22 July 2005

"Originalism," law, and policy

One difficulty in discussions about the originalist approach to the law is a failure to distinguish properly between what the law is and what the law should be, or, in other words, between law and policy.

Many people, I think, approach the work of the court as if it were the job of the court to make decisions on the basis of what the law should be. For example, Erwin Chemerinsky (dean of the Duke Universtity School of Law) criticized Justice Thomas, because Thomas believes that it is permissible under the Constitution for a state to establish a religion. Chemerinsky, rather than offering an analysis of Thomas's reasoning, offered instead as his critique that he doesn't want to live in a country where a state could establish a religion by legislative act. (Interview with Erwin Chemerinsky,Hugh Hewitt Show (2d Hour), 27 June 2005.) That's all well and good, but notice that he doesn't offer an analysis of any passage in the Constitution; there is no legal analysis. What we get is the mere assertion that he doesn't want to live in a country where a state could establish a religion. He doesn't lead off with an assertion that the Constitution actually prohibits a state from doing this. For him, the first question is not, "What is the law? What does the Constitution say?" No, the first question for him is, "What should the law be, in order to be satisfying to me?" That is a policy question, not a legal question. And it is for legislatures to answer policy questions; it is for courts to answer legal questions.

I wonder how Justice Thomas could have such a silly idea as that a state may establish a religion by legistlative act. Could it be because the Constitution says, in relevant part:

Congress shall make no law respecting an establishment of religion.... (Amendment 1)


Being an originalist, and applying the grammatico-historical method of document interpretation, Justice Thomas no doubt notes that the subject of the above sentence is Congress. It is Congress, not a state legislature, which is prohibited by the Consitution from making a law establishing a religion. Given the Tenth Amendment's asserton that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people


Thomas clearly believes that the states, not being otherwise prohibited by the Constitution, are in fact empowered to establish relgions if they desire to do so. And only someone who believed what I regard as the silly idea that the 14th Amendment "incorporates" parts of the bill of rights (without specifying which parts, of course--the Supreme Council of Prophets will do that) could believe that the Constitution prohibits states from establishing a religion by legislative act.

Now, like Chemerinski, I also do not want to live in a country where a state could establish a religion, especially since adherents to my religion (i.e., presbyterian-reformed) are few in number. But this venue is where my opinion rightly belongs, and in the voting booth. My prefernece on this matter ought not be given the force of law simply because I am a justice of the U.S. Supreme Court and can give this preference the force of law by placing it in a legal opinion. Nine people cannot be given the power to make their personal preferences the law of the land; it's not republican. The distinction between policy preferences and the actual law must be maintained.

Another example of this confusion of law (i.e., What is the law?) and public policy (i.e.., What should be the law?) is the furor--during his confirmation hearings--over Attorney General Gonzalez's "approval of", a Justice Department memo, which supposedly authorized torture. Specifically:

The memo included the opinion that laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants." Further, the memo puts forth the opinion that the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions in order to constitute torture." (from "Alberto Gonzales: A Record of Injustice," Center for American Progress, cited 21 July 2005)


Now, the way we heard it--or read about it--one might think that the AG, when he was Counsel to the President, was asked, "Hey, man, can we torture those guys we have at 'Gitmo'?" and said, "Of course you can." In fact, he was asked a legal question. He was asked if certain acts would violate the law. He, in turn, asked the Office of Legal Counsel to advise him.

So then, the memo in question was prepared for, not by, the AG. And it was prepared for him by the DOJ's Office of Legal Counsel at his request. (See Memo 1) The memo was an opinion on what the relevant law is with respect to torture (especially what constitutes torture under 18 U.S.C. 2340--2340A), and was written in four parts. Part I (Memo 2--12) is an examination of the statute's text and history, concluding that in order for an act to constitute torture it must inflict "pain that is difficult to endure," like the sort of pain that accompanies serious physical injury, or "extreme acts." Part II (Memo 13--22) examines the text, the ratification and negotiating history of the Torture Convention (U.N.), concluding that the treaty prohibits "only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for 'cruel, inhuman, or degrading treatment of punishment." Part III (Memo 22--27) examines the jurisprudence of the Torture Victims Protection Act (28 U.S.C. 1350) in order to predict the standards that a court will apply in trying to determine which acts qualify as torture for purposes of criminal prosecution. Part IV (Memo 27--31) examines international decisions regarding the use of sensory deprivation techniques, concluding that "there is a wide range of...techniques that will not rise to the level of torture." Part V (Memo 31--39) examines whether Section 2340A would actually be unconstitutional if it is applied to "interrogation undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers, concluding that, in fact, prosecution under Section 2340A would be an "unconstitutional infringement of the President's authority to conduct war." (I found this Part to be particularly informative regarding the Presidents's war powers, particulary his power to capture, detain and question enemy combatants "at least for the duration of the conflict." [Memo 38]) Part VI (Memo 39--46), is a discussion of various defenses against allegations of torture under 2340A.

During his confirmation hearings, the AG was asked about this memo. What astounded me was the number of questions and comments, especially from Senator Kennedy, about what whether this or that act ought to be thought torturous, as if that were the issue. And it wasn't. The issue was: What is the law? Gonzalez had a DJ memo advising him on precisely that question. I never heard any part of the memo refuted by any senator. I never heard about any of them saying anything like, "The Office of Legal Counseled erred in its examination of section 2340A in such and such a manner. How could you have missed such a glaring error in legal scholarship, Mister Gonzalez?" I never read any refutation of any of the contents of the DJ memo. Maybe I looked in the wrong places. At any rate, the questioning of Gonzalez focused on what should be considered torture, not what in fact, under the law, is torture. You see the AG's mistake, don't you? I do: he sought to find out what the law is when he should have sought to find out what the law should be. And all he had to do there, apparently, was ask Ted Kennedy. And there we get to the real culprit in all this: George W. Bush. What did he do wrong? Why, he failed to make Ted Kennedy his White House counsel! How could he have been so stupid?

I truly believe that life in the republic would be immeasureably improved if everyone would bear in the mind the difference between two questions: (1) What is the law? (2) What should the law be? The first question is for courts. The second is for legislatures.

Hello, (infidel) Kettle? This is the (islamofascist) Pot...

A caller to Dennis Prager's radio program today asserted that the cure for terrorist acts against the U.S. is for the U.S. to "keep its nose out of other people's business." (Dennis Prager Show, 1st Hour, 22 July 2005, KNUS 710-AM) This caller then rattles off several countries in which the U.S. has poked its nose. And last week, a caller to Michael Medved's radio program said that the cure for terrorism was for the US to stop spreading our culture around the world. We needed to repent of this, he claimed. (Forget for a moment the fact that our culture is being piped into these countries by the people who live there and purchase satellites!)

I am more than a little tired of the hand-wringing and self-recrimination that we are supposed to be engaging in this country. I am more than tired of the hand-wringing and self-recrimination that some people in this country are, in fact, engaging in.

According to one British writer (I can no longer locate the source), we are supposed to understand Muslim anger. We are suppose to understand how they can be angry with us (i.e., either the US specifically, or the West in general) for attempting to impose our culture on them. We are supposed to understand because of our involvment in attempting a conquest of Muslim lands going all the way back to the first crusade. (Never mind that this was undertaken not by "us" but by Catholic Europe.) We are supposed to understand because of our involvement in the colonization of Africa, the Middle East and India, etc. (Never mind that this was undertaken not by "us" but, again, by Europe. Ask yourself, for example, just why French is spoken in Sierra Leone, or Vietnam.)

Then there's the Mayor of London, suggesting that we must understand how Western policies, motivated by Western need for oil, are really responsible for all this. (See, Andrew Gray, "London mayor says West fueled Islamic radicalism", 20 July 2005,

We are supposed to understand that they believe we are trying to conquer them because we have military bases in their countries. And, of course, we can understand their position: Muslims, of course, have never engaged in any conquests of their own.

I think I will start feeling a little remorse--for only God Himself knows what--when the Turks rename Istanbul, Constantinople; and when they, themselves, express remorse and do some self-flagellating for taking what is now known as Turkey away from the Byzantines. Actually, I think we should ask for more here: The (Muslim) Turks ought to turn the area back into a Christian civilization.

I will start wringing my hands, when the Muslims surrender all those places that were Christian before they were Muslim, places like, say, Syria and Egypt, just for starters.

I will never feel--much less express--any guilt over the crusades, for two reasons. One: I am not a Catholic; I feel no need to apologize for anything Catholics have ever done. Two: Not only am I not Catholic, I am not European. Indeed, as a descendant of people who left Europe, if anything I am inclined to be rather anti-European in some respects. (And I will make no apologies for that until I see some apologies from some Europeans with anti-American feelings.) I feel no need to apologize for anything Europeans have ever done. (I mean seriously. On just my mothers side, I have both Viking and Scottish blood. If one were to assert that as a descendant of Europeans, I owe Muslims an apology for the crusades, then by the same logic I might owe an apology to the Scots for any harm they may have received from the Vikings, or perhaps vice-versa. Perhaps I should apologize to myself--twice. But since I am a descedant of them both, I can't see how this would work out. I also have some Spaniards in my ancestry, so, if anything, let some Muslims apologize to me for their conquest of Spain, a conquest it took Spaniards almost 700 years to undo.) Three: Inasmuch as the crusades were launched to regain the Holy Land...uh...from Muslims, I feel no need to apologize to those who took it from Christians in the first place. That area--one of many--was Christian before it was Muslim, Roman before it was Christan, and Jewish long, long before it was conquered by Rome.

Let Islamicist terrorists accuse the West of what they will. Their heroes and ancestors did it to ours first. They were in the conquest business long before there was a West, when the West was nothing more than a smattering of warring babarian tribes who had not even been "christianized" yet. One could say they taught the West all about conquest. I mean, really, which Western european (post-Rome) empire could compete with the Muslim East, especially the Ottoman Turks? And I don't see any of these terrorist types expressing any remorse for their--or their ancestors'--conquering ways. They're a bunch of hypocrites: conquest is just fine for them and theirs, but no others. All of this is academic anyway: if we (i.e., the US) wanted to conquer, we wouldn't be talking about our desire to conquer: we'd be done already.

Furthermore, we have an all-volunteer military. Two things would have to change in order for our military to be the effective means of extending an empire anywhere in the world. (1) We would have to have an equivalent to France's foreign legion, staffed with non-citizens who would be willing to extend our empire in exchange for the promise of citizenship. The average US serviceperson, while willing to serve for the protection of his country, is not interested in extending an empire: his interests are a bit too narrow. (2) We would have to cease to be a republic; for, as the Romans learned, an empire is not very effectively ruled with a republican form of government. (Which, by the way, is probably why we conservatives see democracy in the middle east as the most effective solution to the terrorist problem.)
15 July 2005

An experiment in "originalism"

In an earlier post I took Arlen Specter to task for not understanding what originalism means. I thought it might be handy, especially since I hope the subject won't go away for some time, to offer up an example of what originalist thinking looks like. Now the beauty of originalist thinking is that you can do this at home--with just a little help in the way of grammatico-historical analysis. In fact, I happen to think that it's so relatively easy that only a well trained lawyer can screw it up.


Let's take, for our experiment, a case similar to Roper v Simmons, a recent case, decided just a few months ago. The question in the case was whether a state law permitting the execution of a 17-year-old, convicted of murder, constituted a "cruel and unusual punishment" under the Constitution.


When turning to the text of the Constitution, we find that capital punishment is acknowledged (at least as a possibility) in Amendment 5, which states, in relevant part:


No person shall be...deprived of life...without due process of law....


Amendment 8 states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

.

Taken together we can readily understand that capital punishment, in and of itself, is not considered, in the Cosntitution, a "cruel and unusual" punishment.


In Roper, Simmons argued that the execution of a minor was in fact "cruel and unusual". Of course, the problem is that the constitution doesn't define, in the text, what it means by cruel and unusual. As Justice Stevens pointed out, in his concurring opinion in Roper:


If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989).


What is a poor originalist to do? Well, the first thing to do is to acknowledge that Justice Kennedy is correct: the Constitution would not forbid the execution of a 7-year-old today. (Let's cknowledge that what the Constitution permits it does not exactly require.) Therefore, the Constitution does not forbid the execution of a minor.


Right about here is where the originalist must part company with "vitalists" (that is what I now call people who hold to something like the "living, breathing document" garbage). For vitalists want right here to invoke the notion of evolving standards of decency; so do originalists--just in a different way.


What vitalists want to say--and what they do say--is that societal standards have changed since 1789. We would no longer sentence a 7-year-old to death. The court has to apply a standard to Constitutional review such that this changed standard is taken into account.


But does the court really have to do this? As an originalist, I can easily agree with the Court that our standards have changed. This change is reflected in the fact that the State of California, while permitting the execution of a minor, does not permit the execution of a 7-year-old. There, in the legislative act, is the evolved societal standard at work (specifically, the society of the State of California).


The originalist notes the fact that punishments for crimes are specified by Congress, or the state legislatures, respectively. And it is in legislative acts that changing societal norms--what the Court wants to call "consensus"--are reflected. Judges apply the law, not their best guesses as to what the new, improved societal norm, or consensus, is. The fact that the State of California has a law permitting the execution of a minor, demonstrates that there is not a uniform consensus in the State of California against the execution of a 17 year old. And, in contrast with the Court here, an originalist does not count it relevant, in Constitutional review, that some other state, or some number of other states, have reached a uniform consensus against the execution of minors. And it certainly is irrelevant that some other nation, or group of nations, has reached such a consensus. Again: judges apply the law, not what they think is popular sentiment. As popular sentiment changes, let the people reflect those changes through their representatives in their legislatures. That is what a legislative body is for, under our system of government.


"But," says someone, "putting minors to death is barbaric!" Well, I do just happen to agree--up to a point. That is, I do think that putting 7-year-olds to death is barabaric; I would even stipulate that it is barbaric to put a 14-year-old to death. But I don't think that it is barbaric to put Simmons to death--not for his crime. But this is my personal opinion; it is not the law. And the place for my personal opinion is in the voting booth--or in a blog--not, if I am an appellate judge, in an appellate opinion. (And there's no danger of that happening, I can assure you!)


"What you're saying", says someone else, "is that if enough people in a state think that it is not cruel and unusual to execute a 7-year-old, then that state may do so." That is exactly what I'm saying.


"But there has to be a limit on state power, don't you think? The Constitution was written to limit the power of government." I do indeed believe that there has to be a limit on state power; but the Constitution wasn't written to limit the power of government. It's purpose was much narrower. It created--and limited--the power of the federal government. The state governments have their own constitutions, which constitutions--ratified by their citizens--serve to limit their power. The upshot of my position here, then, is that the 8th amendment prohibits the federal government from inflicting cruel and unusual punishments--not, technically the states. So nothing in this discussion defeats my position that, in fact, the execution of Simmons is not unconstitutional.


"But wait", you say, "the 14th Amendment applies the Bill of Rights to the states." Well, I reply, not for an originalist. On an originalist view, the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is really rife with problems. First: How, logically, would the 9th and 10th amendments be applied against the states?


The 9th amendment states:


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Note the text. It says, in effect, that the rights identified in the Constitution are not the only rights the people have. When vitalists use this amendment against the states, they use it to find those new and unusual rights. When I have asked the vitalists I know, "Where is that right?" They invariably reply, "Well, it isn't specified in the text of the Constitution. But the 9th amendment clearly asserts that the rights in the Constitution are not the only rights the people have. And the courts have to define and protect those rights--whatever they may be--from state encroachment." But this assumes as true what has not yet been proved: that the Bill of Rights is applied to the states by the 14th amendment. What the text says is that "the enumeration in the Constitution" of rights is not to be interpreted as meaning that those rights--and only those--are all the rights that the people have.


Three things must be born in mind here. First: the Constitution, as I said above, creates and limits the federal government. It does not creat and limit any state government (except insofar as state power is limited by virtue of certain powers having been delegated to the federal government by the states). So the protection here is not a protection of rights of the people against the states wherein they reside; it is a protection against the federal government. Second: A right is a right against some entity. In this case, since we are talking about the federal constitution, these other rights, not specified are rights against the federal government. Three: the "people" in the Constitution live in states, not in limbo. The 9th amendment concerns states rights.


"Yes", someone says, "but clearly the incorporation doctrine would mean that the 9th amendment, when applied against the states, means that citizens in states do not have only those rights enumerated in their state constitutions." Perhaps. But this also assumes what has yet to be proved: that the 14th amendment does indeed apply the Bill of Rights against the states. Also: if the federal constitution is sufficient to protect the people against their federal government, a state constitution should be sufficient to protect them from their state government. And if not, then the people may take up arms to defend themselves from tyrants if need be. It's the American way.


The 10th amendment states:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Even if I could accept vitalists' arguments for the applicability of the 9th amendment against the states, I cannot see how this amendment can be so applied. Notice that this amendment addresses "powers...delegated to the United States by the Constitution." The "United States" here refers to the federal government. The powers that the federal government has were delegated to it by the states that created the union and the federal government in the first place. How would vitalists see this amendment applied against the states? To have any meaning, the 10th amendment, applied against the states should be understood as saying that "The powers not delegated to the State by this (State) Constitution, nor prohibited by it to the counties (or cities), are reserved to the counties (or cities) respectively, or to the people." This of course would be based on the understanding that the states were created by the counties, which they weren't.


Of course, all of this assumes "full" incorporation, and what the court typically applies is a doctrine of "selective" incorporation. But the need to make this distinction tells me that incorporation of all or even part of the bill of rights was not intended by the 14th amendment. It is clear that the 9th and 10th amendments cannot be applied, so if the amendment had in view the application of all or part of the remaining eight amendments then it surely should have specified which, if not all.


The most obvious application of the 14th amendment is simply that, just as the amendment has it, all persons--regardless of color, or prior status as slaves--born or naturalized in the United States are citizens of the United States and citizens of the state wherein they reside. In other words, especially as it regarded the newly freed slaves, they were not merely alien residents, with no rights of citizenship. All persons born or naturalized in the United States are citizens and are entitled to all of the rights and privileges accorded to citizens.


The second problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that nothing in the text of the amendment states this. Section 1, the relevant part of the 14th amendment, for our purposes here, states:


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


It would have been a simple thing for this amendment actually to contain language to the effect that the first ten amendments (or at least the first eight) now applied to the states. But it does not do this; and I pointed out in a previous post what the Supreme Court's, intial understanding of the 14th amendment was (as expressed in Slaughterhouse). This understanding began to change in 1925 when the court started gradually incorporating the provisions of the bill of rights into the 14th Amendment's "due process" clause by declaring each of the rights fundamental to the conception of due process. And there was no real explanation of this doctrine until Gideon v. Wainwright, 372 U.S. 335 (1963)--almost one hundred years after the amendment was ratified. Justice Hugo Black, for the majority, wrote:


"This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment." (Gideon, 372 U.S. at 341-42.)(Emphasis mine).


First, the court decided that certain parts of the 14th amendment applied to the states, never mind the actual amendment that the states thought they were ratifying! The court decides what sort of legal burden to place us all under, then later explains it to us. And if we disagree...?


Even so, the fact that the court decided to incorporate the bill of rights is to me proof that the amendment was not written and ratified with the idea of incorporating the bill of rights. Furthermore, the court later discussed incoporation as a philosophy. Writing in Pointer v. Texas, Justice Harlan said:


"The philosophy of 'incorporation,'...subordinates...state differences to the particular requirements of the Federal Bill of Rights...and increasingly subjects state legal processes to enveloping federal judicial authority." (Pointer, 380 U.S. at 409.)


It is clear to me that this "philosophy of incorporation" is nothing more than a power grab by a prehensile court. And that fact raises a good question, I think: if the court can willy-nilly decide to incorporate the bill of rights, can it not just as well--and more properly--decide to unincorporate the bill of rights? Another way of asking the question is: if the court engages in a power grab, can it not relinquish that illegitimate usurpation? I think not only can it do so, but that it ought to do so.


Now some want to say that originalists should accept the notion of incorporation because Senator John Bingham said it was their intent to apply "the sacred Bill of Rights" against the states, and originalists are supposedly all about "original intent". Frankly, I don't find the history of the debates conclusive here. But more than that, given the effect of such a move as Bingham and his ilk intended, this language certainly should have been in the amendment--at least on the assumption (which I think reasonable) that when you are signing away some of your rights, those surrendered rights ought to be explicit! The expression of Bingham's desire took place during the senate debates (1866) on the subject (i.e., the 14th Amendment). This hardly means that this was the purpose that other senators had in mind. And it certainly does not mean that the states understood the amendment as having this effect upon them. (Besides, by "intent" most of us mean "meaning," as arrived at by application of the grammatico-historical method, or interpretation by use of regular rules of grammar and the facts of history. Utilizing this method of interpretation, one takes into account the historical settings and situations in which a text is written, in an effort to draw out the intended meaning which grammar cannot do alone. To know something of the life and times during which a text was written greatly enhances understanding of the text by placing what we read within its historical context. The grammatico-historical method seeks to interpret the words of a text in light of what the words meant when the document was written.)


The application of the Bill of Rights against the states has been nothing short of a "cold" revolution, a revolution in the relation of the states to the federal government, a revolution in the powers of both federal and state governments. This is exactly what the court said in Slaughterhouse (see my aforementioned post).


Given the fact that the incorporation doctrine radically alters the form of government created by the Constitution, it is not too much to require that the language in the amendment should make this radical alteration more explicit.


The third problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that it is not at all clear that the states understood themselves to be ratifying an amendment which would do this. It surely is not right that states ratified an amendment, only to find out later that, by ratifying said amendment, they had surrendered as much power as the incorporation doctrine asserts they surrendered.


Now, I understand that some very bad 14th amendment jurisprudence took place, like, for example Justice Waite's opinion in U.S. v. Reese, 92 US 214 (1876), which effectively deprived blacks of what the 14th amendment provided. But I believe this bad jurisprudence could have been corrected without applying the notion that the 14th amendment applies the bill of rights against the states. As it is said: abusus non tollit usum ("prior abuse is no argument against proper use"). In other words, it is no argument against the position I take on the 14th amendment that this position was formerly and regularly abused by the Supreme Court. (This is especially the case if you think, as I do, that the position of the court in cases like Reese was not reached on the basis of originalism!)


Now, getting back to the death penalty and minors: The Constitution, on a proper view (meaning, a view which applies the grammitco-historical method), does not prevent the execution of minors, specifically, in this case, a 17-old. As for the issue of evolving societal standards, these standards are held in the minds of people, who live in states whose laws are created by popularly elected representatives. The acts of these legislatures, under our Constitution, are the proper places for these evolving standards to work their will, and to make themselves known. (Interview with Robert Bork (2d hour), Laura Ingraham Show, KNUS 710-AM, Denver, Co., 15 July 2005.)


Of course, what the court said in Roper, was something akin to this. Legislative acts do reveal evolving standards; and a majority of states have outlawed such executions. Therefore, there is now a societal standard which rejects such executions, and since evoling standards must determine the meaning of terms such as "cruel" and "unusual" in the Constitution, these types of executions are now unconstitutional.


But note two things about all this. First, the states which freely created this putative new consensus, cannot now freely reach a contrary consensus later. Second, I would also like to point out, that the Court, in Reese, among other cases in which the court failed to protect the rights which the 13th and 14th amendments were intended to extend to blacks, was only doing just what the court now asserts that it may do. It simply applied its view of what the national consensus was, regarding the status of blacks in US society, as evidenced, I am sure, by the legislative acts of states. If one can accept that approach when it comes to, among others, death penalty cases, then I find it difficult to see why one cannot accept it when it comes to civil rights cases--cases like Reese and, of course, Plessy v Ferguson, 163 US 537 (1896).

08 July 2005

Hello, Kettle? This is the Pot...

According to the New York times, conservatives are attacking AG Gonzalez. It is interesting that this would make the news. After all, if any group has a demonstrated history of attacking judicial nominees (and the AG hasn't even been nominated) it is the left. From Robert Bork to Clarence Thomas and the recent Bush appellate nominees, the left has launched an artillery barrage on one "conservative" nominee after another. (And Bork, who hasn't been nominated to another court since 1987, continues to be attacked by the left. Bill Bennett played a clip of some remarks made recently by Ted Kennedy about "Bob Bork's America". [Interview with Robert Bork (3d hour), Bob Bennett's Morning in America, KZNT 1460-AM, Colorado Springs, Co., 6 July 2005.])

Besides, nothing that I have heard said about the AG comes near to what has been, is, and most likely will continue to be said about "conservative"nominees.

Not, of course, that I am surprised at hypocrisy on the left. I have quite a few friends and relatives who are liberals. (I was a liberal in my mis-guided youth. I began my slow conversion during the summer of 1980 when--as a fifteen year old--I watched both the Democrat and Republican national conventions. By I digress.) It continues to amaze me how many of these liberal friends and relatives complain about our country's past sins. One of my favorite complaints is about how we stole this country from the natives. The loudest of these complainers--a child-less couple--lives in a huge house, on land once "owned" by the natives. Another interesting fact about all this: these same people complain about how some people have too much money and buy things they don't need. Yeah. Like houses bigger than the one which housed the Brady bunch! Apparently, the only people who aren't "too rich" are rich liberals. And isn't it odd that there is such a thing as a rich liberal? You would think that if they were really as generous as they whine that they (and no one else!) are, then not a single one of them would be rich.

If I were poor and these people were determined to help me, I would go down on my knees and pray, "God deliver me from my benefactors, for they are hypocrites."
06 July 2005

Specter...again

Arlen Specter again: If we followed original intent, the US Senate would still be segragated, with caucasians on one side of the chamber and blacks on the other side. The man is either an idiot, or a liar. He is an idiot if, as a lawyer, he does not--as Bork put it--understand what originalism means. He is a liar if, as I believe, he does in fact know what originalism means, but lies about it for some reason. Either way, as far as I am concerned, the man has no business having a say on who should be on any bench, not even justice o' the peace in Mayberry, RFD! (Of course, that is up to the people of the state of Pennsylvania, who keep electing him to the Senate which, of course, means that he does have a say in who sits on a federal bench. I'm just saying that the people of PA, who elect him, ought to think about whether he's really qualified. I mean, after all, the man is either a liar or an idiot.)

Furthermore, and demonstrating either his ignorance or his dishonesty (well, he is a politician, after all!), Specter is just wrong about what originalism means. Here, paraphrased, is how Scalia defines originalism: One cannot adopt a theory that the Constitution is evolving and the court will tell you what it means.

But there is another reason why Specter is wrong: the Constitution, specifically in the 14th Amendment (sec. 1) forbids discrimination:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis mine).

Now, on an originalist view, the meaning of that amendment will never change. That is not true, on the contrary view (i.e., "living breathing document" sewage). On the contrary view, any term in the amendment could be re-defined such that--what do you know?--the Constitution really does permit states to deny equal protection of the laws. And let's be clear: there is nothing--NOTHING--that would prevent the court from re-defining any term. It already does so with impunity.

(Speaking of Bork: yesterday, he had an editorial printed in the Wall Street Journal (and available here) in which he describes the problem with what the court has become. It is a must read.)
05 July 2005

Supreme "uniters"?

Arlen Specter thinks that whoever Bush nominates to the Supreme Court ought to be a uniter. We don't want someone from the extreme left because that judge won't "unite" us. Neither do we want someone from the extreme right because, again, that judge won't "unite" us. Okay. Get Specter off the Judiciary Committee: he has no idea what the heck a judge does!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

What in the world does he mean by this garbage about "uniting"? There are Liberals in this republic; and there are Conservative in this republic. (There are also those other people who think they are Moderate, which only means they have not the courage to confess that they are liberals. But I digress.) What does a "uniter" do? Make liberals cease to be liberals? Make conservatives cease to be conservatives? If judges are going to be "uniters", who in the world is actually going to decide cases under the law?

Here is what is united in this country: the states who created this union. Let me say that again: the states created the union. And what unites the states is the agreement to "hang together" under terms specified in the Constitution, a Constitution which the states freely ratified.

Whatever the answer, I don't not want "uniters" on the courts. I want originalists; I want judges who know what the heck a law is, specifically in a republic. And in a republic--our republic, anyway--a law is created by act of a legistlative body, approved and carried into effect by an executive. In a republic, the courts do not pass judgment on the wisdom of the people and/or their elected representatives, deciding what the law should really be; they decide whether the law--as created by the legislature--has been followed. And in a republic, courts don't do this very well when they are allowed to declare themselves empowered to alter the definitons of words in the laws, thus changing (i.e., amending) the laws. In a republic, the only body who changes the laws is the same body that created those laws: the legislature.

And I also believe that in a republic, the citizens ought to question whether their judges ought to resolve issues by recourse to "settled" legal principle. Judicial review is "settled" principle. The "incorporation" doctrine (i.e., the 14th amendment applies the Bill of Rights against the states) is "settled" principle. And who says so? Why a handful of members of the legal community. But when did we cede to the legal community the priviledge of "settling" things for us?
01 July 2005

Bush, 911, and the Left

According to the President's detractors, Bush "invoked the tragedy of 911 to justify our occupation of Iraq" in his speech to soldiers at Fort Bragg. This is yet another demonstration of just the sort of perversion of fact and logic to which the Left is willing to resort in doing nothing but crowing about a President they simply do not like, and who will never do anything they like--except leave office. (Read the text of the speech here.)

Let's look at each of Bush's mentions of 11 September 2001 in turn.

The troops here and across the world are fighting a global war on terror. The war reached our shores on September 11, 2001

Here, the the President makes two assertions. The first of these two assertions is that the military is at present "fighting a global war on terror." This is undeniably true. It would be true even if we were not doing any fighting at all in Iraq. The second assertion is that this war "war reached our shores on September 11, 2001." That also is true. Neither of these two propositions, clearly, is intended as a justification for our presence in Iraq.

After September the 11th, I made a commitment to the American people: This nation will not wait to be attacked again. We will defend our freedom. We will take the fight to the enemy.

Here, there are two assertions: (1) that, after--and as a consequence of--the events of 11 September 2001, the President resolved that our approach to terrorism on our soil will not be reactive, but active; and (2), as an extension of the logic of the first assertion, we will seek out terrorists and hit them before they hit us. Although, it is true that one reason we are in Iraq is the connection between Saddam Hussien and global terrorism (note that I said global terrorism, not al-Qaeda), it is also true that these propositions could be true apart from 911. Let us say that 11 September 2001 never happened. President Bush could still have decided that we must defend our freedom by taking the fight to terrorists. He might have made this policy decision for no other reason than that he thought his predecessor's approach to terrorists (i.e., to indict and try them in court) was misguided. Furthemore, on the basis of that same logic (and quite apart from 911), he could have decided that we needed to invade Iraq and get Saddam Hussein for no other reason than his persistent refusal to abide by UN resolutions.

The only way our enemies can succeed is if we forget the lessons of September the 11th, if we abandon the Iraqi people to men like Zarqawi and if we yield the future of the Middle East to men like bin Laden.
Is this really an "invocation of...911"? (What in the world does it mean to "invoke" a tragedy, anyway?) Here, we do get close to reliance upon the events of 11 September 2001, as a justification for our presence in Iraq. But so what? One of the things that the left likes to forget is that the President asked for, and received, a declaration of war against terrorism, not a declaration of war against al-Qaeda. Even if we grant the left the premise that there is no connection between Saddam and al-Qaeda, there can be no intelligent dispute that there is a connection between Saddam and terrorism. And it was, again, terrorism against which war was declared. (Bye the way, on the connection between Saddam Hussein and al-Qaeda, see SoCalPundit's resume here. )

They are trying to shake our will in Iraq, just as they tried to shake our will on September 11, 2001. They will fail.
Still no use here of 911 as a justification for our presence in Iraq. All we have here is a description of what the enemy, in Iraq, is attempting to do to us, in Iraq. It does just happen to be the same thing they were trying to do on 11 September 2001. If 911 is being "invoked" here, it is being invoked as a reminder of what the global war--only a part of which is being fought out in Iraq--is about: terrorism. It may be that there is no connection between 11 September and Saddam Hussein, but there is one between terrorism and Saddam Hussein. We went into Iraq to get Saddam as a consequence of the global war on terrorism. This global war on terrorism was declared by Congress. We are still in Iraq, not because of 911, but because of the terrorists who went in there because we went in for Hussein. We are not occupying Iraq because of 911, but because of the terrorists. Saddam Hussein, a supporter and comforter of terrorists, had supporters. It's their fault we are still in Iraq.

After September 11, 2001, I told the American people that the road ahead would be difficult and that we would prevail. Well, it has been difficult and we are prevailing
Keeping in mind that the tragedy of 11 September marked the beginning of participation in the global war on terrorism, this "invocation" of said tragedy, has nothing to do with our presence in Iraq. This same "invocation" would be appropriate in any speech, at any point in a global war on terrorism.

A speech given to those who are fighting a war, with no mention of the event--or events--which precipitated that war would be rather strange. Imagine a speech given to soldiers in WWII in which no mention was ever made of 7 December 1941. I can imagine a speech, given by General Patton, in which he reminds his men that "these Germans are allied with the sons o' bitches that attacked Pearl Harbor. Go get 'em. Go through their ranks like crap through a goose. Grease your tanks with their ****ing guts! And if you find yourselves getting squeamish about it, remember Pearl Harbor." What Bush did,though not as "colorful" as Patton's style, wasn't very much different.

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James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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