The Madison Principles

The Wall Street Journal Online: Over the Top on Amnesty International

2005-06-07T02:33:00.000-07:00

The Wall Street Journal Online offers a full frontal attack against Amnesty International in Amnesty and al Qaeda. The editorial comes after Amnesty International sharply criticized the U.S. government's treatment of prisoners in Guantanamo Bay. On Larry King Live last week, Vice President Cheney also got into the mix, stating "For Amnesty International to suggest that somehow the United States is a violator of human rights, I frankly just don't take them seriously." The WSJ, nor Vice President Cheney, can be taken seriously. In fact, human rights violations uncovered by Amnesty International were relied upon by the Administration as one of the justifications for going to war in Iraq (turning out to be the only accurate justification). On several different occasionans, Defense Secretary Donald Rumsfeld made the following comments:

We know that it’'s a repressive regime. Anyone who has read Amnesty International or any of the human rights organizations about how the regime of Saddam Hussein treats his people. ...

[I]t seems to me a careful reading of Amnesty International or the record of Saddam Hussein, having used chemical weapons on his own people as well as his neighbors, and the viciousness of that regime, which is well known and documented by human rights organizations, ought not to be surprised. ...

[I]f you read the various human rights groups and Amnesty International's description of what they know has gone on, it's not a happy picture.

The Administration's sudden distrust of Amnesty International information may be boiled down to politics, but the WSJ should know better.

The article begins with Amnesty's recent comparison of Guantanamo Bay to Soviet gulags. Although Amnesty referred to the U.S. war prison as the Soviet gulags of our time (not Soviet gulags), the WSJ goes on to recite, disingenously, their disdain of the comparison using a former Soviet prisoner's displeasure of Amnesty's opinion. Yet, neither the former gulag prisoner, nor the WSJ's editorial staff, have ever been to Guantanamo Bay. The whole point of having prisoners overseas is to prohibit applying the same rights our citizens hold so dearly. The WSJ's last paragraph says it all:

We don't recount this story to suggest Amnesty was actively in league with Saddam. But it shows that, even after 9/11, Amnesty still didn't think terrorism was a big deal. In its eagerness to suggest that every detainee with a Muslim name is some kind of political prisoner, and by extension to smear America and its allies, Amnesty has given the concept of "aid and comfort" to the enemy an all-too-literal meaning.

If it is necessary to apply different rights in different situations then so be it. Hence, we cannot always have it both ways. Amnesty International's purpose is to dislose human rights violations around the globe. It is our government's role to balance rights afforded versus safety concerns. The WSJ and others should stop pretending otherwise. Read the entire editorial here - if you can stomach it.

Medical Marijuana: Gonzales v. Raich

2005-06-06T19:58:00.000-07:00

In Gonzales v. Raich, the Supreme Court struck down California's medical marijuana law. This is a huge blow to States' rights. Justice Thomas' dissent "States" it best:

If Congresscan regulate this under the Commerce Clause, then it can regulate virtually anything - and the Federal Government is no longer one of limited and enumerated powers. ...

The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens.

Even many conservative States, having no intention to adopt similar laws, wrote amicus curia briefs on California's behalf. The Supreme Courts should let the States legislate in peace. However, I stongly suspect the Court ruling was influenced by recent challenges to the Endangered Speices Act (ESA). A ruling in favor of California possibly would have resulted in the end to the ESA.

For more on Gonzales v. Raich, see Professor David Berstein's account on The Volokh Conspiracy and Michael McClellan on Port McClellan.

Market Practices

2005-06-05T19:30:00.000-07:00

The New York Times reports Bristol-Myers, a giant in the pharmaceutical industry, settled with the U.S. Department of Justice and investors for over $800 million. The company was apparently engaging in a practice called "channel stuffing," whereby Bristol-Myers would offer wholesalers incentives to overload their inventory, inflating Bristol-Myers sales figures for investor confidence.

One wonders what market failure continually encourages executives to value apparent profits over actual profits. Isn't the purpose of business to make money? Perhaps the trend of stock incentives for corporate executives has reached its limit. Stock incentives appear to put executives in step with potential investors rather than company stockholders.

Funny Quote of the Day

2005-06-02T23:43:00.000-07:00

That woman who knew I had dyslexia; I never interviewed her.

George W. Bush, circa September 16, 2000. The presidential candidate is referring to Gail Sheehy, who wrote an article for Vanity Fair, proposing that Governor Bush suffered from dyslexia.

This is an old quote, but it made me laugh. I am certainly no fan of public speaking, nor do I care whether President Bush is a polished speaker, but it is funny no matter who says it.

David Brooks on Karl Marx

2005-06-02T18:25:00.000-07:00

Via The Right Coast. an interesting article by David Brooks in the New York Times. Will the rising cost of higher education create a new form of class struggle?

"Deep Throat" Revealed

2005-05-31T17:28:00.000-07:00

Today, CNN confirmed today Vanity Fair's revelation of "Deep Throat's" identity. Mark Felt apparently "outed" himself when his mysterious persona morphed from villain to hero. CNN reports the highlights of the Vanity Fair article:

Felt, now 91, was the No. 2 official at the FBI in the early 1970s. The information he provided Washington Post reporters Bob Woodward and Carl Bernstein helped them break many of the stories that led to the resignation of President Nixon in August 1974.

The revelation ended more than three decades of speculation about Woodward and Bernstein's famous confidential source in reporting on the cover-up by the Nixon White House following the bungled break-in of National Democratic Committee headquarters at the Watergate office-hotel complex in June 1972.

Woodward, Bernstein and Benjamin C. Bradlee, who was the Post's executive editor at the time, confirmed that Felt was Deep Throat in an article Tuesday on the paper's Web site.

Thank God, the conspiracy theories finally end - so sorry Oliver Stone.

Quote of the Day

2005-05-31T09:32:00.000-07:00

I cannot undertake to lay my finger on the article of the Constitution which grants a right to Congress of expending, on the objects of benevolence, the money of their constituents.

James Madison

History & Bush - Update

2005-05-31T08:54:00.000-07:00

Professor Rappaport has graciously responded to my post, History & Bush. History & Bush was originally a response to a post by Professor Rappaport, History Professors on George W. Bush, on The Right Coast. Over the course of a couple of emails, Professor Rappaport provided the following response (I have taken the liberty to shift around the content to provide for better coherency - for emails can be taken out of context):

First, I don't defend the Bush Administration on all matters. I think there is quite a bit which is problematic. Second, I agree that knee-jerk charges of liberal bias are problematic.

I suppose that my basic point is that I simply don't see how the historical assessment could be reached, except on the basis of either liberal bias or extreme liberal values. The main thing that the Bush Administration has done, so far, has been Afghanistan and Iraq, and its other responses to Sept. 11. We simply do not know how these will turn out. Anyone who tells you otherwise is selling something. What is more, there has been quite a bit of potentially positive developments, such as the numerous movements, small and large, toward democracy throughout the world. Given all this, and given the kind of points made by that blogger, I think my statements are fair. But you may of course disagree.

Professor Rappaport also provided the following:

There is a difference between speaking with the authority of a historian, which requires that one speak about history, and being an historian who comments on current affairs. Certainly, the historians can do the latter, but they can't claim to have authoritative knowledge. The bigger problem is that they did not really use their special knowledge to make their points. For example, Bush inherited a recession. Yet, the blogger holds him responsible for the bad economy. That is not historical analysis; it is simply politics.

These comments are well taken. The professor and I may disagree on some substantive issues, but it appears I misinterpreted his post as another blanket attack on "liberal academia."

The Senate, the Filibuster & Majority Rule

2005-05-30T14:19:00.000-07:00

History Professor Robert G. Carlton, author of Cold War Presidents and Their 20th Century Antecedents, has offered, via Port McClellan, an interesting comment on the Senate's recent filibuster of judicial nominees. Professor Carlton writes in part:

Most Americans, including myself, are opposed to investing absolute power in the majority. That's why the Constitution, starting with the Bill of Rights in 1791, has been amended several times, to prevent the will of the majority from undermining the legitimate rights of individuals and minorities. These amendments - thankfully - have achieved the goals for which they were created, the protection of individual and minority rights, and will continue to do as long as we have an independent judiciary.

But the filibuster, unlike our amended Constitution, is an unnecessary obstacle to majority rule, and as such, should be abolished. Why should 40% of the members of an undemocratic institution be allowed to frustrate the will of the majority, as it is doing today in terms of the president's judicial nominations, as it did in the past in terms of progressive legislation, especially civil rights?

The real question, for believers in majority rule, is why the Senate exists at all. Perhaps we need a constitutional amendment abolishing it - and then we wouldn't have to worry about the filibuster.

The Senate, of course, exercises absolute veto power over everything the federal government does: No bill becomes law without its approval, no presidential appointee of significance can serve without its approval, no treaty is binding without its approval, no war can be fought without its approval, no tax dollars can be spent without its approval.

And yet, representation in this body, much to the chagrin of Madison, was compromised at the Constitutional Convention to placate delegates from the small states, who were threatening to bolt, in such a way as to almost constitute an insult to the concept of majority rule.

The comment highlights our willing acceptance, and recent blindness, of the Constitution's structural components facilitating minority obstruction. To read Professor Carlton's comment in its entirety, see here.

Quote of the Day

2005-05-30T13:15:00.000-07:00

The eyes of the world being thus on our Country, it is put the more on its good behavior, and under the greater obligation also, to do justice to the Tree of Liberty by an exhibition of the fine fruits we gather from it.

James Madison, Letter to James Monroe, December 16, 1824.

Quote of the Day

2005-05-26T16:40:00.000-07:00

Nothing can be more absurd than the cavil that the Declaration contains known and not new truths. The object was to assert, not to discover truths, and to make them the basis of the Revolutionary act. The merit of the Declaration, therefore, could only consist in a lucid communication of human rights, in a condensed enumeration of the reasons for such an exercise of them, and in a style and tone appropriate to the great occasion, and to the spirit of the American people.

James Madison, Letter to Thomas Jefferson, September 6, 1823.

History & Bush

2005-05-26T14:31:00.000-07:00

University of San Diego School of Law Professor Michael Rappaport, on The Right Coast, expresses some indignation at historian views of the Bush Presidency. Professor Rappaport writes in part:

One would think that historians would understand that a judgment of this kind requires us to wait many years. After all, certainly it is possible that George Bush has helped to launch a movement towards democracy throughout the world that would render his presidency a success. Apparently, these 'experts' don't need the knowledge that time would provide.

Such a view appears to exclude historians from ever commenting on current events. Of course historians should understand that the outcome of policy is unpredictable, but should their expertise of history foreclose analogy to past events? I'm sure Professor Rappaport would quickly point to the historical failure of communism as Democracts advocated some socialist policy like universal healthcare. Moreover, I would think that Professor Rappaport would value the positive historical expertise provided by Victor Davis Hanson. In fact, Professor Rappaport often refers to the famous historian's frequently published articles. Does VDH not "understand that a judgment of this kind requires us to wait many years"?

Historical analysis is not contending that idealistic policy should never be pursued, it is only contending that similar policy failed in the past. Each person can come to his own conclusions about how much weight should be placed on that evidence, and of course history professors place great weight on what they know. Simply dismissing the analysis because it opposes Bush Administration policy or is within the scope of "academic elite" rhetoric, without making competing historical arguments, is small. There are two proper approaches to take: (1) Show how historians are manipulating analogies to history to meet their personal "liberal" political agenda; or if the historical analogies are well-grounded; (2) Argue historical evidence offers little reliable evidence to predict the future of President Bush's policies. "Liberal elite" diatribe does not change history. Such attacks are especially inappropriate against history professors when factual evidence should be readily available for Professor Rappaport's counter-arguments.

Quote of the Day

2005-05-25T00:05:00.000-07:00

If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.

James Madison

Quote of the Day

2005-05-24T08:00:00.000-07:00

The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.

James Madison, Letter to James Monroe, Oct. 5, 1786.

The Supreme Court & Due Process: Deck v. Missouri

2005-05-24T06:27:00.000-07:00

Yesterday, the Supreme Court held 7-2 (Chief Justice Rehnquist took part), in Missouri v. Deck, the Due Process Clause of the Fourteenth Amendment prohibits States from shackling defendants in the penalty phase of trial "unless that use is justified by an essential state interest ? such as courtroom security ? specific to the defendant on trial." For the majority, Justice Breyer wrote the Court's opinion, and in dissent, Justice Scalia joined Justice Thomas' opinion. The holding's outcome is limited, finding that courthouse security cannot implement a general restraint/shackle policy without specific necessity applicable to individual defendants.

What makes the holding intriguing is not the outcome, but the styles of both Breyer's opinion and Thomas' dissent. Orin Kerr, on The Volokh Conspiracy, recently commented on Justice Stevens' originalist dissenting opinion in Grahnolm v. Heald (The Wine Opinion). Like Stevens', Breyer's opinion begins directly with "originalist" support for rendering the shackling violative of the Due Process Clause. Of no surprise, Thomas offers a contrary interpretation of the historical understanding.

It is firmly held that a criminal defendant cannot be shackled during the trial phase of the proceedings. Breyer quotes William Blackstone, "[I]t is laid down in our antient books, that, though under an indictment of the highest nature,? a defendant ?must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape (?If felons come in judgment to answer, ? they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will?). One of the several justifications for the common law understanding is that it adversely effects the jury's perception of the defendant's character (i.e. if the defendant is enough of a danger the state restrains him court, the jury will infer the need to incarcerate the defendant). Thus, Breyer essentially concludes, "The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community - often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point."

Thomas finds the intent behind the common law understanding inapplicable to modern defendants. Thomas emphasizes the common law rule was specifically aimed at preventing the pain and torment shackles caused, a problem not faced with today's restraints. By focusing on 19th century State practices, Thomas' dissent is rather convoluted, making it less persuasive. Although Thomas briefly shows Breyer's concern regarding jury perception of a defendant's character was not part of the common law intent behind prohibiting the practice (but taken from modern Court concerns offered in Holbrook v. Flynn (1986) and Illinois v. Allen (1970)), he spends a substantial portion of his opinion discussing the inconclusive State understanding of the doctrine. That is, "In the absence of a common-law rule that applies to modern-day restraints, state practice is also relevant to determining whether a deeply rooted tradition supports the conclusion that the Fourteenth Amendment?s Due Process Clause limits shackling." But this second-stage reasoning by Thomas seems irrelevant, if not contradictory.

Thomas readily admits that States never practiced the shackling of defendants until after the Fourteenth Amendment's Due Process Clause was adopted by the States (the 1870s). Thomas states, "The Court does not even attempt to account for the century of virtual silence between the practice established at English common law and the emergence of the rule in the United States. Moreover, the belated and varied state practice is insufficient to warrant the conclusion that shackling of a defendant violates his due process rights." The fundamental flaw in this analysis is Thomas' assumption that the absence States shackling defendants does not support the practice being violative of the Due Process Clause. State political branches not implementing a policy subject to judicial review is not less, but seemingly more supportive because the people (not some State judges) understood the benefits of such a practice were outweighed by fairness concerns. This inductive reasoning approach is not typical of Thomas' reasoning. In 44 Liquormart, Inc. v. Rhode Island. Thomas argued that he did "not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." In 44 Liquormart, there was no conclusive evidence commercial speech was protected by the First Amendment. In fact, Scalia often argues the existence of such State laws during the adoption of the Civil War Amendments shows that the laws were not intended to be superceded by the Amendments. Therefore, the absence of historical support (because it was a non-issue amongst the States) does not relegate the right to one unprotected under the Constitution. It seems the failure of States to propose legislation that might tread upon a right indicates the right was considered of higher value, not less. What is Thomas really is arguing in this case? Thomas seems to require that State laws existed encroaching on analogous rights, were further challenged in the State courts, and then stuck down as violative of State Due Process. Quite a high standard of proof.

None of this is to suggest that Breyer gets the better of Thomas in this case. Breyer's analysis is far from rock solid. To come to one's own judgments on the case, all one needs to ask is whether, without any specific concerns (security mostly), a State's shackling of a criminal defendant during the penalty phase of trial leads the jury to negative inferences regarding the defendant's character. In other words, is it fundamentally unfair for the State to shackle a defendant without specific cause during the penalty phase? A narrow interpretation of history is silent on the issue, a broad interpretation may suggest the Fourteenth Amendment's Due Process Clause prohibits the practice.

Most importantly, but not germane to either the majority or dissent's conclusion, the case does show some of the inherent problems with historical analysis. Shifting from inductive reasoning to deductive reasoning can be used as an arbitrary means to achieve subjective policy preferences. As "liberal" Justices begin to engage Scalia and Thomas' historical understanding, historical reliance may show that interpretation of history by lawyers sitting on the Supreme Court is no less open to drastically different conclusions than as between two highly qualified historians.

Read Deck v. Missouri in full here.

Quote of the Day

2005-05-23T00:00:00.000-07:00

Of all the enemies to public liberty war is, perhaps, the most to be dreaded because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes... known instruments for bringing the many under the domination of the few. … No nation could preserve its freedom in the midst of continual warfare.

James Madison, Political Observations, 1795.

Bush & the Veto: Stem Cell Research

2005-05-22T15:47:00.000-07:00

CNN and the L.A. Times report President Bush is threatening to veto stem cell legislation proposed by House Republicans. The new House bill authorizes federal funding for embryos "created by couples at fertility clinics that the couples do not plan to use."

President Bush has always defended his stance on stem cell research as seeking to balance ethical considerations, holding firm to the ideal that destroying life is inappropriate in order to save life. In contrast, Republican Senator Orrin "Hatch, who calls himself a 'strongly pro-life senator,' said after Bush's veto threat: 'I do not believe that life begins in a Petri dish and, like many others, hope that these excess embryos can benefit mankind. For me, being pro-life means helping the living.'"

Bush's persona in this area appears in stark contrast to his "dead or alive" and "bring 'em on" oratory. There are certainly policies of the Bush Administration recognizing necessary tradeoffs. Is not war one of them? Further, it is a rare day when the House's position on a morality issue exudes moderation compared with the Executive Branch.

Question: Is the veto threat mere posturing or will Congress force the President's hand?

Quote of the Day

2005-05-22T02:49:00.000-07:00

The great desideratum, which has not yet been found for Republican Governments, seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the State. The majority, who alone have the right of decision, have frequently an interest, real or supposed, in abusing it. In Monarchies, the Sovereign is more neutral to the interest and views of different parties; but unfortunately, he too forms interests of his own, repugnant to those of the whole.

James Madison, Letter to George Washington, April 16, 1787.

The Port On Torts

2005-05-21T19:34:00.000-07:00

Michael B. McClellan, author of Port McClellan, has offered, via TCS: Tech Central Station, one of the better commentaries on tort reform.

McClellan concludes:

While reforms are unquestionably necessary to reverse, or at a very minimum, contain the growing lawsuit culture in America, it is important that the reaction not veer too far in the opposite direction. For example, a legislatively-imposed absolute cap on medical liability (including economic damages) at say $1 million could have catastrophic effects, leaving an uninsured paralytic with insufficient funds to cover his medical costs. Such a regime would be a disservice to the pursuit of justice.

In spite of the growing list of gross manipulations made by ominously creative trial lawyers, reformers must not lose sight of the fact that businesses and professionals do occasionally act negligently, and innocent people are seriously hurt by their actions. Reforms must seek to restore balance to the malfunctioning system, without unjustly protecting the negligent or denying legal remedies to the truly injured. Such balance in the law may be difficult to attain, but such is necessary if justice is to be the end.

I must confess that I am not a fan of Tech Central Station, tort reform rhetoric or the analysis of McClellan in other publications, but this assessment carefully distinguishes between efficient and inefficient tort reform. Nothing is gained by precluding lawsuits compensating for actual losses people incur by the acts of others. It encourages inefficient conduct to do otherwise. Weeding through the good and bad rhetoric on tort reform is essential.

Read McClellan's Is the Tide Turning on Torts? in full here.

Quote of the Day

2005-05-21T19:28:00.000-07:00

I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.

James Madison, Virginia Convention, June 16, 1788.

Ann Coulter On Newsweek

2005-05-20T15:59:00.000-07:00

Ann Coulter wrote an entertaining column on the Newsweek fiasco. Although Coulter's often vile and misplaced over-generalizations are lowbrow, she is a gifted writer. She is still not in the same league as her left-wing counterpart, Maureen Dowd.

The substance of Coulter's column - drum roll please - liberals are to blame for the Newsweek debacle. Coulter's surprising assessment does not dispute the story's truth. All that is really clear is the facts Newsweek reported were not confirmed in a government report as the magazine article alleged. There is no excuse for Newsweek's negligent decision to publish the story, but Coulter is pathetically disingenuous about her concerns for a vetted information gathering process. Certainly, Coulter displayed no similar outrage at the Bush Administration's monumental Weapons of Mass Destruction "mistake." Transforming from an apologist to executioner as quickly as she can say liberal-bias, Coulter will never be accused of being intellectually consistent.

Read Coulter's Column Here

Quote of the Day

2005-05-20T09:57:00.000-07:00

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

James Madison

Florida's "New" Self-Defense Law

2005-05-20T00:06:00.000-07:00

David Kopel provides a thorough review of Florida's new self-defense law on The Volokh Conspiracy. Kopel concludes:

As the Florida bill is introduced in other states, victims-rights opponents will probably be successful in getting newspapers and television to describe the proposal in very frightening terms. But when legislators and their aides read the actual text of the bill, many legislators will—like their Florida counterparts—conclude that bill is nothing more than some common-sense protections for crime victims.

Be weary of the analysis, Kopel is not exactly detached from the success of the Florida law. He appears to be just to the right of Alexander the Great on many issues, including gun control. On the other hand, based on Kopel's extensive resume, no one can label him a hick from the sticks.

One must wonder if Kopel's assessment is correct, what is the point of the Florida bill? If it merely codifies existing common law, why would Governor Bush expend political capital on the controversial issue? Does Florida have a track record of prosecuting crime victims using questionable self-defense?

The Supreme Court on Cruel & Unusual Punishment - A Different Question

2005-05-19T19:08:00.000-07:00

In an unusually quite case about the death penalty, CNN reports the Supreme Court denied 5-4 an application for stay of Vernon Brown's execution in Missouri. Brown was executed hours later.

Despite the recent controversy over the Supreme Court's decision in Roper v. Simmons, which held the Eighth Amendment's Cruel and Unusual Punishment Clause prohibits the execution of minors, Brown v. Missouri highlights another distinct question.

The appeal challenged Missouri's chemical protocol to carry out lethal injections. Missouri administers three different injections to carry out the execution. The first purportedly puts Brown in an unconscious state. The second chemical injected causes Brown paralysis. The third causes Brown to incur a fatal heart attack. Brown asserted the first chemical would not put him an unconscious state, thus Brown would feel excruciating pain after being administered the third and fatal chemical. Further, the paralytic second chemical prevents any observable expression by Brown indicating he was no longer unconscious. Missouri did not dispute any of the claims Brown made in the district court, which were substantially backed by credible scientific research regarding the inadequate administration of anesthesia.

It is valid to assume that if an execution is not prohibited by the Cruel and Unusual Punishment Clause, then the means of execution should be of little concern. Yet, at the very least, the Clause must draw a line at some form of tortuous pain before death. Without the Supreme Court drawing a line, the Clause is a meaningless individual right. What pain Brown felt or whether the pain of a massive heart attack is cruel and unusual punishment are difficult questions. Requiring States to perform painless executions seems an unreasonable standard to expect. But the process Missouri uses effectively prohibits any serious assessment of those questions. And more disturbing, Missouri made no attempt to defend the practice.

The Question: Does the State have an obligation to administer lethal injections in the least painful manner reasonably available?

Quote of the Day

2005-05-19T15:50:00.000-07:00

A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives.

James Madison, Letter to W. T. Barry, August 4, 1822.

The Filibuster and Illogic

2005-05-18T12:09:00.000-07:00

On Port McClellan is yet another example of the needless second-step rationalization that Republicans make in the filibuster debate. The Port references an article by Dr. Roger Pilon of the Cato institute. Pilon argues with all "logic":

That especially galls Republicans is that the filibuster, with its checkered history of blocking civil rights measures, had never been used successfully to block judicial nominations - until the last Congress. Democrats of late have made feeble efforts to deny that, but the example they most often cite, Abe Fortas in 1968, misses the point. Yes, a bipartisan filibuster of the Fortas nomination to be chief justice was begun. But when a cloture vote was taken, it was clear the nomination didn't have One has to wonder how a bipartisan filibuster is relevant. Is a filibuster necessary if it certain to be defeated with an up-and-down vote? Why is there no precedential value to the Fortas filibuster? Because after the filibuster was undergone it turned out there was no support for the nominee? Pilon sadly misses the point. There is no support after a filibuster in many cases the support of even a majority of the full Senate. So the White House withdrew the nomination to avoid an embarrassing defeat on the Senate floor. That's no precedent, therefore, for the 10 filibusters last session. All of those nominees would have been confirmed had a Senate vote been allowed, which is why Senate Democrats didn't allow one.

Filibuster generally end because the filibuster has worked. Nominees lose support after a minority filibusters, not a majority. Otherwise the filibuster is pointless. The filibuster often loses support for a nominee when public support shows support for the minority position.

It can rightfully be argued Bush's nominees deserve up-and-down votes. Let's not attempt to continue the veiled attempts at justification. It is only an attempt to limit the precedential extent of the proposed Republican action, for it has sweeping implications. Yet, everything comes with costs.

UPDATE: The Los Angeles Times provides the appropriate argument against the filibuster. The Times editorial page avoids Pilon's second-step senseless rationalization.

Same-Sex Marriage & Nebraska

2005-05-17T20:41:00.000-07:00

Atlas Blogged provides an interesting take on same-sex marriage,
Gay Marriage in Nebraska: That's Not an Ear of Corn, but too blindly follows the thinking of Justice Scalia. Atlas Blogged argues:

Essentially, what the plaintiffs [in the Nebraska gay marriage case] are getting at is the Romer v. Evans argument -- that you can't change the state constitution and make it harder for interest groups to enact political changes.

Romer was a case where CO [Colorado] voters changed their constitution to make it so no town or city could pass laws barring discrimination based on sexual orientation. The SC said CO voters couldn't do this. Romer was silly when it was decided and is still silly. The opinion seems reasonable at first glance ('oh, ok, you can't pass amendments to make it so you can bash gays, that's reasonable') but there is really no principle behind it. Do any other groups get the same protection? What groups can have constitutional amendments and which can't? I posed the following question to my Con Law professor: what happens X years from now when racism isn't a problem (ah, the future, it's so dreamy) and we want to take our discrimination laws off the books because we don't need them? We now have a precedent that says if you do this it is unconstitutional. She had no answer.

Don't come back at me with 'but the CO voters were motivated by animus and your scenario is motivated by love!' If we can't even give a legislature "intent" because of all the various motivations of the individual actors, how does one impute intent on a state full of voters?

Read Justice Scalia's dissent in Romer and tell me it doesn't make perfect sense.

If the constitutional amendment stated that 'no town or city shall make a law allowing liquor to be sold in the state of Nebraska' would liquor retailers have a Romer argument? The thought is almost laughable, but there appears to be no reason why not. They are shut out of the political process of being able to convince the legislature that liquor is a good thing. The voters were clearly acting on animus toward liquor.

The Blogged oversimplified the reasoning in Romer and follows it up with a bad analogy.

Let's begin with constitutional text and the Equal Protection Clause of the Fourteenth Amendment: "No State shall … deny to any person within its jurisdiction the equal protection of the laws." The word "protection" is useless in the Blogged's typical reading of the clause. Simply, the text could read "equal laws" and not "the equal protection of the laws." The Blogged follows the common faulty assumption that the Equal Protection Clause protects only against unequal government laws, but "protection by the government" was always considered a common, if not core, function of the state. (See, e.g., Corfield v. Coryell (1825) (note that Justice Thomas called Justice Washington's list of rights "fundamental")). Thus, when the Klu Klux Klan lynched blacks, the government was not only prohibited from facilitating the lynchings, but was required to stop the lynchings and prosecute the actors. The Clause perhaps displays a right to protection of individual liberty. Similarly, the Equal Protection Clause protects any person, not just citizens. This further indicates that like the Due Process Clause, and unlike the Privileges and Immunities Clause, the drafters of the Fourteenth Amendment sought to ensure that citizens and foreigners alike should receive Due Process and Equal Protection of the laws.

In Romer, the state of Colorado sought to preclude all government action at any level designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The reverse does not hold true. The state still permitted protection of other classes. The resulting effect is unusual, but obvious. When the city decides on local taxes and allocation of the taxes, what recourse do homosexuals have of their local government. They cannot seek their protection, but others can seek the benefits of government protection and spending allocated to all other groups. Minorities can ensure that police patrol their neighborhoods and come quickly to their stores on call. With most laws prosecutorial discretion could excuse non-prosecution of certain homosexual crimes, but not others. Protective laws regarding sexual orientation or race are generally enacted to mandate affirmative duties on the government where discretion allows discrimination. If a protective law is redundant, then there is no harm in the laws existence. If there is no law, and protection is prohibited, then what recourse do homosexuals have in their constitutional right to be protected by the government?

The Blogged nobly seeks principle in constitutional interpretation. One must ask what principled approach in constitutional interpretation the Blogged would apply to the Romer. Most likely, the Blogged would merely require the classification bear a rational relationship to a legitimate legislative end. But who is to decide a legitimate government interest or what is rational? Similarly, who is to decide what is a compelling government interest or a law narrowly tailored to meet that interest? In Grutter v. Bollinger, did the state of Michigan not decide that diversity in education was a compelling government interest? It is true that a law should not be unconstitutional simply because the minority resents the majority's choice. But if one is going to criticize the unprincipled approach taken in Romer and similar cases, one might offer an alternative approach rather than merely relying on the currently accepted but equally unprincipled approach.

As for the analogy to liquor regulation, it is beyond this post to consider whether homosexuality is a choice. If the Blogged has special knowledge on this issue, it should offer some insight. If it is not a choice, then The Madison challenges the authors to provide at what they made a conscious choice in their sexual preference. If sexual orientation is not a choice, it is unlike liquor retailors or age. One chooses to sell liquor (whether ex post facto laws should apply to liquor retailors is also a different question). Likewise, age discrimination also assumes that that age class discriminated against will at one point in their lives be the class benefited by a discriminatory law. Assuming nature prevails over nurture, applying a higher standard of judicial review for government laws discriminating against those without choice is justified. The flat analogy is beneath the Blogged.

Disclaimer: This post makes no attempt to support the Fourteenth Amendment's intent to protect homosexuals as a class. Though, the same could be said of the higher standard of review applied by the Supreme Court for gender discrimination.

The Pope & Beer?

2005-05-17T18:23:00.000-07:00

A funny and unusual picture is displayed via Port McClellan.

Perhaps the Church is "modernizing" from wine to beer.

The Senate Wants More Roads, But Does the White House?

2005-05-17T17:45:00.000-07:00

The New York Times reports the Bush White House may actually take a stand on government spending. Although the NYT reports that the $295 billion dollar transportation bill could be met with the President's first veto (Bush sought $284 billion), surely the 89-11 Senate vote indicates that the President's veto might be better spent on a divided issue.

North Korea Keeps On

2005-05-17T01:17:00.000-07:00

The Washington Post reports the United States remains in stalemate with North Korea:

U.S. national security adviser Stephen J. Hadley offered no details about what specific steps the United States would seek against North Korea if it conducted a nuclear test. But he said the Japanese government has concluded that those steps would "need to include going to the [U.N.] Security Council, and potentially sanctions."

Three rounds of talks involving the two Koreas, the United States, Japan, Russia and China aimed at dismantling the impoverished North's nuclear programs made little progress, and the process has stalled since the last meeting in June 2004.

Hadley sought to play down differences with China over how hard to press North Korea to return to the talks, insisting: "We're comfortable that we are all on the same page.

Washington has urged China, North Korea's biggest benefactor, to exert more pressure on its communist neighbor, including possibly cutting off its oil supply to the energy-starved country.

China has rebuffed the idea and publicly asserted that pressuring North Korea was the wrong tactic.