Self-Defense and "The Reasonable Racist"

Florida just passed a law which would codify "the right [of a citizen] to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so, to prevent death or great bodily harm to himself or herself or another."

I'm very conflicted about this. On the one hand, it does seem to be somewhat reasonable. Someone firing a gun in self-defense from a criminal assault should not have to fear criminal prosecution. That's just common sense, and it should be codified in law.

On the other hand, I just can't read the bill and get Jody D. Armour's "reasonable racist" hypothesis out of my head ("Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes," 46 Stan. L. Rev. 781 (1994)). She tells the following hypothetical:

It is a stormy night in a combined residential and commercial neighborhood in a predominantly white upper-middle-class section of a major city. The time is 10:30 p.m. Although most of the fashionable shops and boutiques in the neighborhood have closed, the neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors; the first set opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours.

A middle-aged resident of the neighborhood enters the bank's lobby, inserts her bank card into the machine, and requests $200. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is black.

The trench coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it.

Panic-stricken at the image before her and conscious of the rhythmic clicking of the automatic teller counting out ten fresh clean twenty-dollar bills, the woman pulls a pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand - which now contains a billfold retrieved from his inside breast pocket - out in front of him while shouting at the woman not to shoot. Perceiving what she takes for a handgun thrust in her direction, together with the man's unintelligible loud shouts, the woman shoots and kills the black man.

In claiming self-defense, the woman may argue that the black victim's race is relevant to the reasonableness of her belief that she was about to be attacked. Her claim might be based on any of three distinct arguments. First, she could claim that it was reasonable to consider the victim's race in assessing the danger he posed because most people would do so. She might introduce studies or anecdotes demonstrating the frequency with which Americans make assumptions about an individual's character on the basis of race, and argue that she should not be punished for basing her response on the widely held belief that blacks are more prone than whites to be criminals. Second, she could claim that, independent of typical American beliefs, her consideration of the victim's race was reasonable because blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat. In framing this argument, she would show that quantifiable statistical discrepancies exist between the crime rates of blacks and nonblacks, and she would assert that she knew of, and reasonably relied on, these statistical probabilities when deciding to shoot.

Finally, if the woman had previously been violently assaulted by a black individual, she might claim that her overreaction to the victim's race was reasonable in light of her earlier traumatic experience. One recent case accorded legal weight to such "negrophobia" by holding that an ordinary person assaulted by an anonymous black individual might develop a pathological fear of all blacks sufficient to justify an award of disability benefits. Invoking the same psychological proposition, our defendant might claim that her negrophobia is relevant to the reasonableness of her reactions to the supposed assailant.

Incidents such as the "New York Subway Vigilante" case (People v. Goetz, 58 N.Y.2d 96) and the Rodney King verdict suggest that courts--and especially juries--would take such "reasonable racist" arguments very seriously. Even if only on the subconscious level, many people still identify with a deep-seated fear of blacks, especially young black men. Allowing for violent assaults based on the "reasonab[e] belie[f] it is necessary...to prevent death or great bodily harm" would give "reasonable racist" claims far more weight. One could certainly argue that the women in the hypothetical, if not acting reasonably, was not necessarily acting totally unreasonably either. It was a dark, stormy night, she was frightened, his billfold looked like a gun in the heat of the moment. However, I am very skeptical that a black defendant in a similar case would be granted the same courtesy. In criminal proceedings, black men, whether the victims (such as in the Rodney King or Goetz case) or the accused, are uniformly portrayed as "savages," "vultures," "larger than life," possessing "superhuman strength," or other such descriptions designed to emphasize their danger and threat. One of the officers in the Rodney King case, for example, testified that King was a "monster-like figure akin to a Tasmanian devil." These views are in congruence with deeply ingrained social stereotypes, and thus are extremely difficult to counteract at trial. The net effect is to ratify latent racism in society, and make it more likely that white-on-black crimes will go unpunished. Essentially, I believe that the women in this story would stand a very good chance of acquittal, but if the races were reversed, then the defendant would not. That type of racial disparity disturbs me greatly.

Cornyn Backpeddles

Senator Cornyn "clarifies" his earlier remarks connecting "judicial activism" to judicial violence. Andrew Sullivan hits it home:

"Good for him. Just ignore the blather about being taken out of context. He wasn't. He contributed to anti-judicial emotionalism; and he has retracted his inflammatory remarks."

Actually, reading Cornyn's latest remarks, I'm struck by how little he's budged. I don't think anybody actually believes Cornyn endorses attacks against the judiciary. The problem, as I saw it, is that his rhetoric is precisely that which stirs up the violence he's talking about. So when he says

"We should all be concerned that the judiciary is losing the respect that it needs to serve the American people well. We should all want judges to interpret the law fairly – not impose their own personal views on the nation. We should all want to fix our broken judicial confirmation process,"

I have to wonder if he really recognizes the problem at all.

When he says "our judiciary must not be politicized," of course, then I just die of an irony overdose.

The Pen is Mightier

At this point, the GOP can't decide whether it wants to "explain" or repudiate violent actions against judges. While it makes up its mind, however, a group of GOP senators have decided to do with the pen what might be somewhat unseemly (read: treasonous) if done with the sword.

Richard Shelby (R-AL, and someone who should know better), has introduced the Constitutional Restoration Act of 2005, which, among other things, prohibits courts from enforcing the constitution (tip: The Moderate Voice). Nothing like Orwellian bill titles. The summary of the bill is as follows:

Amends the Federal judicial code to prohibit the U.S. Supreme Court and the Federal district courts from exercising jurisdiction over any matter in which relief is sought against an entity of Federal, State, or local government or an officer or agent of such government concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.

Prohibits a court of the United States from relying upon any law, policy, or other action of a foreign state or international organization in interpreting and applying the Constitution, other than English constitutional and common law up to the time of adoption of the U.S. Constitution.

Provides that any Federal court decision relating to an issue removed from Federal jurisdiction by this Act is not binding precedent on State courts.

Provides that any Supreme Court justice or Federal court judge who exceeds the jurisdictional limitations of this Act shall be deemed to have committed an offense for which the justice or judge may be removed, and to have violated the standard of good behavior required of Article III judges by the Constitution.

So basically, the second paragraph forces judges only to look to US law, and the first section requires them to ignore the First Amendment of said US law. How I wish they'd make up their mind.

Co-sponsors of the bill are Sens. Brownback (R-KS), Burr (R-NC), Lott (R-MS), Burns (R-MT), and Craig (R-ID). Rep. Robert Aderholt (R-AL) has introduced identical legislation in the House, with 24 co-sponsors. Meanwhile, Kos reports that Senate Majority Leader Bill Frist (R-TN) is distancing himself from the loony claims of DeLay, Cornyn, et al, saying that "I believe we have a fair and independent judiciary today." It remains to be seen whether that was spoken in praise or as a lament, but Frist's reaction to the Shelby's obscene bill will speak volumes.

Krugman on the Liberal Academia

Now that I am a blogosphere resident expert on liberal biases in academia, I feel compelled to keep abreast of the latest developments.

Paul Krugman puts his thoughts down in today's New York Times. Orin Kerr responds, Mark Kleiman rejoins. Honestly, though, I think the best takedown of Krugman's arguments was done by Stephen Bainbridge (also here in blog post form) to a similar column by Jonathan Chait. But what do I know?

Cornyn on Judicial Violence

First, an apology. I meant to add a caveat about my last post, regarding Tom DeLay's alleged threat to the judiciary. From my reading of the quote, it sounded more as if DeLay was threatening retribution in the more biblical sense of the term, as in the judges will go to hell, rather than a physical threat. Still pretty deplorable, but not rising to the level of rhetoric we've been hearing about it. Upon rereading it, the quote is pretty ambiguous, I can see it being interpreted either way. Anyway, here is the context, in case y'all were wondering. "This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior."

Texas Senator John Cornyn (R), however, requires no such caveat. In a speech on the Senate floor, he said the following:

"It causes a lot of people, including me, great distress to see judges use the authority that they have been given to make raw political or ideological decisions. The Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people.

I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country...And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."

Now let's be clear. It is men and women like Cornyn who have been stirring up this sort of anti-republican (small "r"), quasi-revolutionary rhetoric. Cornyn tells more in this quote than he'd like to admit. It is precisely is disdain for checks and balances that ratifies the violent behavior he purports to condemn (or in this case, "explain"). Dozens of Texas militiamen hear his hyperbolic rhetoric about how the republic is collapsing and stand ready to take arms in assault of the judiciary. Of course he doesn't explicitly endorse it. I'm sure he doesn't even privately agree. But his rhetoric acts as a powerful form of encouragement, and his continuance of it even after death threats and bounties on the judge in the Schiavo case, is simply deplorable.

The Nashua Advocate (which appears to be online-only, I can't tell how legitimate it is), calls for Cornyn's resignation. Personally, I think Cornyn's political career should have permanently ended after his role in the Tulia, Texas travesty. For those of you who don't know about that, a rogue cop in Tulia arrested almost half the town's black population on trumped up drug charges. Despite virtually no evidence (the cop had no audio or video evidence, took notes on his arms and legs, and repeatedly misidentified defendants), they were nearly all convicted, with sentences of up to 99 years in jail. Cornyn, then the Attorney General of Texas, gave the office Texas' "lawman of the year" award. After a year in prison, virtually all of the defendants were eventually exonerated. But in Texas, incarcerating innocent black people is grounds for a promotion, not punishment.

Daily Kos has a roundup of links, including The Left Coaster, America Blog, Atrios, and US Representative John Conyers (D-MI).

Other folks weighing in include Talking Points Memo, The Moderate Voice, Kevin Drum, and Brad Plumer.

Voice of Reason

Of all the people...Dick Cheney has been a sober voice in the Schiavo fallout, repudiating Tom DeLay's alleged threat to judges that they will "answer for their behavior" by allowing her to die. The specific quote by Cheney:

"I don't think that's appropriate. I may disagree with decisions made by judges in any one particular case. But I don't think there would be much support for the proposition that because a judge hands down a decision we don't like, that somehow we ought to go out — there's a reason why judges get lifetime appointments."

Maybe support for DeLay in Republican circles is shallower than once thought?

Oh, and Cheney once again denied he had any aspirations to run for president, saying "I'm not a candidate, don't plan to be a candidate. If nominated, I will not run. If elected, I will not serve. Is that the Shermanesque statement? I said on television someplace the other day, not only no, but hell no."

Too bad. It's looking more and more like Cheney is a voice of reason in the modern Republican party (even Europeans concede: he's evil but smart!.

Thanks to The Moderate Voice for the heads-up.

The "D" stands for "Dictator"

The Houston Chronicle rips into Tom DeLay (who is based in the Houston area), exposing him as the corrupt, power-hungry madman he really is. Here's how it starts:

"Although Tom DeLay portrays a believable Third World dictator, it is time that he stopped trying to transform the United States into his own ideological fiefdom.

And it is time for him to stop sputtering ill-tempered threats, not only at the judiciary but also at the U.S. Constitution, which he repeatedly has sworn an oath to uphold."

Looks like the voters of the 22nd district are inclined to agree too.

Conservatives are circling the wagons around DeLay, which, longterm, I think will hurt them more than it helps them. Bull Moose will be thrilled, The New Republic depressed. For me, anything is a victory as long as we escape from the Grand Rove Party.

Pope John Paul II

Pope John Paul II has passed away. Though I am not Catholic, am not Christian, and have had some significant quibbles with some of his acts as Pope, I have rarely seen a man who has done so much good in his tenure here on earth. God rest his soul.

The Washington Monthly and Slate opine on who the next Pope will be.

Where to, Professor Zywicki?

Todd Zywicki of the VC puts together a long post on Academic Diversity, kindly linking to my previous post in the process. I just want to give a few reflections on his latest piece, the vast bulk of which I agree with.

The only true quibble I have is Prof. Zywicki's protest of the "ethnic studies" type courses. As he puts it:

While there are many good professors who create an open and balanced forum for a true exchange of ideas, there are many situations where this plainly is not the case. Most obviously, the entire point of many courses today is to present a particular viewpoint, not to create a balanced discussion, such as Women's Studies, African-American Studies, and GLBT Studies (for instance, when Dartmouth added a GLBT Studies program a few years ago, its first course was taught by a local activist, rather than a properly-qualified professor)

I obviously wouldn't defend having a class taught by a random activist pulled from the street. I do, however, see the value in those sorts of classes (Women's studies, GLBT studies, Jewish studies, et al). The primary objection to these sorts of classes is that they are not "neutral," that is, while a generic philosophy class teaches precepts common to all mankind (or at least, makes the effort to), ethnic studies courses are explicitly within the perspective of a single group. Conservatives tend to object to this from two angles: first, that it is needlessly divisive and leads to ethnic strife (by accentuating differences rather than bringing people together as one) and second, that it is unequal, since there isn't a "Men's Studies," or "Christian History" class. Advocates of Ethnic Studies classes have a single response that addresses both: that "generic" classes aren't neutral but actually coming from the perspective of the dominant group (in America, White Christian Males). Ethnic studies classes thus are no more perspectivized than any other class, it just is explicit about where it is coming from. The classes aren't "unequal" because every other class IS taught from the WCM perspective; it's just that White Christian Males have spoken alone for so long that they mistake the sound of their own voice for silence. Ethnic Studies classes thus give equal time to voices and perspectives that are marginalized in the dominant discourse that every person hears.

This isn't to say that Zywicki doesn't have a valid argument here. At some point, there has to be a cross-over, where so many persons are articulating the "marginalized" views that it ceases to be marginal anymore. The question is, have we reached that point? I'd venture no, because a) these views, despite their prevalence in academia, still have yet to gain much penetration into mainstream political discourse and b) these views are virtually non-existent in secondary school education, so incoming college students still have had far more exposure to the dominant views than to marginal ones. In this respect, having Ethnic Studies classes aids the quest (indeed, one might say is a pre-requisite) for an educational experience which "exposes students to a variety of ideas and perspectives, and through that develops critical thinking skills and an understanding of different ways of seeing the world which is necessary for living in a free and democratic society." However, as Zywicki and his allies will surely rejoin, diversity cuts both ways, and it is as important to expose students to conservative views as it is to liberal ones. I agree whole-heartedly, and while I think that Ethnic Studies classes should be preserved, I'd submit it should be part of a broader educational experience that presents conservative views as well as liberal ones.

Now that we've gotten past that little detour, where to? In other words, how to we get to that lovely panacea of diversity we lust so for so much? In my previous posts on the topic, I've argued that there are other explanations beyond bias that help explain the underrepresentation of conservatives in academia. The first of these is self-selection; conservatives may be less prone to the desire of academic life in the first place. For example, they might prefer jobs which offer more financial rewards, or ones that have more practical opportunities for influence (such as at Think Tanks or in politics, for example). Since that problem is on the end of the conservatives, I'll leave it up to them to fix it. The second potential bar I saw was the emphasis by universities on "novel" scholarship, which I argued in the last post was detrimental to conservatives who, by definition, are more likely to believe and be arguing for something that has already been said. Since this is an institutional problem, it seems, to me, to be ripe for resolution (and all you conservatives out there note: the thought-process I used to come to this idea came directly out of my exposure and enjoyment of critical theory and post-modernism. Just goes to show you that it is a tool that can be used by all ends of the political spectrum).

Professor Zywicki and I have been exchanging emails, and trading some ideas on how this institutional flaw can be rectified. This was the solution I came up with:

Perhaps an alternative would be recasting the norm about what "acceptable" (esp. for tenure review) scholarship is. If academia was changed to be more debate oriented, with the expectation that professors would not just construct arguments but also actively engage in debate with their philosophical opponents, that could help conservatives immensely by astronomically increasing the worth of their at-present less valuable defenses of prior claims, and by giving an alternative path to academic success beyond just making new claims and blissfully ignoring the scathing criticism coming from the other side of the political divide.

By making participation in Symposia and paneled debates either an independent requirement or a partial substitution for novel scholarship in the tenure process, we can give conservative scholars a leg up by end-running the institutional barrier to success posed by novel scholarship requirements. As an ex-high school debater who seriously believes in the value of discourse and argumentation as an integral part of the intellectual process, this holds a lot of appeal for me personally.

PLO Judgment Affirmed

Way back in the early days of the blog, I wrote a brief post on a $116 million judgment a Rhode Island district court slapped on the PLO for violating the Anti-Terrorism Act, which authorizes any "national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs" to sue in US courts and collect damages.

Via How Appealing, I find today that the 1st Circuit Court of Appeals has affirmed the judgment over "sovereign immunity" and "political question" protests by the Palestinean Authority.

Schiavo Dies

Terri Schiavo finally passed away this morning, in her Florida hospice. May God rest her soul.

The Family Research Council offers its condolences and uses this opportunity to rally the troops against the "culture of death" which is "still very much alive in our society." I just hope they live up to their word.

Novelty and the Liberal Academia

Much hay has been made over the purported liberal slant of academia. A study by GMU Professor Robert Lichtler concludes that:

By their own description, 72 percent of those teaching at American universities and colleges are liberal and 15 percent are conservative, says the study being published this week. The imbalance is almost as striking in partisan terms, with 50 percent of the faculty members surveyed identifying themselves as Democrats and 11 percent as Republicans.

The disparity is even more pronounced at the most elite schools, where, according to the study, 87 percent of faculty are liberal and 13 percent are conservative.
[...]
The researchers say that liberals, men and non-regular churchgoers are more likely to be teaching at top schools, while conservatives, women and more religious faculty are more likely to be relegated to lower-tier colleges and universities.

Top-tier schools, roughly a third of the total, are defined as highly ranked liberal arts colleges and research universities that grant PhDs.

The most liberal faculties are those devoted to the humanities (81 percent) and social sciences (75 percent), according to the study. But liberals outnumbered conservatives even among engineering faculty (51 percent to 19 percent) and business faculty (49 percent to 39 percent).

The most left-leaning departments are English literature, philosophy, political science and religious studies, where at least 80 percent of the faculty say they are liberal and no more than 5 percent call themselves conservative, the study says.

The Volokh Conspiracy has done a lot of thinking on this topic, most recently here and earlier here, which prompted my own musings as well. Kevin Drum, by contrast, mocks conservative commentators for whom the absence of women in academia is a clear indicator of inherent difference, while screaming the exact opposite when it comes to their own underrepresentation in the nation's universities.

In my first foray into this loaded topic, I agreed that the statistics showed a pretty clear liberal skew, but argued that more information was needed in order to determine whether there was bias at work, or whether there was, to some degree, self-selection. I claimed that, all else being equal, it made more sense to ascribe underrepresentation amongst a racial or gender group to bias than it did for a political group, since the latter has far more "essential" characteristics to it that might lead it away from academia than the former, whose "essential characteristics" are often merely stereotypes or products of past discrimination and lack of opportunity. I then said that in order to prove discrimination against conservative persons, we'd have to find "significant numbers of Republicans who wish to enter Academia but either a) face institutional obstacles to doing so (such as biased administrators) or b) feel academia is a "hostile environment" to persons with their views." In my opinion, the jury is still out on both of those questions.

However, there is another factor that may act as a barrier to conservatives in academia: innovation and novelty. The basic philosophy behind conservatism is preservation of the past. Generally, their policy preferences involve either preserving the status quo, or reverting society to the near (or not so near) past. Either way, the point is, their advocacy has already happened. And having already happened, it has almost definitely already been analyzed, explained, and justified, at least to some degree. Liberals, by contrast, tend to look toward change. They want to see a shift in the status quo, the creation of something new. And in looking for the new, liberals are more likely to be, well, novel. This is not to say that conservatives have no ground for original argumentation. They can still make responses and refutations to proposed liberal changes, or advocate new procedures or warrants for old claims. However, this is far narrower footing than what is available to the left. For example, a talented conservative professor might write a law review article demolishing Catherine MacKinnon's theories on sex discrimination and anti-subordination theory. That's all well and good, except that as Eugene Volokh notes in his book Academic Legal Writing, an article framed as a response to another piece generally limits ones audience to those who have read the original, a far smaller pool than those who might be interested in the topic as a whole.

This also helps explain why conservative professors, when they get a job at all, are stacked at the bottom of the professorial totem-pole. Novel arguments with broad appeal get published in more popular journals, get more attention, and look better on resumes. Liberals have more opportunities to do this than conservatives, because they are more likely to be writing on topics which have undergone less prior explication and analysis. Sure, occasionally you get a wunderkind like Richard Posner who says something truly revolutionary in support of conservative principles, but such persons are few and far between. Universities know this, and thus, consciously or not, will proceed with caution when evaluating even talented conservative scholars. Meanwhile, with liberals, there is always the chance that your university will be the one boasting the founder of the Critical Post-Colonialist Womyn and Hermeneutics Movement, or whatever, giving your school much attention and a reputation as "path-breaking" or "cutting edge." Say what you will about its merits, but the CPCWH movement certainly sounds more distinctive and will probably get more notice than the fifty-second defense of and expansion the theories of Sir Edmund Burke--no matter how excellent (or even unique) the work might be.

In some respects, one might claim that this focus by universities (unique scholarship as opposed to solid argumentation) is a bias in of itself. Certainly the critical theorist in me would challenge whether or not that particular pattern of hierarchy is natural or inevitable, or reflects the cultural and institutional biases of prevailingly liberal colleges, who wish to preserve their liberal status quo by creating standards which reify their dominance (I shouldn't mock post-modernists like I did above, indeed, if there was a CPCWH movement, I'm the type who would eat it all up, most likely). That's a whole other debate by itself, and one that, as of now, I'm not really ready to opine on. However, leaving that aside for now, it seems that the particular focus of colleges on innovation and novelty itself acts as a structural bar to increased conservative participation in the academia, wholly independent of the particular biases of its current practitioners.

UPDATE: Welcome Volokh-ers!. Hope you enjoyed the post, and check out my latest one on the subject here (reflecting on the post that brought you here).

Grand Rove Party

A great, if wholly depressing, column on the architect of the current GOP majority, Karl Rove (thanks to Andrew Sullivan, who's been surprisingly spry in his "retirement"). It notes that Rove has positioned the GOP so it can lose the battles while winning the war. For example, on Social Security, it looks like Private Accounts are going down in flames. Good news for Democrats? Well, let's see: Democrats get to go into next election saying...they preserved the status quo. Lovely. Terri Schiavo? Same thing, and I expect an outburst of support for the keep-her-alive side when she finally dies. Two years from now, most Americans will forget both issues. The partisans, however, will not forget, and the far right is far more invested in both Social Security and Ms. Schiavo than is the far left.

The thing about Rove is that he really doesn't care about "traditional" conservative values. He's willing to use them as cover fire to achieve other ends (Social Security taking the hits while an atrocious bankruptcy bill passes unscathed), or utterly suppress them so they don't fracture his precious coalition (Immigration "reform" a la Tom Tancredo). As the article notes:

Here in Blue America, Rove is typically caricatured as an ideologue, a hard-right-winger of the Cheney-Ashcroft genre. But as those who've closely followed his career will tell you, he is in fact a pragmatist, an apostle of patronage with a keen sense of factional politics and the spoils system.

Politics for Rove isn't about principles. It is about winning, and dispensing rewards to favored constituencies in the process. Unfortunately, as the GOP drifts further and further away from anything remotely resembling a principle, they become harder and harder to check. The virtues of small government and the protest against the patronage system--one of the few noble aspirations of the Gingrich revolution, have been utterly abandoned by Tom DeLay, who has emerged as the elected incarnation of what Rove does behind the scenes. As the DeLay congress continues to undercut procedural constraints, and Rove and his pragmatist disciples strip away ideological constraints, there is no telling where the GOP will go. Daniel Drezner's noticed, as has die-hard conservative Bill Quick (though obviously he wants the GOP to go in a different direction than I do). On the left end of things (relatively speaking), The New Republic nobly asks DeLay to quit it for the good of the country--while admitting that his continued presence in the House is a walking campaign ad for anti-corruption Democrats. Bull Moose slightly less nobly hopes that the GOP continues to back DeLay, et al, on the grounds that overreach will eventually kick the Republicans out of power.

Power unchecked by scruples. That is the future (and arguably present) of the Republican Party.

I Got a Job!

I got a Job! I got a Job! Cool things deserve repetition (and capital letters). So, starting this summer, I'll be working in the law library at Williams & Connelly. Very exciting.

That Harvard Law Chair is just a hop, skip, and jump away.

Back to the Dead

I earlier linked to TNR's Iraq'd blog's description of the Sunni Persecution Strategy (see here as well). Essentially, it goes like this: Sunni leaders who wish to prolong the insurgency "gather recruits, material, and political support for the insurgency by aggravating the sense among Sunnis that they have no future in the U.S.-sponsored political process."

After the great success that was the Iraqi election, we though this sort of grievance had subsided. Well, it's baaaackkk, and with a vengeance. More ominously, however, this time the bone the Sunnis have to pick is with the Kurds. The Boston Globe has the scoop:

"The Americans aren't the problem; we're living under an occupation of Kurds and Shi'ites," Sattar Abdulhalik Adburahman, a Sunni leader from the northern city of Kirkuk, told a gathering of tribal leaders last week, to deafening applause. "It's time to fight back." ...

"The Kurds are asking for Kirkuk. Later on they will start asking for Baghdad," said Sheik Abu D'ham, a Sunni tribal leader from Kirkuk who fears assassination if his full name is published. "It was Saddam Hussein who gave the Kurds too much, more than they deserved."

Sooner rather than later, he said, the city's Arabs would rise up. "The last remedy is burning," he said. "There will be fighting."

Obviously, we shouldn't jump to conclusions too quickly. As Iraq'd notes, we don't have a full cross-section of Sunni community opinion, and the rejection of sectarian violence by the Sunni Association of Muslim Scholars also is a positive note. Still..."deafening" applause for a speaker who advocates an uprising against the Kurds, and who claims Saddam Hussein was too good for them, does not bode well (note: Saddam killed 182,000 innocent Kurds in the Anfal Genocide from 1986-1989. Deterring future leaders from advocating genocide, by showing the international community will not consent to it, was one of my primary justifications for the Iraq war). Leaders like this need to be undermined, and fast, if Iraq has any chance for a continued, unified, and (relatively) blood-free existence.

This Is Why Trials are a Good Thing

Liberals get awfully nervous about military tribunals. For whatever reason, the idea of unrestrained authority, lack of meaningful checks, little due process, no civilian oversight, and President Bush as the ultimate determiner of justice doesn't sit well with us. Why on earth could that be?

Well, today's Washington Post offers a clue. Murnat Kurnaz, a German Muslim of
Turkish descent, was detained by the government for two years after 9/11 after a military tribunal determined there was "some evidence" that he was an al-Qaeda member. That would be nice, except that recently declassified evidence showed that the overwhelming weight of military opinion was that he had no ties to terrorism whatsoever. In all the files relating to Kurnaz's case, precisely one document, a brief unsigned memo by an unknown military official, argued he was a terrorist. As for the rest,

"in nearly 100 pages of documents, now declassified by the government, U.S. military investigators and German law enforcement authorities said they had no such evidence. The Command Intelligence Task Force, the investigative arm of the U.S. Southern Command, which oversees the Guantanamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling through Pakistan in October 2001.

"CITF has no definite link/evidence of detainee having an association with Al Qaida or making any specific threat against the U.S.," one document says. 'CITF is not aware of evidence that Kurnaz was or is a member of Al Qaeda.'

Another newly declassified document reports that the 'Germans confirmed this detainee has no connection to an al-Qaida cell in Germany.'"

Reaction by the Bush administration to what US District Court Judge Joyce Hens Green called "one of the most troubling military abuses of due process among the many cases of Guantanamo detainees that she has reviewed" was swift.

"Justice Department lawyers told [Kurnaz's lawyer] last week that the information may have been improperly declassified and should be treated in the foreseeable future as classified."

Amazing. The Bush administration detains someone even when the overwhelming body of evidence and analysis says he was wrongfully arrested. Then, when they're caught, their response is to try and hide their mistake by reclassifying the evidence that proves their malfeasance . Simply outrageous.

That, my conservative friends, is why military tribunals cannot be used to fight the war on terror. As applied, they are illegal under American law and international law. The disrespect for constitutional guarantees and the rule of law is simply astounding. Yet somehow, not surprising.

Pledge Dispute in the 4th Circuit

How Appealing links to a report that the 4th Circuit is hearing an establishment clause challenge to the Pledge of Allegiance. Interestingly, the challenge is to the entire pledge, not just the "Under God" clause, and it is being made by a Mennonite Christian, not an atheist as in the Newdow case. The gist of the argument is that the Pledge creates a "civic religion" (buttressed by the intermingling of religious and patriotic messages in the text), which violates the first amendment. Furthermore, as applied in the district, the pledge coerces the students by, among other things, rewarding those who say it with coupons and other perks (which discriminates against conscentious objectors by virtue of omission).

To me, the district court's opinion seemed to give the pledge an awfully leinant standard of review. I do think the "under God" clause of the pledge is unconstitutional--although not the whole pledge. I think that the system of "rewards" tied to reciting the pledge is problematic as well. Still, the odds that the most conservative appeals court in the land (the 4th) will follow in the steps of the most liberal (the 9th) seems unlikely.

Culture of Death

Wall Street Journal Columnist Peggy Noonan caused quite a stir on the blogosphere when she alleged that persons who wanted to remove Schiavo's feeding tube were promoting a "Culture of Death" (helpfully linked to, summed up, and taken down by The Moderate Voice). Persons of good will and moral values can disagree over the right choices for Terri's plight (see, for example, this guest editorial by William Stothers, and Dahilia Lithwick for Slate). But, as TMV says, to allege that all those who wish to see her die with dignity wish to construct a "Culture of Death" is grossly demeaning and a hideously inaccurate ad hominem.

If Ms. Noonan wishes to see a real "culture of death," perhaps she might take a look at our inner cities. A nine year old boy is currently in a coma after being shot while playing on the sidewalk in Northwest D.C.. Easy access to firearms, mixed with inadequate policing and non-existent economic opportunities create an environment where criminal activity flourishes. Young men turn to crime at epidemic levels, not because they are inherently prone to illicit activity, but because there is often literally no other choice. Social isolation is a severe barrier to economic advancement, and unstable foundations make corporations reluctant to invest. This creates a feedback loop of poverty, desperation, and despair. And even the innocents, those who have taken "personal responsibility," or worse, never grew old enough to get the chance to do it, still are victimized. Oh, and I'd be very surprised if this boy's family could afford to pay for his medical care without some form of the government assistance "pro-life" legislators want to cut. An outcry over this would strike a greater blow to the "culture of death" in our society than 1,000 Terri Schiavo marches ever could. And yet, I'm waiting to hear a word from the "pro-life" crowd.

Waiting, waiting, waiting...

The Real Conservative Jew

Poor David Bernstein. He keeps forgetting that even amongst "Conservative Jews" he's still likely to be the only actual Conservative. For better or for worse, Jewish law places a heavy emphasis on care for the poor and underprivileged, and is not the slightest bit statephobic--part of which makes the religion so overwhelmingly liberal. The grogger to Hilary Clinton was a nice riposte (though I have to ask again, why the Conservative anathema to a relatively hawkish, centrist Senator?). But alas, you are still wanderers in an unholy land (or from my perspective, deniers of the True Path to political enlightment).

Hope everyone had a happy Purim, though if you did you're probably too drunk to read this post. Back to Carleton on the 27th (can't hardly wait)!

Death's Bad Rap

Andrew Sullivan's Quote of the Day consists of the following statement by the Jesuit Theologian Rev. John J. Paris:

"Here's the question I ask of these right-to-lifers, including Vatican bishops: as we enter into Holy Week and we proclaim that death is not triumphant and that with the power of resurrection and the glory of Easter we have the triumph of Christ over death, what are they talking about by presenting death as an unmitigated evil? It doesn’t fit Christian context. Richard McCormick, who was the great Catholic moral theologian of the last 25 years, wrote a brilliant article in the Journal of the American Medical Association in 1974 called "To Save or Let Die." He said there are two great heresies in our age (and heresy is a strong word in theology — these are false doctrines). One is that life is an absolute good and the other is that death is an absolute evil. We believe that life was created and is a good, but a limited good. Therefore the obligation to sustain it is a limited one. The parameters that mark off those limits are your capacities to function as a human."

Now, this really doesn't impact to me in any way, because I'm not Christian. But it does give me at least some pause in terms of my theological debates with Christians. I often ask them explain the clear-cut murdering of innocents God engages in throughout the bible (the "two year old first born son" in the 10th plague, the Book of Job). One of the common responses (though not the only) is that death isn't the ultimate evil--all that is happening is these innocents are returning to God. However, then when we get back down to the modern world, abortion and euthanasia become the ultimate of moral evils. How do those two issues co-exist? Sure, one could argue that the actions in the bible are God's and thus beyond reproach, but I think that dodges the question--the "good" caused by death (returning to God) is caused regardless of whether the source is God, or an illness, or a freak accident, or the hand of mankind. Perversely, it seems this logic could be used to justify murder on a grand-scale--which is worse: letting humans continue to live in the stench of sin, or returning them to their merciful and just God?

As a Jew, I don't believe in the primacy of the immortal kingdom over the one established here on earth. So I can happily believe death is the great moral evil, guilt-free. But for those who do, this strikes me as a fundamental tension in the moral doctrine of Christianity. Millions of persons have died on Christian crusades, at least in part motivated because they were doing God's will and that their mortal life was a mere crucible for the world-to-come. It seems difficult to pick and choose where death is okay, and where it isn't.

This isn't to indict Rev. Paris. I think his point--that life, in the moral sense, means a functioning life, and when life is not functioning it can be killed. Nor do I think he means this in a callous sense. If you believe in reincarnation, it gives what must be a tortured soul "take two," another chance at life. If you don't believe in that, but still believe in an afterlife, it allows a soul the immediate chance to experience the life-as-afterlife, something an incapacitated, non-functioning human being cannot. And if you don't believe in any form of religion, surely the prospect of an entirely non-conscious existence, divorced from the capability of rational thought, is a scary prospect. There is a reason why polls overwhelmingly say, if in the same situation as Schiavo, the vast majority of American's would not want to be artificially kept alive. Regardless of whether they want to meet their maker, or just be released from a life not worth living, they same to agree that Schiavo's situation isn't really a life at all.

Obstruction of Justice

I joined the Coalition for Darfur a little while ago, but never got a chance to do anything about it. The CfD is a multipartisan blog dedicated to exposing the horrific atrocities in the Darfur region and provoking the international community to action.

Today, the CfD links to a report of a USAID volunteer shot in the face by unknown assailants, in broad daylight, while traveling in a clearly marked humanitarian convoy. Sudan expert Eric Reeves (who spoke at Carleton, see my thoughts on his incredible lecture here) believes that this is part of a strategy by Khartoum to obstruct humanitarian aid, thus starving the Darfur refugees to death in a slow, but equally lethal, genocide. As CfD reports:

"If such a plan is truly in the works, it will have dire consequences for the people of Darfur. Last year, Jan Egeland, the UN Undersecretary General for Humanitarian Affairs, warned that as many as 100,000 people could die in Darfur every month if those providing humanitarian assistance were forced to withdraw due to insecurity."

When even the notoriously "even-handed" UN starts mentioning death tolls of 100,000 people per month, we should admit there is a crisis.

Meanwhile, yesterday's Washington Post contained a...interesting...interview with Sudanese Vice President (and architect of the cease-fire that ended the 30 year civil war between the northern and southern regions of Sudan--that's a separate conflict) Ali Uthman Muhammad Taha. He essentially denied there was any genocide taking place, and said that the international community needed to put more pressure on the rebels to lay down their arms. As CfD notes, the AU has estimated 90% of the cease-fire violations in the Darfur region have been instigated by the Janjaweed militias. But sure, let's blame the victim. Meanwhile, Joseph Goebbels is demanding that resistance fighters in Warsaw lay down their weapons before there is any talk of dismantling the concentration camps.

CNN Weighs In on DeLay

CNN runs a piece on Tom DeLay's growing political radioactivity. This lends some credance to Etc.'s claim that DeLay's grandstanding on the Schiavo issue will backfire by bringing attention to his plethora of ethical shortcomings. And if you feel like indulging in more GOP scandals, check out this David Brooks editorial in the New York Times.

As always, be sure to check out the uncomparable Daily DeLay for the latest on this walking embarassment to our nation.

Killing Them Softly

The Daily Kos uses the terms "Bush" and "lie" a bit too often in my opinion. But they certainly nailed it here. The law Bush signed in Texas allows patients to die no matter what their family wants--the only pertinent issue is whether the family can pay (see here for an example). For Scott McClellan to describe it as "ensur[ing] that actions were being taken that were in accordance with the wishes of the patient or the patient's family" is flatly untrue. The media's lack of attention to this--while giving a veritable orgy of attention to Ms. Schiavo's plight--is outrageous.

More on Schiavo here and here. Also, check out The Moderate Voice, Southern Appeal, and Professor Bainbridge.

Oh, and while looking up links for this post, it appears the spectacular Legal Fiction blog is hanging up the spikes. Publius will be sorely missed as a superb commentator and a sharp analyst.

Politics of Schiavo

I just blogged on what I thought should be done regarding Terry Schiavo's tragic situation. Specifically, I said that in absence of a clear indication that she'd desire otherwise (which I don't believe is present here), I think we should default to saving her life. To be honest, I think President Bush hit the right note here: "This is a complex case with serious issues. But in extraordinary circumstances like this, it is wise to always err on the side of life."

The politics of the situation, however, are another matter entirely. Conservatives are up to their eyeballs in hypocrisy here, and Democrats should make them put their money where their mouth is. As Barbara O'Brien noted (tip: Kevin Drum), somehow all this support for "life" flies out the window once the government has to step in and make sure the poor have access to the care necessary to sustaining and protecting their lives.

"We need a list of politicians and commentators, including bloggers, who have been calling for cuts in Medicaid but who now have joined in the 'save Terri Schiavo' cult. These people need to be challenged to take her off Medicaid and pay for her maintenance themselves. If you know of any such people, please add their names to the comments.

The righties are going to say, it's not about money, it's about principle. But the principle is that there are people right now who are not receiving health care that they need because they can't afford it, and their lives may be shortened as a result. But there is plenty of taxpayer money to keep Terri Schiavo alive, even though she has no hope of ever being conscious.

Why? Because she's politically useful, that's why. That's your 'principle.'"

Even the American public, notoriously gullible with regards to GOP culture war putsches, isn't buying the facade that DeLay and Company actually care about Schiavo and others like her. Indeed, when the choice is between saving money and prolonging life, Conservative activists have been mysteriously silent. Much hay has been made over the fact that Schiavo's parents are willing and able to pay for her care. That's wonderful, but what of those who don't have the bankroll to care for their loved ones? Apparently, the answer is: pull the plug.

Nobody should die simply because they cannot afford to live. If there is one, basic obligation of our society, it is to ensure life to all citizens. We can debate about the other stuff later, but life has to be a baseline. It's why I consider myself pro-life on abortion, and why I consider programs like Medicare/Medicaid to be moral imperatives on society, not just "liberal entitlement programs."

Schiavo Thoughts

CNN reports that the House has just passed a bill authorizing federal courts to reinsert a feeding tube into Terry Schiavo while Court cases are pending. My own thoughts are very similar to Ross Douthat of The American Scene: Since there is someone willing to take care of Terry (her parents), and her husband could get a divorce easily enough, we should default to prolonging her life in absence of clear proof showing that she would not want to be kept in such a state (IE, a living will). I do agree with Will Baude's admonishment that we should consider the wishes of the dead or dying--and indeed, if Schiavo had put down, on paper, that she did not want to live in such conditions I'd support her being removed from the feeding tube. But with the evidence unclear, I think we should err on the side of keeping her alive. That seems to be the path dictated by the precautionary principle and the Hippocratic Oath: "First, do no harm." Baude is right that completely ignoring the clear wishes of a suffering patient is a harm. However, I think in this case it is still speculative, versus the very real harm of having her dead.

Incidentally, I just saw former New Jersey Governor Christie Todd Whitman on "Real Time With Bill Maher." She very, very briefly, so quickly you might have missed it, registered her opposition to the GOP's use of a Congressional subpoena to keep Schiavo alive (which is different than the bill just passed). From the context of her statement, it was impossible to tell whether she opposed just that procedural tactic, or whether she felt that in general Schiavo should be allowed to die. If it's the former, I agree with her, the use of a subpoena here is way beyond the scope of congressional powers. If it's the latter, I obviously disagree as noted above.

Sorry for the paucity of blogging lately. I've been very, very stressed out. Hopefully I'll get back on track soon. In case y'all care, my latest debate column is out on Victory Briefs, though you probably won't get the references unless you have some relation to HS debate.

Not "Excruiating" Enough

Marty Lederman of Balkinization links to an NPR broadcast on torture. It quotes Harvard Law Professor (and noted civil rights zealot) Alan Dershowitz as saying

"When you torture somebody to death--that is, when you kill somebody and use grave pain to aggravate the killing of that person--everybody would acknowledge that’s torture. But placing a sterilized needle under somebody’s fingernails for fifteen minutes, causing excruciating pain but no permanent physical damage--is that torture?"

As Lederman notes, yes, it is torture, you dolt.

"Just for the record: Even under the constricted definition of "torture" in current U.S. law, intentionally causing "excruiating" (i.e., severe) pain to a person in one's custody is, unequivocally, torture, and is a felony under all circumstances. Perhaps it's open to argument whether that law should be changed. But I don't really see how there's any ambiguity about whether that technique is, in fact, "torture" as things now stand."

I'm very disappointed in Prof. Dershowitz. It is sad to see such a zealous defender of American Civil Liberties seeking to whitewash such practices by questioning whether they even rise to the level of "torture." To be fair, Lederman points out that Dershowitz wants to allow torture "because as an empirical matter the U.S. does and will continue to use torture as a technique, the law should expressly indicate when and under what circumstances it is to be permitted, rather than purporting to categorically proscribe it." Whether or not pervasive lawbreaking by our government means we should just change the laws that restrain them remains to be justified.

Judging a debate tournament this weekend. Be back Saturday night.

Innocence Lost?

CNN reports on the execution of a Jimmy Ray Slaughter, sentenced to death for the 1991 murder of a women and her daughter. Slaughter proclaimed his innocence until the moment of his death, and submitted himself to a new test by neuroscientist Larry Farwell called "brain fingerprinting." The test is relatively new and unproven, but its practitioners say its accurate (see the article for details on how it works). The test results indicated that Slaughter did not commit the crime, however, the Oklahoma Pardon and Parole Board refused to grant him clemency.

I don't know if Brain Fingerprinting is accurate or not. But I remain disturbed by the execution of someone who appeared to have at least a strong case of innocence. This is yet another case which casts doubt upon the entire death penalty enterprise and shows how our system appears agnostic to even credible claims of innocence by the condemned.

Death by Laughter

Legal Fiction seems to be on a snark run. But he is quite good at it.

Rolling Through California

A California Court has now ruled that the state law banning homosexual marriage violates the state constitution. The case seems fine, nothing that stands out too much (although it does do a nice job analyzing old marital law precedent and articulating why it does not apply here). Rather than going into yet another analysis of why I think this decision is right, I'll just refer everybody to my treatise on the subject.

Blogging might be on a slightly more relaxed schedule for a few days. I just finished an exhausting term, and am looking forward to a nice, easy-going spring break. That isn't to say I'll never post, but I might be a bit quieter than normal. Look for a roaring return at least within a week.

Double Standard

Nuts and Boalts notes that the US is pulling out of the enforcement part of the Vienna Consular Treaty. Basically, that's the one that guarantees foreign nationals arrested for crimes in the US are granted the right to contact and consult their embassies in the US. The move was prompted by ongoing developments in the Medellin v. Dretke case, where the ICJ held that the US violated the treaty by, well, not granting Medellin access to his embassy before sentencing him to death (see this post in specific and the SCOTUS Blog in general to play catch up, if need be).

N+B makes the rather cliched argument "imagine if an American couple in China were tried and executed without the knowledge of the US embassy...why that'd be outrageous, violation of human rights, blah blah blah self-righteous bull shit." The normal response to that analysis (which is made in response to any number of situations) is that the US is qualitatively different from the country in question. For example, one arguing that the Iraq war was unjustified because "imagine if Syria invaded Israel in response to 'WMD's' and 'violations of international law,' we'd be aghast!" doesn't hold up because the situations are not even comparable. The US is trying to depose a brutal dictator and bring democracy to an oppressed people. Syria would be trying to overthrow an established democracy and, if past acts hold true, would engage in the mass slaughter of innocents. That alone makes the analogy invalid.

However, in this case, the argument actually holds water. Why? Because our Death Penalty system is so broken and dysfunctional that one cannot claim that America is "special" in righteousness. The US death penalty process is plagued by race and class biased, ridiculously disparate based on geography, and otherwise "wantonly and freakishly imposed." There are innumerable examples of absolutely abysmal processes that have been ignored or endorsed in the process of slamming criminals to execution. Simply put, whereas nobody can really be "outraged" that the US is trying to bring democracy to Iraq, people have a very real right to be outrageous that their citizens run the risk of being subjected to the roulette wheel that has become the American Criminal Justice system. And the very fact that this is true should give us all pause as a nation.

Sarbanes is Done

CNN reports that senior Maryland Senator Paul Sarbanes (D) will not be seeking re-election in 2006. Co-author of the Sarbanes-Oxley corporate accountability bill passed in the wake of the Enron scandal, Sarbanes has been a fine Senator and a dedicated public servant. He will be missed greatly on the Hill.

Sarbanes' retirement has some interesting political implication. Though everybody expects the Democrats to keep the seat, the $1,000,000 question is which Democrats will go after the Senate spot, and which ones will challenge incumbent Republican Governor Robert Ehrlich. There are several prominent and popular Democrats who are suspected of harboring loftier ambitions, including Baltimore Mayor Martin O'Malley, Montgomery County Executive Doug Duncan, and 8th District Congressman Chris Van Hollen. In addition, CNN floated NAACP President Kweisi Mfume as a possible contender, someone I didn't know lived in the Old Line State but would also present a stiff challenge. My personal preference would be to see Van Hollen as Senator and O'Malley as Governor, but who knows the permutations of candidacies that will arise before 2006.

Bernstein on Alterman

I first blogged on Eric Alterman's obscene suggestion that British Muslims were justified in boycotting Holocaust memorials because of the Israel/Palestine dispute here, in the context of the trivialization of genocide. Essentially, Alterman argues that because the Holocaust contributed to the creation of Israel (which Arabs dislike), they are justified in ignoring the suffering in perhaps the greatest human rights atrocity of the 20th century. Now he's brought it up again, but this time I'm not even going to try and top David Bernstein's takedown of it.

Original Sins

Feddie of Southern Appeal responds to Legal Fiction's attack on the jurisprudence of "original intent." Since I also am of the opinion that original intent makes no sense, I'll respond to his arguments here.

Since Feddie's analysis is interspersed between sections of Publius' original post, it is hard to provide a summary of his argument with block quotations. But the thrust of his argument is essentially that original intent is the only just form of constitutional interpretation because it is objective. We take a situation, ask "what would James Madison do?" (WWJMD), and rule accordingly. Other systems are inadequate because they are subjective: they entail unelected judges determining what "is" justice, due process, speech, etc.. Furthermore, he argues, the originalist position is superior because it is the most representative of what the people voted for in the first place. If "the people" were told that they were voting for X, it is unfair to then expand X into X, Y, and Z. Finally, he argues that the extensive debate record and deliberation that went into drafting and ratifying the constitution proves that there is a deducible original meaning to its clauses, for the state's certainly wouldn't have agreed to cede so much of their powers to the central government if they didn't know what the terms of the bargain were.

There are a few problems with that however. The first problem is that Feddie is being just as subjective in elevating objectivity to the paramount value of the judicial system. I'm not contesting that objectivity is usually a good thing, but there are any number of values that are "good things," Feddie just assumes that objectivity should trump them all. The constitution doesn't agree though, for good reason: not all of the goals of the constitution can be encompassed via completely objective standards. That's why we have the "necessary and proper clause." What is "necessary and proper" to carrying out Congress' I.8 powers is subjective, debatable, and most importantly it is temporally variable. It was not necessary and proper for congress to impose limitations on local commerce in 1820 to regulate interstate commerce. However, by 1940, with our far more integrated and interconnected economy, then such actions may very well have been necessary to regulate ISC. The point isn't that the meaning "changed," it's that the meaning was always contingent on specific social situations which (as situations are apt to do) DID change. The N+P clause is thus a perfect example of the constitution allowing for subjectivity in our governmental limits, which is probably why originalists are so uncomfortable with giving it any vitality. But without that clause, the founders knew that the constitution would quickly become as impotent as the Articles of Confederation. Guilty beyond a "reasonable doubt" is another case of generally accepted subjectivity in our judicial process: it is impossible to provide objective benchmarks for what that term means, and trying to do so would defeat the purpose of the standard at all. We allow subjectivity in our judicial decisionmaking all the time without question, not because we adore judicial fiat but because we realize that the infinite number and permutations of relevant facts make every case unique and thus require some bit of discretion if we're going to achieve justice in the end. Whether to give a defendant 10 years or 20, whether or not negligence was "gross" or not, whether or not someone is "competent" to stand trial, all of these are subjective determinations, but ones that are necessary to the functioning of our constitutional system, and I highly doubt the framers would dispute that. But once we accept that subjectivity is an acceptable state for our judiciary to be in, then Feddie's case unravels, because it provides no warrant for even why the framers would prefer us to look at the "framers' intent," aside from "objectivity is a good thing."

A second problem with Feddie's claims is it assumes that the text and the framers' intent are compatible. To use Publius' structure, it assumes that what the framers wanted is within the "bounded indeterminacy" of the text. However, his jurisprudence gives us no guide at all on what to do if that isn't the case. Two examples are illustrative. The 1964 civil rights act includes a clause protecting discrimination based on "sex." That clause was added at the behest of Virginia Senator Howard Smith, whose purpose (and we are quite sure of this) was to cause the bill to fail. He hoped that giving equality to women as well would pick off enough supporters of the bill to keep it from getting through the Senate. Needless to say, the plan backfired, but under an originalist approach we are still left in a conundrum. The "intent" of the clause was to make the entire bill inoperative, but that intent has absolutely nothing to do with the clause as written! What are we supposed to do? And if the intent of the framers is the only way to discern the meaning of the text, then how are the Court's supposed to interpret the clause at all? These are intractable problems. If Feddie thinks that you can dodge that one because it was only one person with that view, then I'd submit "Laci and Conner's Law" as an alternative. As I noted here, the manner in which that bill was passed makes it clear that the "purpose" of the bill was either a) to try and set the stage for banning abortion or b) to make Democrats look really bad on election day. Neither one has anything to do with the text of the bill, but they still remain the "intent." Another example is the very one Feddie uses: obscenity. He says the framer's clearly didn't consider it to be speech. Those are lovely sentiments, except for the fact that there is no objective way to interpret the word "speech" without including obscenity as well, at least if we are going to generally incorporate books and artwork into "speech," which we do. Cast aside the fact that what is "obscene" is subjective (ah yes, that again), and temporally specific ("Ulysses," anyone?), but it is contradictory to what is present in the text--which does not even suggest that speech can be restricted because it gives pastors an erection. As I've argued previously, if the framers intent and the text are not in congruence, that doesn't mean we magically morph the meaning of the text to match the framers' expectations, all it means is that the framers contradicted themselves.

Finally, while I think the above two points are enough to defeat originalism, I also don't think that Feddie really warrants his claim that the constitution clearly has a unambiguous and static meaning that the electorate was aware of upon ratification. He wrote:

" If the men who wrote and ratified the Constitution did so, as Publius suggests, with the understanding that the fundamental meaning of the document's text would evolve over time, then why all the fuss? Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference? Why use common law terms of art throughout the document if the framers/founders had no intention of incorporating the then existing (and corresponding) jurisprudence into the Constitution? And do any of y'all honestly believe that the ratifying States would have given up the bulk of their powers to the federal government in the absence of some consensus about the common meaning/understanding of the Constitution's text?"

However, to once again go back to Publius' standard, it is at least as reasonable to think that the debate was over the boundaries of our "bounded indeterminacy" as it was over some very precise static meaning. After all, if you're going to have an indeterminate text, what is considered "in" and what is considered "out" is certainly an important issue for debate. Feddie finds it inconceivable that anyone would vote for such a text. I don't see why that is: Feddie himself thinks that the constitution would be better if it banned the death penalty, couldn't the people have had the foresight to realize that new generations might have new moral insights which would expand and build upon the principles which they laid down? Feddie seems to think that the proper way to do this is via amendment. I disagree. I think the constitution should not be construed in such a way as to make it obsolete every thirty years. It strikes me as eminently reasonable to argue that though the abstract values of the constitution are eternal, granting these values any vitality requires the recognition that the situations and applications on which they are contingent are fluid and changing. And perhaps I have an overly bright view of the founding generation, but I think they took that view as well.

Uncivil Procedures

Those who like to deny that the level of partisanship has reached unacceptable proportions *cough*Powerline*cough* would do well to read, or at least skim (it's quite understandably 147 pages) this report by New York Representative Louise Slaughter on the procedural ethical violations undertaken by this congress. I won't ask you to read the whole thing, indeed, all I'm going to do is summarize and highlight just the first third of the report.

The Fall and Further Fall of "Open Rules"
Matthew Yglesias (hat tip: Kevin Drum) excerpts just one of the charts from the report, showcasing the dramatic decline of bills offered under "open rules" (which let the minority party at least offer amendments to be considered and voted on under the "5 minute rule") since the GOP has taken charge of Congress. Starting at around 45% of all bills when the GOP took control of Congress (a number which they pledged to raise to 70%), now less than 25% of all bills are offered under open rules. The consistent, unjustified use of closed rules is egregious to begin with, but Republicans have taken it way beyond even its logical horizon. Republicans enforced closed rules on the "constitutional amendment (H.J. Res. 83)...that would allow Members to appoint their temporary replacements in the case of a disaster," refusing to hear alternatives presented by Reps. Lofgren, Larson, and Rohrabacher (pg. 21). Rohrabacher, it should be noted, is a Republican, which, hardly from saving the GOP from charges of partisanship, merely accentuates the ironfist by which the house leadership governs the chamber.

A shortlist of amendments prevented from even receiving a vote because of Republican tactics include "Rep. Spratt's amendment on the Defense authorization bill to speed up the dismantling of weapons of mass destruction in the former Soviet Union (H. Res. 247), Rep. Lantos' amendment to give tax credits to American businesses that continue paying their employees who get called into active military duty in Iraq (H. Res. 681), or Rep. Collin Peterson's amendment on the Intelligence authorization bill to increase the intelligence community's resources for counterterrorism activities (H. Res. 686)" (pg. 26). The objection to these tactics doesn't hinge on the relative merit of these bills, I'm sure Tom DeLay has a perfectly reasonable justification for why he does not want to help secure nuclear material in the Soviet Union, a task that both John Kerry and George W. Bush agreed was a integral part the highest national security issue America faces today, curbing nuclear proliferation. The point is that a deliberative democracy requires all voices to be heard. If the majority party doesn't want these ideas made into law, then they can vote them down. That's one of the perks of being the majority (and is something that distinguishes Democratic use of the filibuster in the Senate, more on that in a moment).

This is an Emergency?
Republicans have also drastically increased the amount of bills that are considered "emergencies." When you hear about members of congress being forced to vote on bills they haven't been able to read, this is what they're talking about. Normally, members are given at least 48 hours notice of any meetings and given any relevant materials (such as, oh, the bill) at least 24 hours in advance. Emergency rules dispense with all of that, preventing House Members from examining the bills they are voting on. Clearly, there are bona fide "emergencies" that the House must consider, and the report concedes as much. But I'd submit that the number of bills that actually fit that category is less than the 33% labeled such in the 107th congress. I say "I'd submit" because the GOP leadership clearly disagrees: in the 108th congress that number rose to 60% of all legislation debated (pg. 33-34). 40% of all the rules considered were held in sessions after 8 PM or before 7 AM, lending the term "vampire congress" to the body. The GOP has been particularly adapt at using this process after Joint House-Senate Committees, which seek to iron out differences between House and Senate passed bills. Republicans have granted blanket waivers to ALL objections that might be made under House rules, including the rules that allow Representatives three days to read any changes, and rules that prohibit House representatives from proposing changes that go beyond the scope of the bill the House originally passed. In 24 of the 28 Conference Report Rules, the rules were labeled "emergencies" (pg. 38-40). Given the length of some of these reports, this is simply unconscionable. The Energy Bill's report (H.R. 6) was 571 pages long; Representatives were given 10 hours to read it. The Prescription Drug/Medicare bill (H.R. 1) was 852 pages long (and filed at just past 1 AM); Congressman were given 20 hours. The Fiscal Year 2005 Omnibus Appropriations Bill (H.R. 4818) was 1,645 pages long; representatives were given 7 hours to read it over. You might remember that bill as the one where Rep. Ernest Istook (R-OK) slipped in a provision allowing congressional staffers to see the confidential tax returns of any American citizen. Oh, and the 9/11 commission recommendations (S. 2845)? 244 pages in four hours (pg. 41).

Yes, the Filibuster IS different
I'm sure that my Republican pals will respond to at least some of this by referencing the Democrat's use of filibusters in the Senate to block a few of Bush's court nominees. There are several flaws in the analogy, however. The first is prevalence: Democrats have used filibusters to block 10 of Bush's 229 nominees, or slightly over 4%. The cases I've documented above are occurring 60% or 70% of the time. Democrats have used their tactics as a rare exception, Republicans have (literally) made anti-democratic tactics into the House Rules. Second, Democratic tactics don't lead to any change in law. Filibustering doesn't change the composition of the Federal Courts, it maintains the status quo. Republican tactics, however, are being used to get laws passed, to change the status quo. This is a major qualitative difference. Indeed, one could very well argue that judicial appointments are a special case that demands a more deferential standard to the minority party. This is because judicial appointments are permanent. You can repeal a law, but you can't remove a judge. Democrats cannot, via the filibuster, take any positive action with regard to the judiciary, only the executive can. The filibuster thus only serves to moderate President Bush's preferences, it cannot be used to enact the Democratic Party's own. The GOP tactics in the House, by contrast, make positive, proactive changes to our nation's statutory law and thus need to be evaluated under a far stricter standard than the filibuster. Third and finally, the Democrats are the minority party. Congressional rules are designed to make sure they have a voice in the procedure. The power imbalance between the majority and minority parties justifies some differential treatment if the minority party is to be able to influence the process. I don't even think that we're really asking for any special treatment at all, to be honest though. I have no problem with Republicans using filibusters to stop bills they dislike (assuming that a bipartisan coalition of Democrats and moderate Republicans had a majority to get it passed) and I would have serious problems with Democrats somehow preventing the GOP from debating it's proposed amendments (though as the above discussion makes clear, the GOP isn't so much interested in debating anything as railroading through whatever special-interest sop it has on the agenda at any given moment). But any realistic appraisal of congressional rules has to give the minority party at least some rules in its arsenal to combat majoritarian abuse, and the filibuster is one of the oldest of these procedures.

Conclusion
The tactics of Tom DeLay and Company cannot be justified by mere partisan differences or shrugs of "that's politics." They represent the complete and utter breakdown of what it means to live in a deliberative democracy. I have no problem with legitimate, even passionate disagreement on the issues. But that presupposes that the majority party is even going to allow the discussion. Right now, they're not, and it's America's reputation as democracy's leading light that suffers.

Powerline Collects Another Notch

Powerline keeps on racking up the awards. The Week just named them the bloggers of the year. Editor & Publisher has the report. Peter Beinart was also awarded "best columnist," which is so deserved that I can't even express it. Congratulations to all!

Beyond Jews and Christians

Sepia Mutiny, by way of Blog De Novo, points us to the only Amicus Curae filed by non-Judeo-Christians in the upcoming 10 commandments case. Like the ACLU brief, it is an utter smackdown. This one is better though, because it presents an argument that not only is irrefutable, but really doesn't cut against the common wisdom. The ACLU brief argued that the 10 commandments aren't really a major part of our historical legal tradition, which may be true but certainly isn't going to be accepted by the population at large. The Hindu American Foundation brief, however (which was filed jointly on behalf of Hindus, Buddhists, and Jains), merely asserts that a document with roots in Judaism and Christianity cannot be said to be neutral to Hindus, Buddhists, Jains, or other religions outside the tradition. Many of the specific injunctions and prohibitions mentioned in the decalogue are antithetical to the core spiritual beliefs of these religions.

Powerline says that "a moment of serious reflection should make it clear that putting up a statue representing the Ten Commandments does not amount to making a 'law respecting an establishment of religion,' which is what the First Amendment prohibits." But as this amici makes clear (and in my opinion, as that "moment of serious reflection" should too), posting a six foot by three foot 10 commandments statue right in front of the Texas Capital building clearly is "respecting an establishment of religion." There simply is no principled way to conclude otherwise. I don't even have to go into any extra-textual analysis to come to that conclusion, the rhetoric in the amendment is clear here.

According to the Oxford Essential Dictionary, we get the following definitions: "Respect," as in "with respect to" (the way it is used in the amendment), "regarding." "An" is an indefinite article, as opposed to "the" which is definite and implies singularity. "Establish" is "1. set up on a permanent basis, 2. achieve permanent acceptance for (a custom, belief, etc.) 3. validate; place beyond dispute." "An" implies that there are many ways to establish religion, it isn't just laws that say "everybody has to worship Jesus." "Respecting" means that we interpret the clause broadly, laws that are "related" to the establishment of religion are prohibited as well (I think that can be interpreted to mean laws that a reasonable person might conceive of as promoting religion). And finally, "establish" is to "validate or place beyond dispute," which is exactly what law does. In a Democratic society, law represents what is right or proper in society. Even when there are no punitive sanctions attached, when the law says one "should" act this way or affirms that a given life-path is the governmentally sanctioned one, that carries significant moral weight.

A "moment of reflection" would clearly place the 10 commandments on the wrong side of the establishment line. They clearly are at least "related" to the promotion of religion, and a fair amount of them serve solely to affirm a particular type of religious dogma. The only way to uphold their placement in our governmental centers is to entirely ignore the text of the 1st amendment, replacing the language of the document with majoritarian norms. Needless to say, this is precisely the type of judicial activism Powerline claims to abhor. But apparently the text of the constitution is only worth looking at when it affirms values Powerline agrees with.

Schweitzer for President?

Kos is giving the early nod to Montana Governor Brian Schweitzer if he chooses to run for President. A Democrat who won in one of the reddest of red states, Schweitzer holds views that might be quite appealing to the persuadable red-staters. He's pro-gun, an old-school economic populist, and holds conservationist environmental views that resonate deeply with hunters and fishermen. The Washington Monthly did a whole cover story on his rise to political power, which is a great primer in how the Democrats can compete again outside their coastal base.

I obviously think its a bit early to be naming 2008 contenders, and "economic populism" always worries me. Still, it is very clear that Schweitzer is a savvy politician and someone to keep an eye on. Everytime I read about him, it seems like he's doing something sharp. Could he be the one in 2008?

Pragmatic Textualism

I actually agree with a lot of what this Legal Fiction post says. It articulates a legal theory called "pragmatic textualism," which refuses to extend the constitution beyond what is actually written down, but similarly refuses to abide by originalist notions of what the text "means." As the author explains:

To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word "cool" can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like "cruel," "unreasonable," "speech," "commerce," "cruel and unusual," and "search" lack a clear determinant meaning. That's not to say they are wholly indeterminate, but rather that there is a range of plausible meanings."

I've been somewhat enamored of this method of thinking since reading Democracy and Distrust by John Hart Ely. Although Ely and LF are really arguing different things, they both are based off rejecting originalism, a stance I agree on. But after what is a pretty persuasive analysis throughout, LF then makes a claim that almost seems like a parodied response to his own argument:

When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the "original understanding," you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. "Cruel" can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If "cruel" could plausibly mean "A" "B" or "C" then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism-- constitutional interpretation's Third Way. Its motto is:

When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.

I understand what he's trying to say here. The Court's can't say what the law "is" because text is indeterminate. But his logic forces the question: why shouldn't the legislature be the one to choose between the different indeterminate meanings. That would be the democratic thing to do, and as long as the legislature stays within the bounded indeterminacy, I think it makes sense to assert that it should be a democratic branch who makes the call. I know Scalia would make that argument, and I'll admit it carries some weight with me.

I personally think the text should be and is intended to be interpreted broadly, both in terms of the powers granted to the government by the text and the powers denied to it by the text. This seems most in accordance with how our constitution was set up--the founders wanted a stronger system than the Articles of Confederation, but they were still very cognizant of the potential for oppression latent in any government. A non-originalist interpretation should stay faithful to that legacy, giving broad latitude to where the government is given jurisdiction (inter-state commerce, for example), but being zealous in the defense of the rights government is not permitted to impinge upon.

Thank You, Justice Kennedy

This LA Times article reminds me to write a post on Justice Anthony Kennedy (link via How Appealing). There is no doubt Kennedy is a Conservative, albeit a moderate one. However, his own political leanings not withstanding, what I like about Kennedy is that it is clear from his opinions that he has a passionate commitment to justice for all Americans, not just those politically favored. Unlike his swing vote colleague Sandra Day O'Connor, whose predilection for Solomonic rulings is turning into somewhat of a joke, Kennedy is willing to take a stand when he feels the constitution mandates it. That Kennedy, a devout Catholic, wrote some of the most stirring and life-affirming opinions in the past half-century on gay rights (Romer v. Evans and Lawrence v. Texas) is proof that he is a man of legal principle and integrity. And I still feel that his opinion in Lee v. Weisman represents one of the greatest pieces of 1st amendment jurisprudence of our times. Since his opinion in Roper v. Simmons, Kennedy has been attacked as a "would-be legislator, a dilettante sociologist and a free-lance moralist, disguised as a judge", his opinions examples of the "Supreme Court's imperialism". Conservatives need to remember that the constitution doesn't permit every policy they find preferable or advantageous. Some things do violate our constitution. It is certainly debatable what those things are. However, I personally find Kennedy's obvious and passionate devotion to justice to be inspirational, not scorn-worthy.

Texas Justice

The Volokh Conspiracy points us to a lovely Texas case where a plantiff's attorney secured a $28 million judgment for his clients...with his girlfriend on the jury. Once the news got out, the judge dismissed the woman but refused to declare a mistrial, despite other issues of professional misconduct likely present in the case as well.

Apparently, this is actually the rule of law in the state. In Armstrong v. Williams, a Texas State Court of Appeals upheld a life sentence for a murderer who was convicted with the Prosecutor's girlfriend on the jury, and expressed "no opinion" on whether or not the Prosecutor violated the Texas Disciplinary Rule of Professional Conduct 3.09, a special rule for prosecutors (Texas has rules for prosecutors?).

Ahh...Texas. I can always count on it to uphold the strictest standards of justice. At least this isn't the infamous sleeping lawyer case, where Texas Courts (thankfully overruled by the 5th Circuit Court of Appeals) held that a defendant's right to a fair trial wasn't violated when his lawyer consistently dozed off through his proceedings. I believe the Texas Courts argued this could have been a "tactic" by the lawyer.