all the relevant details in a single place?) I'm sure you're all as shocked as I that a radical federal judge turns out to be a Clinton appointee.
In the Nebraska case, U.S. District Judge Joseph Bataillon had ruled that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.
The 8th U.S. Circuit Court of Appeals disagreed, saying in its ruling Friday that the amendment ''and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.''
Seventy percent of Nebraska voters approved the ban in 2000.
Note that the court applied the proper test: the "rational basis" test, not the "strict scrutiny" test that many same-sex marriage (SSM) activists want them to use. This recognizes that sexual preference is not now and never has been a protected class, as race and sex are.
A law that restricted who blacks could marry would rightly receive strict scrutiny -- and would rightly be overturned (as such laws generally were in Loving v. Virginia, 388 U.S. 1, decided by the U.S. Supreme Court in 1967). Similarly, a law that said that women could not marry without their father's permission would receive strict scrutiny -- since it applied to women as a class -- and would rightly be struck down.
As a society, there is a consensus that liberty includes a "zone of privacy;" hence, there was virtually no "outrage" among ordinary people when the Supreme Court decided in Lawrence v. Texas, 539 U.S. 558 (2003), that laws against "sodomy" were unconstitutional. Conservatives generally oppose the decision; but there simply is not the visceral rage that there is due to, say, Roe v. Wade.
Warning! Controversy alert!
And when you try to pin social conservatives down -- do they actually support the state of Texas telling them, personally, what kind of sex they may have with their wives? -- they do a lot of squirming and tap dancing... because deep down, even conservatives believe that there should be a zone of privacy; they just find gay sex "icky" enough that they hypocritically don't want to extend those privacy protections to homosexuals.
So virtually everyone, even social conservatives (whether they admit it or not -- hypocrisy is the tribute vice pays to virtue), supports the idea of a "zone of privacy" into which government may not intrude except for very, very strong reasons.
But legal marriage is not a "private" act; it is a public affirmation. It is a special category of relationship, one that is granted many privileges... and recognition and celebrity cannot be demanded; society, collectively through the vote, has the final authority on which relationships it will celebrate and which it will not.
People whose sexual preference is "same gender" have never been a "protected class" in society, because there has never been a consensus within society that there is no legitimate distinction between heterosexuality and homosexuality. Rather, most people find moral distinctions, child-rearing distinctions, and distinct social attitudes associated with traditional marriage and with SSM; it's entirely rational that citizens should choose, through the vote, which type of relationship they will sanction by law.
Individual states here and there (such as California) have inserted sexual-preference protections into the state constitution -- typically via the legislature, not the voters directly. But when the people of even those liberal states subsequently speak directly in an initiative, as California voters did just six years ago, clearly expressing opposition to this action by their supposed representatives, and in the absence of a clear and contrary federal consensus, courts are obliged to acquiesce.
Currently, 45 states strictly define marriage as a relationship between one man and one woman; there is no state that has ever voluntarily enacted "gender neutral" marriage; the only state that allows SSM is Massachusetts, and that was due to a radical, irrational decision by the Supreme Judicial Court of Massachusetts.
Supporters and opponents alike of traditional marriage in Massachusetts agree that if a state constitutional amendment is offered up in the state legislature, it will have enough votes to be sent to the people. And both sides likewise admit that if the people of the commonwealth are ever allowed to vote, they will overturn the court decision and restore Massachusetts to marital sanity. That is why liberals have worked so hard to prevent the amendment even from being brought up in the state senate for its second reading: they know they will lose, but the Cause is so important to them, they'll stave off the terrible day by overthrowing democracy itself.
We discussed this very point in an earlier post:
The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)
We made a point then of saying we were not defending, in that post, the restriction of marriage to the traditional model. This time, we are. This time, Big Lizards tackles the toughest challenge to the traditional view, call it the "Loving" Cup, after Loving v. Virginia:
Why is it acceptable to ban same-sex marriage -- but unconstitutional to ban mixed-race marriage? Slither on to find out.
In Loving v. Virginia, the Supreme Court unanimously struck down a Virginia anti-miscegenation law titled the "Racial Integrity Act of 1924." The law was explicitly passed to maintain a strict separation between the races by preventing people of "different races" from marrying. It was passed during the peak of the Eugenics movement in the United States, when many worried about "degenerates" reproducing and damaging the purity of essence of the American people. Racism played easily into eugenics, as simpletons quickly learned to associate "degeneracy" with color.
In upholding the law, the Virginia state trial court Judge Leon Bazile made the intent crystal clear:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
There was, thus, no doubt that the sole purpose of the Racial Integrity Act was to separate the races; its very name makes that obvious.
When the Supreme Court unanimously struck it down (thus, by extension, all such laws nationwide), Chief Justice Earl Warren wrote the following in the opinion:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
(I will not turn this post into a referendum on Earl Warren; I disagree with many of his opinions, but not this one.)
These two opinions perfectly frame the controversy. It should be clear why SSM proponents constantly bring up Loving as the synecdoche of their argument. But to do so, they must drop the most critical component of Warrent's opinion, and indeed of the Court's decision: the inherently invidious distinction of race.
Chief Justice Warren did not conclude that "the freedom to marry, or not marry, any person the individual chooses resides with the individual and cannot be infringed by the State;" he very explicitly limited the decision to restrictions based upon "invidious racial discriminations."
This was no accident. The history of the 13th (1865), 14th (1868), and 15th (1870) Amendments to the United States Constitution -- the "Civil Rights" Amendments -- makes absolutely clear that they were addressed to race, even though race is not even mentioned in the most important of these, the 14th Amendment.
Since the very beginning of our republic, racial slavery had been a terrible controversy that almost aborted the United States before it was born. The southern states absolutely refused to give up slavery, while the opposite majority refused to accept it.
The Founders made two compromises to get the Constitution enacted and ratified:
- First, the slave trade, the "importation" of slaves, was effectively abolished as of 1808, twenty-one years after signing of the Constitution (Article I, section 9); it was left to Congress then, but a majority in Congress had wanted to abolish slavery altogether from the very beginning;
- Second, southern states wanted to count slaves in their censuses in order to get more representatives in Congress, even while they denied liberty to such persons; but northern states wanted slaves to be counted not at all, on the thesis that denial of liberty denies humanity: slaves could not be chattels when that suited the South's purposes and simultaneously men when that suited. Eventually, the states compromised that slaves could only be enumerated at 3/5ths their number for purposes of taxation and congressional representation (Article I, section 2).
But the compromises were insufficient; we drifted closer and closer to civil war over the issue of slavery throughout the nineteenth century. Eventually, the inevitable happened (hence the word "inevitable"): America fought the most vicious and destructive war of our entire history over the issue of racial slavery.
(Today's Southerners, feeling latent guilt for the crimes of their ancestors, often claim the war was not fought over slavery but over "state sovereignty." Next time, ask them which act of state sovereignty in particular sparked the rebellion; watch 'em temporize like a liberal!)
There is a lot of controversy over the ratification of the 14th Amendment, since ratification was required as a condition for rebelling states to be readmitted to the Union. But there is no question that by 1967, even the southern states would have ratified the 14th Amendment without having to be occupied by federal troops... since by then, blacks were allowed to vote. (Interestingly, the 15th Amendment -- allowing blacks to vote -- was ratified after all the rebellious states except Mississippi and Texas were readmitted to the Union.)
In 1964, three years before Loving, Congress enacted the Civil Rights Act that overthrew all of the "Jim Crow" laws; although many Democrats and some Republicans voted against it, the Act passed overwhelmingly: 70% in the House and 73% in the Senate. A year later, the Voting Rights Act was passed with even larger majorities in both houses.
Thus, by 1967, there was the overwhelming consensus in the United States that racial distinctions were inherently invidious; it was just a matter of following that principle to its logical conclusion: if racial classifications are inherently invidious, then in particular, racial restrictions on marriage cut against the fabric of America.
(An interesting point: I believe the same Court decision would have been inappropriate and premature in 1927, rather than 1967: there was no societal consensus about race forty years before Loving... we were still, as a nation, struggling to find a national voice on the issue. The courts rightly waited until consensus had been achieved by the normal, democratic organs of society before enunciating that such consensus meant contrary laws would be struck down. The Court, in the case of Loving, knew its place.)
But note the important point: this consensus was not created by the judges of the Warren Court: they only found a consensus that had been created long ago, over many decades, by debate, by the "terrible swift sword" of war... and most especially, by repeated voting of the whole people. And that is the correct order the Court should use: all of the objections every sane person has to the "reasoning" of Roe v. Wade, 410 U.S. 113 (1973), do not apply to Loving. The Court applied existing law and constitutional amendment to strike down a state statute whose fundamental premise, "distinctions between citizens solely because of their ancestry," was "odious to a free people whose institutions are founded upon the doctrine of equality."
But no such federal law or constitutional amendment exists in the case of SSM; nor is there any national consensus that distinctions drawn on sexual preference are as "invidious" or "odious" as those drawn by race. In fact, to the extent that consensus exists at all -- and it's a wide extent -- it is the exact opposite: based upon voting patterns, a national consensus clearly exists that marriage should be restricted to the traditional definition. (Remember, "consensus" is not the same as "unanimity.")
In state after state, in every region of the country, strong majorities (usually two-thirds or more) have rejected SSM and endorsed the traditional definition of marriage. Not even SSM proponents can deny this with a straight face.
So in order to argue that the precedent of Loving v. Virginia forces states to adopt SSM (or "gender-neutral marriage"), proponents must completely strip Loving of precisely the national consensus that produced it in the first place! Warren held that because of a national consensus that racial distinctions were odious and invidious, marriage could not be restricted by race. But now SSM proponents argue that despite a national consensus that sexual-preferences are acceptable, Loving must be extended to same-sex marriages.
Such an argument turns Loving on its head and upends logic, consistency, and the rule of law in the bargain. Thus it cannot prevail -- except in the topsy-turvey, Alice In Wonderland worldview of contemporary liberals, for whom paralogia is too familiar a bedfellow to cause any fear.
July 10, 2006
In Shocker, Mass Court Rules According to Law
Here is a shocking headline... and the sad part is that such a ruling should come as a shock:
Mass. Court Backs Gay Marriage on Ballot
The same court that made Massachusetts the first state to legalize gay marriage ruled Monday that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature.
The ruling was in a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to approve the ballot measure because the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.
In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision.
What is shocking is that so many simply presumed that the Supreme Judicial Court of Massachusetts, because it demonstrably supports same-sex marriage (SSM), would therefore rule that the state constitution bars citizens from changing the state constitution. What stuns is that this was, indeed, the very argument advanced by Democratic backers of SSM: that "gay marriage" is so urgent, that citizens of a state are barred even from attempting to change the constitution, if that would eliminate SSM.
Those of you who support SSM -- think about that. I know there are many who support SSM (or don't care about it) but who oppose imposing it by judicial fiat; Patterico fits that description. But what does it say about a position that it has never been instituted except by judicial fiat? Those of you who actively support SSM as an "equality" issue... aren't you at least made uncomfortable by the fact that your fellow activists argue in the same breath in favor of "equality of marriage" -- and also that citizens cannot even amend their own constitutions?
This is so extreme and radical a position in favor of SSM that it unanimously disgusted the very same court that imposed SSM by court decision!
This is not normal for a supposed liberty. The vast majority of those who support freedom of speech, for example, and who oppose an amendment against flag burning, do not in the same instant try to get the Supreme Court to prevent it from being submitted to the states for ratification. Rather, they lobby Congress to vote against it and -- if necessary -- will lobby citizens in the states to vote against it.
The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)
Let me introduce a term: tyranny creep. Tyranny creep is the tendency of people who strongly support something most people oppose to begin calling for more and more dictatorship to overcome the "fools and knaves" opposing their wonderful policy.
Recall Al Gore's mantra to "count every vote" -- while simultaneously trying to nullify as many military ballots as possible, and even more spectacularly, using the courts to try to disenfranchise all absentee voters in two entire counties in Florida: Martin and Seminole counties.
It's logically consistent to support an unpopular position but oppose its imposition by force... but it may not be rationally consistent in the real world, if finding other such fastidious supporters is as rare as finding Ted Kennedy sober. It should at least give pause to find oneself fighting shoulder to shoulder with those who would, in fact, force the Cause down our throats, with or without our consent -- and who then go even further to silence opposition and prevent even constitutional amendment, if that might threaten the great Cause. (Thomas Sowell's seminal book the Vision of the Anointed is required reading for any patriotic supporter of SSM.)
At some point, the patriot has to answer a question: by giving conservative "cover" to such anti-democratic forces, does he do more harm than the supposed good done by advocating the Cause in the first place?
It's a truism, as Larry Niven first noted, that "there is no cause so noble that it will not attract fuggheads." I would never suggest that we should abandon liberty because a few unuseful idiots use the term to miscall their bizarre tyrannies, when in fact honest brokers of that word far outnumber the dishonest. But when the "fuggheads" outnumber the noble supporters by 30, 40, 400 to 1, maybe it's time for Mr. "1" to rethink his association with the 400.
Is any cause so noble that it's worth defending, even if nearly everyone on its side is a fugghead? Or is it possible that the problem is the Cause itself, rather than just a few bad monkeys spoiling the whole barrel?
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?
June 26, 2006
Although it may seem at first as if the Supreme Court is going to substitute itself for the scientific method in deciding whether anthropogenic global climate change is actually real, it's nowhere near that dire; in fact, this case is a chance for the Court to strike a blow for sanity by clarifying what only it can clarify: whether the executive has a legal duty to solve problems as determined by community leaders -- or just legal jurisdictions and prohibitions set by the Constitution. (Massachusetts v. Environmental Protection Agency, 05-1120.)
Spurred by states in a pollution battle with the Bush administration, the court said it would decide whether the Environmental Protection Agency is required under the federal clean air law to treat carbon dioxide from automobiles as a pollutant harmful to health.
The decision could determine how the nation addresses global warming.
Evidently, what the states argue is that we should declare the natural exhalation from snakes, rats, monkeys, and human beings -- and even lawyers employed by the plaintiffs -- as a "pollutant" when it's inhaled by a car or a factory, and that the EPA must perforce regulate -- that is, ban -- any releases over a certain amount.
This would indeed be asking the Court to brush science aside and substitute decree. Can this actually be done? Let's not hold our breath.
The EPA said in a statement that the agency "is confident in its decision" not to regulate the chemical under the federal Clean Air Act and plans to argue its case vigorously before the high court.
Recently, Bush told reporters he views global warming as a serious problem and has "a plan to be able to deal with greenhouse gases" short of regulating their use. It includes developing new technologies for cleaner burning coal, using alternative motor fuels such as ethanol as substitutes for gasoline and expanding nuclear power to produce electricity. [All sensible policies even without taking global warming into account. -- the Mgt.]
Critics argue that carbon emissions have continued to increase - though the rate of increase has declined - and only regulation of carbon dioxide and other greenhouse gases will stem the amount going into the atmosphere.
President Bush has a workable plan: the only way to reduce the use of carbon-based fuel is to find an alternative that uses less carbon. (This is not a trick question.)
The states' plan, contrariwise, is to shake a fist and shout at every industry in the United States, confident this will cause emissions to disappear while the economy magically remains constant. By the way, which states in particular do you think might have been involved in this lawsuit?
- California (9%)
- Connecticut (10%)
- Illinois (11%)
- Maine (9%)
- Massachusetts (25%)
- New Jersey (7%)
- New Mexico (-1% * )
- New York (19%)
- Oregon (4%)
- Rhode Island (21%)
- Vermont (20%)
- Washington (7%)
(The number in parentheses is Kerry's margin of victory over Bush in each of these plaintiff-states. * New Mexico actually went for Bush by 1 point; but the governor of New Mexico is former Clinton Secretary of Energy Bill Richardson... and guess who made the decision for New Mexico to join the lawsuit?)
In addition, several cities joined up, including Baltimore, New York City and Washington D.C. (all Democrat, all the time), as well as America Samoa (huh?)
Besides the governmental bodies, other plaintiffs included the Union of Concerned Scientists (they of the "doomsday clock," which is always set closer to midnight whenever a Republican is elected), Greenpeace (who are in the business of sabotaging our military), and Friends of the Earth (say, I wonder where they stand on the political spectrum!)
A more motley looking crew I don't think we'll ever find. Every wild-eyed lefty in America would crawl on his hands and knees though boiling pitch to be a part of the lawsuit to force President Bush to ban carbon dioxide.
The states involved, which together account for more than a third of the car market, say the Clean Air Act makes clear carbon dioxide is a pollutant that should be regulated if it poses a danger to public health and welfare. They argue it does so by causing a warming of the earth.
Reckon they didn't get the memo about calling it "global climate change," not "global warming," so even when the weather is unseasonably cold they can still cite that as evidence.
I haven't reviewed the Act itself; but the EPA has a "Plain English Guide To The Clean Air Act." Under the heading "The Common Air Pollutants (Criteria Air Pollutants)," I find the following air pollutants listed:
- VOCs (volatile organic compounds), such as "benzene, toluene, methylene chloride and methyl chloroform"
- Nitrogen Dioxide
- Carbon Monoxide
- Particulate Matter (dust, smoke, soot)
- Sulfur Dioxide
Maybe it's just me, but I don't see carbon dioxide on that list -- and no, you cannot snip the first word off carbon monoxide and combine it with the second word of nitrogen dioxide. In fact, every pollutant on this list except ozone is a polluting additive not normally found in air, something that would be virtually undetectable in the air of A.D. 1000, except perhaps in special areas (such as around a lead mine or in the bubbling cauldrons of Yellowstone National Park).
To call this "air pollution" is to strain the definition to the breaking point. It's ludicrous. Maybe it should be regulated; I don't think so, but let's suppose it should be. Then get Congress to regulate it!
But more to the point, there is no general legal duty for the executive (or Congress) to solve problems. The Court cannot tell the president that he is obliged to force oil companies to drill for more oil, or that he must resolve the immigration question, or that he has to shift U.S. troops into Jordan in order to guard against a sneak attack from Syria.
Occasionally, the courts will order the executive to act; but that is generally only as a remedy for past misdeeds... such as Brown v. Board of Education, where the executive was ordered to desegregate the schools. The Constitution is silent about the exact level of carbon dioxide that is allowed to be in the earth's atmosphere.
If the Court held that states could sue to force the president to start regulating carbon dioxide, even in the absence of any legal mandate to do so -- and clearly Congress never imagined that what it called "air pollution" would be extended to include exhalation -- just because the plaintiff-states think that would be a better policy, then that would spell the end of our form of government: every state, city, and NGO would sue in federal court to force the White House or Congress to enact specific pieces of legislation that the plaintiffs prefer. That's what we have a Congress for, for heaven's sake: to make such decisions in a democratic manner.
Although it's a logical end-point for a Court that is increasingly narcissistic, I still have confidence that, even if four justices thought this case should be heard (a divided circus-court narrowly held for the administration), the full Court will come down resoundingly against the states in their arrogant lawsuit... and by more than 5-4, too. I'm guessing that both Justice Anthony Kennedy and Justice David Souter will rule for the president, and maybe even Justice John Paul Stevens (and of course Justices Alito, Scalia, Thomas, and Chief Justice Roberts). I am absolutely convinced this writ of cert is a dead cert.
So I look forward to the Court clarifying that no, neither the states nor Congress can simply dictate to the president how he will do his job. The executive is a co-equal branch of government... not Vermont's errand boy.
In Rare Move, Court Endorses Freedom of Speech
In a surprise ruling, the Supreme Court held that freedom of speech applies even in the state of Vermont -- home to Chairman Howard Dean, Sen. Pat Leahy (100%), Sen. "Jumpin" Jim Jeffords (90%), and Rep. Bernie Sanders (100%):
The Supreme Court ruled today that a Vermont law restricting campaign donations and expenditures was unconstitutional. The court said that the law's limits on how much a candidate could spend violated a landmark 30-year-old ruling equating such spending with free speech and that its limits on donations to a campaign were far too stringent.
This is a double-plus good ruling: not only did six of the justices agree that campaign expenditures were a form of speech (incluing Stephen Breyer, who wrote the controlling -- that is, minimalist -- opinion), but they also held that even the limit on donations in Vermont was ridiculously low:
The Vermont law set the lowest limits in the nation on donations, capping gifts at $200 for state House campaigns over a two-year election cycle; $300 for state Senate and $400 for statewide offices. In his controlling opinion, Justice Stephen Breyer noted that the court had allowed limits on donations in other states but said that the ones put forward by Vermont imposed burdens on the First Amendment that were "disproportionately severe"....
He said that the low limits on how much an individual could donate to a candidate made it especially difficult for challengers, thus giving an undue advantage to incumbents.
(No word on whether Vermont incrumbents Leahy, Jeffords, and Sanders supported the Full Employment for Vermont Legislative Incumbents law.)
The three dissenters were John Paul Stevens, Ruth Bader Ginsberg, and perennial disappointment David Souter, who seem to believe that any limitation is fine, so long as Democrats are the primary beneficiaries:
Justice Stevens said that he disagreed that money spent by a campaign was the equivalent of speech, the underpinning of the 1976 ruling. Justice Souter said that the Court should have deferred to the judgment of the people of Vermont on how to reduce corruption and its appearance.
"The findings made by the Vermont legislature on the pernicious effect of the nonstop pursuit of money are significant," he wrote.
In addition, Justices Scalia and Thomas opined in a separate opinion (there were actually six in toto) that even contributions themselves constitute protected speech, and that the doddering and senile opinion in Buckley v. Valeo, 424 U.S. 1 (1976), should be overturned altogether, throwing out the entire unsound edifice of campaign finance restrictions. Sadly, they have yet to persuade Chief Justice Roberts, Justice Alito, and whichever of the four Marxist Brothers is least insane.
Not much else for me to say, since I never did finish law school (or even start -- or even apply, for that matter). But I stand to salute what has become, alas, an increasingly rare display of common sense on the parts of our robed masters.
(Ross Kaminsky, over at Real Clear Politics blog, has more details and an excellent analysis not to be missed.)
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.
June 12, 2006
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
May 24, 2006
Stop the Party - Crack Those Books!
We neglected to comment on the May 12th decision by a goofy California state judge to overturn the rule in the public schools requiring students to pass an "exit exam" before they can receive their high-school diplomas. (It was the press of other issues, honest!)
High school seniors who flunk the controversial state exit exam may be able to graduate next month anyway, according to a judge's tentative ruling issued late Monday.
Setting the stage for heated debate in court today between supporters and opponents of the California High School Exit Exam, Alameda Superior Court Judge Robert Freedman said he is likely to rule that the test cannot take effect this year as scheduled....
The court's preliminary injunction against the state would allow students to graduate this year if they've met all requirements for graduation - other than passing the test of basic math and English skills. It would mark a huge setback for state officials, who are eager to implement the test they see as the cornerstone of California's school accountability system.
What's worse, the judge refused to stay his own ruling while an appeal was heard. He clearly hoped the wheels of law would grind so slowly that it would be impossible to require the class of 2006 to actually know what they had been taught.
The basic problem, according to Judge Freedman, is that the test is "discriminatory" -- because predictably, different groups will perform differently on the test. But this same argument can be made for any test in any class, any grade, any imaginable method of evaluating the progress of students: some students will perform well, others will not.
Any evaluation whatsoever is fundamentally based upon "discrimination": discriminating between those who have learnt the knowledge and those who have not. And sadly, so long as different racial subgroups have different, culture-based attitudes about schooling -- and so long as boys are different from girls -- those differences among students will tend to clump into racial and gender classifications.
To be perfectly blunt about it, black and Hispanic male students whose subculture is less oriented towards sedentary study and more towards aggressive, even violent interactions will not do as well on the test (as a group) as Asians, and Jews, whose subcultures are precisely the opposite on this issue... or even black and Hispanic female students, who perform markedly better at this level. The performance of white students will be somewhere in the middle. So far, at least, nobody has found a way to change this.
Thus, for any academic test, Asians and Jews will perform the best (again, as a group), whites and black and Hispanic girls in the middle, and black and Hispanic boys at the bottom. But often, teachers are appalled at the pattern they see... and they use grade inflation to make up for this disparity. Many teachers -- perhaps unconsciously, perhaps in response to school rules -- will "re-norm" black and Hispanic male students upwards, awarding them grades that they do not deserve by their individual performance.
Many of those unfairly re-normed students (and of course individual, poorly performing whites, Asians, and Jews as well) have gone all the way through 13 grades of kindergarten, primary, and secondary schools, received a high-school diploma -- yet have been unable to read, write, or compute at even a middle-school level.
The solution of the plaintiffs in this lawsuit is to keep doing that, but more and harder:
If the tentative ruling stands, "this will be a historic ruling for all children in California because Freedman is telling the state, 'You cannot deny a student a diploma if they have not received adequate classroom materials,' " said Arturo Gonzalez, a San Francisco attorney representing students who have failed the exit exam but passed all other graduation requirements.
"You just can't do that," he said. "Its unfair, and it's illegal."
One of the major purposes of the California exit exam is to serve as a last chance to smoke out those students who have managed to duck education for years... aided and abetted by soft-hearted, soft-headed parents, teachers, and school administrators. When these kids fail the exit exam and realize they won't be graduating until they learn the material, it puts huge pressure on these students to take remedial classes and actually bring themselves up to the standards.
That good benefit was lost when Judge Freedman removed the requirement; he became the chief "enabler" of the cultural rejection of learning. Fortunately, however, some of the adults in the California judiciary are less interested in enabling destructive attitudes that in making sure kids are actually, you know, educated. Today, the California State Supreme Court itself issued a preliminary stay on Judge Freedman's ruling... and they did so in plenty of time to make the requirement possible for this year (since the test has already been given).
The California Supreme Court on Wednesday reinstated the state high school exit exam as a graduation requirement for this year’s senior class, leaving 47,000 high school students who failed the test in danger of not graduating.
The high court ordered a state appeals court to hold hearings in the case, but with schools ready to hold commencement ceremonies as soon as this weekend, a resolution appeared unlikely before then....
This year's class was the first in which passing the test of 10th grade English and eighth grade math and algebra was required for graduation.
Five of the seven justices sounded very skeptical of Freedman's decision:
Still, the justices said they were not convinced that Freedman ruled correctly. "At this juncture this court is not persuaded that the relief granted by the trial court's preliminary injunction ... would be an appropriate remedy," five of the seven justices wrote.
The case itself was not decided; it still must work it way through the appellate courts, and only then will one side or the other appeal it to the Supreme Court. But this still is very encouraging; such a clear signal that the State Supreme Court is likely prepared to strike this decision down should make the appellate court less sanguine about upholding it.
Accountability and responsibility must be integral parts of education; because in the end, education is not about teachers teaching... it's about students learning.
Keep your fingers dry and your powder crossed....
April 3, 2006
Moussaoui Eligible for Death - Blog At 11:00
Well, probably later this afternoon, after some longish MSM pieces are up and I can digest the story. In the meanwhile, at least, unlike the army band of General Charles Cornwallis when he surrendered to George Washington at Yorktown, we needn't begin playing "the World Turned Upside-Down," as Friend Lee worried. Associated Press:
A federal jury found al-Qaida conspirator Zacarias Moussaoui eligible Monday to be executed, deciding that his lies to FBI agents led directly to at least one death in the terrorist attacks of Sept. 11, 2001.
According to Fox News, the next step is that the same jury, which just determined that Moussaoui's actions led to at least one death -- making "death a possible sentence in this case," as a prosecutor just said on the radio -- will sit through a second penalty phase... this time so they can actually decide whether he does, in fact, get the death penalty or life without parole.
But that's not the end: if the jury recommends the death penalty, then left-leaning Clinton Judge Leonie Brinkema will have the final say. If she decides to ignore the jury and keep poor Mr. Moussaoui alive, she can do so. (I believe that if the jury decides against the death penalty, she cannot impose it over their objections).
March 6, 2006
Don't Ask, Don't Yell
The Supreme Court today closed the door on a long-festering issue: they voted unanimously that the Solomon Amendment, which cuts off federal funding to any educational institution that bars military recuiters from its campus, is thoroughly constitutional. Or rather, they closed the legal door; there are many other doors through which the battle can continue to rage. (Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152)
The Supreme Court ruled unanimously Monday that colleges that accept federal money must allow military recruiters on campus, despite university objections to the Pentagon's "don't ask, don't tell" policy on gays.
Justices rejected a free-speech challenge from law schools and their professors who claimed they should not be forced to associate with military recruiters or promote their campus appearances.
Chief Justice John Roberts, writing for the court, said that the campus visits are an effective military recruiting tool.
"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," he wrote.
Lots of "Snoopy dances" on the Right following that one. It certainly seemed a no-brainer, since left-liberal Justices Ginsburg, Breyer, Stevens, and Souter joined with conservative Justices Thomas, Scalia, and Chief Justice Roberts, who wrote the only opinion, and the lone "swing voter," Anthony Kennedy (Justice Samuel Alito did not vote). But in fact, it was a reversal of a wretched decision by the Third Circus Court, which evidently bought the idea that the constitutional right of "freedom of speech" included the right to force other taxpayers to subsidize your speech.
Oh, by the way: I completely support allowing gays to serve openly in military service. Unlike the argument many have against women serving in combat positions, there is not even a weak claim of physical impairment... the argument against gays is exactly analogous to the argument against President Harry S. Truman integrating the troops in 1947: nobody claims that gay soldiers can't fight; the only objection is that some straight soldiers would be uncomfortable, and that this would impact morale.
In any event, "Don't Ask, Don't Tell" is a congressionally mandated policy, and the military has no choice: only Congress can change it. So it was always absurd to punish the military by barring recruiters.
The New York Times makes clear why the Third ruled one way and the Supreme Court overturned them:
The plaintiffs had persuaded the federal appeals court, in Philadelphia, that the Solomon Amendment imposed an "unconstitutional condition" on the universities' receipt of federal money by requiring them to surrender their First Amendment rights and become involuntary carriers of the government's message against gay men and lesbians in the military.
But Chief Justice Roberts said today that the plaintiffs' theory of the case, as well as the opinion by the United States Court of Appeals for the Third Circuit, was based on a fundamental misperception about what it was that the Solomon Amendment was imposing.
"As a general matter, the Solomon Amendment regulates conduct, not speech," the chief justice said. "It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."
Noting that the law schools remained free to disavow the military's policy, to denounce it or even to help students organize protests, Chief Justice Roberts said that "the Solomon Amendment neither limits what law schools may say nor requires them to say anything."
I never understood the Third's decision. Obviously, if the law requires a school to host military recruiters, that means that the presence of those recruiters says absolutely nothing about the school's position on Don't Ask, Don't Tell. I appreciate the fact that Chief Justice Roberts made exactly the same point today:
Citing a 1990 Supreme Court decision that upheld an equal-access requirement for student religious clubs in high schools, the chief justice continued, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so." He added, "Surely students have not lost that ability by the time they get to law school."
One other interesting point from our new chief justice: the actual finding in this case was merely that a law passed by Congress was constitutional. The Court did not decide that military recruiters belong on campus; Congress made that decision.
But this Court also unanimously held that Congress could, if it wished, simply pass a law requiring schools to allow military recruiters on campus even if the school didn't accept federal money.
The constitutional power of Congress to "raise and support armies" was another significant thread in the opinion. Chief Justice Roberts said that in exercising that power, Congress could have directly required universities to admit military recruiters, instead of taking the more indirect approach of making access a condition of federal funding. "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly," he said.
I would like to see such a law enacted. As it stands now, many of the elite, Ivy League universities have endowments so large that they could forgo all federal money in order to maintain the ban against military recruiters. In fact, I expect many of them, including Harvard, Yale, and MIT, will do just that.
The trustees of these universities may object. They might even use the loss of revenue as an excuse to oust the university administration... but I wouldn't hold my breath awaiting such firmness. The best we can hope for is that some conservatives will use the withdrawal of federal funds to run for the board of trustees.
But if we really want these schools to allow the military a fair shot at recruiting students, Congress will have to take it completely out of their hands by nakedly forcing them to admit the recruiters. I don't have high hopes for this approach either; but at least all it takes is a single vote, unlike sitting around and waiting to see whether universities care more about federal dollars or gay activists.
By the way, does the Solomon Amendment apply to public secondary schools as well? If so, I am really eager to see high schools across the country forced to restore ROTC programs on campus!
February 17, 2006
Not Every Clinton Judge Is an Embarassment
It's a truism that whenever some insane ruling (or likely ruling) rolls down the road, we nearly always discover that a Clinton crony sits at the heart of it.
But we would be unfair and imbalanced if we didn't point out when a Clinton judge -- confirmed while the Democrats still controlled the Senate, even -- makes a great decision. And Judge David G. Trager just got it right, very right, in a cause fraught with peril... literally, as a bad decision would have put us on a collision course with disaster in the war on jihadi terrorism.
Judge Tosses Lawsuit Alleging U.S. Deported Man to Syria for Torture
Friday, February 17, 2006
NEW YORK — A federal judge has tossed out a civil rights lawsuit filed by a Syrian-born Canadian man who claimed U.S. counterterrorism officials deported him so he could be tortured in Syria.
Maher Arar had sued the officials in 2004 in what was believed to be the first case challenging extraordinary rendition — the policy of transferring foreign terror suspects to third countries without court approval.
Arar is not an American citizen, nor is he a U.S. resident. He carries dual Syrian-Canadian citizenship and only passed through the United States en route from Tunisia back to Montréal. While in JFK, transitioning from one plane to another, the Immigration and Naturalization Service (INS), as it was known then, detained Arar when his name popped upon a terrorist watch list. He was taken and interrogated, then eventually deported to Syria -- where he claims he was tortured by the Syrians (who deny the allegation).
An "independent" investigator, law professor and political activist Stephen Toope, says the he believes Arar was tortured; but Toope, the president of the Trudeau Foundation, is a "human rights" activist whose specialty appears to be extreme rendition, which he vigorously opposes. So his own objectivity is certainly open to question.
Arar has become a huge cause celebre among liberals and Democrats -- on both sides of the 49th parallel, as the Arar case resulted in numerous investigations and fulminations in Canada, being seized upon as evidence of President Bush's perfidy by both the anti-American Liberal government of Paul Edgar Philippe Martin and the near-Socialist New Democratic Party under Alexa McDonough... despite the fact (or perhaps because of the fact) that Canadian officials were involved in the detention: it was the Royal Canadian Mounted Police who provided the American INS with the watch list that included Arar's name; and the Canadian Consulate admitted that they knew Arar was in custody in the United States, but did not know (they said) that he was to be deported to Jordan or Syria.
Arar's story -- invariably told from Arar's viewpoint with little or no attempt to get our side of it -- appeared in Time Canada (Google cache), Counterpunch, CBC News, the New York Times (reprint from a lefty website; you can visit the NYT and pay for the archived article, if you wish to compare them), and other favorite liberal and lefty sources.
But despite all that pressure, Judge Trager made a very sharp and (oddly) courageous ruling that since Arar was not any kind of a U.S. person, the law he was suing under did not apply to him:
U.S. District Judge David G. Trager rejected arguments that Arar was protected by the Torture Victim Prevention Act, which allows U.S. courts to assess damages for human rights abuses committed abroad.
Trager said that as a non-citizen, Arar couldn't demonstrate that he has a viable cause of action under that statute.
Citing "the national security and foreign policy considerations at stake," the judge said Arar had no grounds in a U.S. court to claim his constitutional right to due process was violated.
In other words, Judge Trager actually relied upon the law, rather than his gut feeling about what was "right" (or what some international tribunal says our law ought to be). The Torture Victim Prevention Act does not apply to foreigners living abroad; unlike Belgium, American courts do not claim to have jurisdiction over any "crime against humanity" committed by anybody, against anybody, anywhere in the world.
So he kicked it. And to hell with the liberal whiners who wanted Trager to use the claim to indict the Bush administration generally and the "rendition" policy (if it even exists) in particular... that is, to substitute the liberal foreign policy of Clinton for the conservative foreign policy of Bush at gavel-point.
To his great credit, Judge Trager refused to play that game. And I think if we're going to castigate judges who scamp the law in favor of their own preferences, we should salute those judges -- no matter who appointed them -- who do the opposite.
February 16, 2006
Extra! Judge Orders US to Lose War on Terrorism
And the "free press" fails to notice or care. (Hat tip to commenter MTF.)
A Clinton-appointed judge, Henry Kennedy (Harvard Law, Washington D.C. practice and judgeship), has abruptly ordered the Department of Justice to hand over a huge bunch of critical and highly classified documents to a "civil liberties" organization, the Electronic Privacy Information Center... a group so radical, even the Electronic Frontier Foundation is leery of them.
Records sought by the group include an audit of the program, a “checklist” guide used to determine whether an individual’s phone or e-mail messages could be monitored, documents showing how information gleaned through eavesdropping had been used, and other legal opinions about the program.
In addition to these documents, the judge ordered the DoJ to give EPIC "a document index and declaration stating its justification for withholding any documents within 30 days," just in case the "privacy" group wants to rummage around to see if there are any cool docs they missed asking for the first time.
Instant Update Department: CBS disagrees with NBC about whether the judge actually ordered the documents released:
CBS News legal analyst Andrew Cohen says that while this is a victory for the plaintiffs, it is by no means a major ruling that will instantly lift the lid of secrecy from the spying program.
"The judge didn't order the feds to suddenly release all sorts of classified or secret information. All the judge did was to tell the Justice Department that it has to speed up its response to a request for information about the National Security Agency program," said Cohen. "And the information that initially will be released will be very unspecific. The big battles are yet to come over how much of this stuff eventually is made public."
However, the MSNBC article quotes Judge Kennedy:
“Given the great public and media attention that the government’s warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary Committee, the public interest is particularly well served by the timely release of the requested documents,” he said.
Let 'em duke it out.
Two other groups joined in the lawsuit, the ACLU and the National Security Archive -- which, despite its official sounding name, is actually a radical-Left private group obsessed with opposing any American foreign policy that involves confronting evil. Thus, they deeply oppose the NSA al-Qaeda intercept program and equate it with cold-war "domestic" surveillance programs that they believe are already discredited. (The ACLU's interests and motivations I think we all know about already.) However, the lead counsel in the case before Judge Kennedy is David Sobel, who is one of the founders of EPIC.
EPIC itself appears to be a radical-libertarian organization much in the mold of the EFF, but much less willing to accept that anything at all should be secret. There is a certain breed of libertarian which I run into all the time: freedom of information becomes such an overwhelming, almost religious cause, that they completely lose all perspective and (for example) demand an end to copyright, full release of all national-security documents without exception or redaction, the release of all personal and private information about government officials -- all under the mantra "information wants to be free."
Then they will turn around and demand complete protection of any and all private information of any private person, again without exception, not even for criminal suspects served with search warrants... presumably on the theory that "some information wants to be withheld." Eventually, it dawns on one that what they really are is simply anti-government: they want to pull down any and all regulation... but they haven't the slightest interest in coming up with anything to replace it. (Even Thomas Jefferson wanted some form of central organization.)
In this case, of course, EPIC, the ACLU, and the National Security Archive completely dismiss (if they've even thought about it) the possibility that details of the NSA program might be secret for good reason; and there is no indication that Judge Kennedy considered that possibility, either -- how could it possibly be vital for national security to keep secret details of all that "domestic surveillance without a warrant?"
I can understand wacky, ultra-libertarian, "information freedom" folks being willing to publish anything without regard to consequences. But a federal judge? Even a Clinton appointee? I assume this will be swiftly overturned on appeal (District of Columbia circuit), because if it isn't, the effect will be catastrophic. The courts may as well order the release of all technical information on building nuclear warheads.
What is most telling is that neither MSNBC nor the Washington Post so much as addresses the possibility that some secrets are worth keeping. MSNBC doesn't even mention it, while the Post has the following deep examination of the conflict between liberty and security:
Given the highly classified nature of the program, the Bush administration is likely to withhold all information about it.
That's it; question resolved. Neither bothers interviewing anybody at the DoJ about whether it's a good idea to publish enough information to allow al-Qaeda to completely bypass our attempts to monitor them; remember, one of the documents the groups requested (that the judge ordered released) is "a 'checklist' guide used to determine whether an individual’s phone or e-mail messages could be monitored." Clearly, if al-Qaeda or other terrorist groups know the criteria by which we decide which communications to monitor, they can tailor their communications not to trigger the monitoring... is that really a reach?
This is completely mad. The purpose of this program is to intercept communications of a terrorist organization sworn to destroy us; Surely this argument must be faced even by those who oppose the program. They should say, "no, it won't damage national security, because..." and provide some sort of reason, no matter how half-baked. To ignore it completely is mystifying and overtly suspicious.
But if one doesn't accept the idea that national security is an important consideration at all, it follows that the non-existent national-security issue can't possibly trump the Public's Right to Know™; there's no reason even to mull the question. And that, alas, is the sorry state to which the Antique Media has sunk under the weight of so much left-liberal ballast.
(On the all-important diction watch, on the WaPo story, they do manage to refer to "warrantless surveillance;" but the body of the article fails to include the word "domestic." The headline does, but that's generally written by someone other than the reporter; hence we cannot award the Post full points. The MSNBC story fails to disappoint: they refer to "President Bush’s domestic eavesdropping program," and then quote Judge Kennedy calling it "warrantless surveillance," hitting both required moves for full credit.)
January 10, 2006
The New York Times Needs to Read Power Line
The New York Times today reports that the interrogation of Judge Samuel Alito today focused on a formerly obscure concurrance by a Supreme Court justice in 1952... in a case that has already been thoroughly analyzed, in far greater depth, by the tribunes at Power Line.
(Haven't we been down this road before? It's like déjà vu all over again!)
The case they refer to is Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952), and Paul Mirengoff at Power Line first discussed it back in late December, anent the NSA intercept program that has just been outed by anonymous "officials." Paul only laid out the basics of the particular concurrance by Justice Robert H. Jackson that is now, more than two weeks later, the "focus of [the] hearings" into Alito's nomination to the Supreme Court.
On New Year's Day, John Hinderaker took a whack at the Jackson formulation in a much longer piece.
The basics of the case -- and why lefties think it applies to President Bush and the NSA intercepts -- are quickly recounted in the Times piece:
The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning....
In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.
In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.
"Echoes in the justifications..." wait, what did the Court actually decide in the Youngstown case?
Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.
"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."
Ah, of course: seizing private property to prevent a strike. Yes, I can see how that's "broadly similar" to the National Security Agency intercepting phone calls from al-Qaeda to their agents in the United States. And I can definitely hear those "echoes in the justifications" offered by President Bush why he should be able to hold enemy combatants in military detention.
To its credit, the Times does admit that the "broadly similar" facts seem oddly dissimilar:
There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations.
Um, yeah. Also, Truman tried to seize the steel mills in order to prevent a strike that he thought might interfere with the war -- whereas the NSA intercepts are direct warmaking actions to gather enemy intelligence: as Hinderaker said earlier (more or less paraphrasing the president), "If al Qaeda is calling you, we want to know why."
Justice Jackson's concurring opinion set up a formulation for the strength of a president's power:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain....
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
(The Left claims, of course, that the Foreign Intelligence Surveillance Act (FISA) forbids any "wiretapping" without a warrant -- but see below -- and that therefore, the president's power is Type III: "incompatible with the expressed or implied will of Congress," thus "at its lowest ebb.")
"It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact," disingenuously muses the Times; for it is completely obvious why: because that concurring opinion is all that the Democrats have to throw against the commander in chief's obvious Article II power to fight wars. Therefore, they're going to keep waving it as a bloody shirt to urge on the masses.
Returning to Hinderaker's post on Justice Jackson's concurring opinion and its possible application to the NSA case, John begins his analysis so:
In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.
The reasons he cites are quite persuasive:
- It was a concurring opinion that no other justice joined.
- The decision in Youngstown was a no-brainer: "if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator," sayeth Brother John.
- The argument turned more on the president's charge to "take Care that the Laws be faithfully executed" than his powers as commander in chief.
- It isn't clear that Jackson's discussion and his three-scenario formulation were ever meant to apply to the president's war-fighting powers: "Jackson lays out his three categories before he specifically addresses any of the executive's Article II powers, then begins by talking about the President's exercise of 'the executive Power.'"
- The Court rejected the claim that Truman's powers as commander in chief allowed him to seize the steel mills on the grounds that that was a purely domestic action -- but the NSA intercepts are of foreign-originating calls and e-mails.
Even Justice Jackson himself appears to agree with Hinderaker on that last point. As John quotes from Jackson's opinion...
(Note: for reasons known only to themselves and perhaps God, the fine fellows at Power Line have taken to using three asterisks [ *** ] instead of the normal ellipsis [ ... ] to indicate words clipped out. They don't mean such passages are attended by three footnotes!)
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.
Finally, one last comment. The Times article concludes with a backhanded legal opinion on FISA that appears, facially, to be utterly false:
The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.
In fact, it says no such thing, as John pointed out in yet another Power Line post (I feel so inadequate):
UPDATE: If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f):
John then lists the four-part definition of "electronic surveillance," as used by FISA, no part of which appears to apply to the NSA intercepts, assuming we have been given correct information by the White House. The "electronic surveillance" that has been "acknowledged" by the Bush administration does not, thus, "require court approval" or warrant of any kind.
So the entire New York Times take on the NSA intercepts is wrong on its face, and needn't even reach the question of whether an act of Congress (such as FISA) can override the president's residual, plenary powers as defined in Article II of the Constitution.
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