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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, June 30, 2006

Sen. Obama on Religion and Politics

And Also: The Mets are driving me crazy. They do know that is not required, the last few years notwithstanding, right? I have my doubts.

Sen. Barack Obama chastised fellow Democrats on Wednesday for failing to "acknowledge the power of faith in the lives of the American people," and said the party must compete for the support of evangelicals and other churchgoing Americans. "Not every mention of God in public is a breach to the wall of separation. Context matters," the Illinois Democrat said in remarks to a conference of Call to Renewal, a faith-based movement to overcome poverty. "It is doubtful that children reciting the Pledge of Allegiance feel oppressed or brainwashed as a consequence of muttering the phrase 'under God,'" he said. "Having voluntary student prayer groups using school property to meet should not be a threat, any more than its use by the High School Republicans should threaten Democrats."

-- AP lede on his "talk about the connection between religion and politics and perhaps offer some thoughts about how we can sort through some of the often bitter arguments that we've been seeing over the last several years"

I passed a blurb about this speech, which had a similar tone, in the national news round-up section of the NY Daily News earlier this week. It sort of rubbed me the wrong way -- another progressive sort concerned about the lack of respect of faith in the movement, which is said to be a significant problem in the search for support. Amy Sullivan over at Washington Monthly is on this bandwagon and the report in TPM Cafe criticized a couple bloggers who found the speech distasteful. The speech's honoring of faith, especially in the promotion of progressive causes, is surely acceptable. Likewise, things like this:
Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.

Nonetheless, the critics (see also, the comments to the TPMC piece) have some reason to be concerned. Sen. Obama's speech clearly was supposed to be another one of his "let's all join together" appeals akin to the one at the Democratic Convention in 2004. Shades of President Jefferson saying we all are federalists, we all are republicans, so let's cut the divisive stuff. But, in some cases, this approach is a problem when things are not so evenly divided. It is not like each side is equally divisive ... consider his remarks during the effort to filibuster Alito suggesting that was not the way to go. No, we can't always play nice. We have already touched upon shades of his "establishment" side ... given what that is these days, that should raise a bit of a red flag.

Anyway, what is the lede? The speech criticized both sides, but the lede is that even fellow Dems, Dems said to be future stars, are concerned that the party is not respectful of faith enough. The problem is in part that he left himself open to be used to further a usual meme, but it is not only the result of selective quotation. Sen. Obama spoke of a "gap" in this area that conservatives exploit.* This feeds into the lie that Republicans are for believers, Democrats for nonbelievers. And, does so with spurious examples. How many Democrats oppose "under God" in the Pledge? As to the degree that did not pressure him personally to accept a religious belief ... well his household was not exactly typical. But, the run of the mill public school child clearly will determine God is as American as apple pie, the flag, and something called a "republic."

Heck, how many "secularists" oppose "every mention of God in public"? Damn it, Barack -- even the strict believer of separation of church and state oppose OFFICIAL mentions of God. Thus, someone giving a speech -- like you -- are not covered. Likewise, sorry no, I do not think reciting the Declaration of Independence is verboten. Now, a few -- though rather few in any political capacity -- are hesistant about some sorts of religious clubs. Nonetheless, a left-right coalition passed a law upholding the right of religious clubs to meet in public high schools. Justice Brennan concurred in a ruling upholding the law. The TPM Cafe thread cited a ruling involving promotion religious doctrine in an after school program at an elementary school. The ruling was 6-3. Not quite the same thing.
Democrats, for the most part, have taken the bait. At best, we may try to avoid the conversation about religious values altogether, fearful of offending anyone and claiming that - regardless of our personal beliefs - constitutional principles tie our hands. At worst, there are some liberals who dismiss religion in the public square as inherently irrational or intolerant, insisting on a caricature of religious Americans that paints them as fanatical, or thinking that the very word "Christian" describes one's political opponents, not people of faith.

Let me be fair. The speech overall had various good things in it about the place of faith in public life, which is fine, though I am not sure if there is some pressing need that we reminded of the fact. Well, perhaps, the point is that is places a certain compelling purpose to public life that we surely do need. Fine enough. But, he threw in some dross into the mix too, a sort of acceptance of a "civil religion" that is not quite as vanilla as he implies. Likewise, Obama seems to require evenhandedness, even if it really is not called for. What is this "at best" stuff?

This is sort of the "b.s." that the blogs disliked. The other side will ignore the "some," just as the AP story highlighted only his criticism of his own party, while noting he mentioned the "religious right briefly." After all, even he said "for the most part" even if only respecting taking the calculating "bait." Various candidates, from Kerry on down, spoke of religious values that influenced their views.

Also I am really not sure how many "liberals" really "dismiss" religion "as inherently irrational or intolerant." This would be a bit difficult given that a majority of their brethren follow some sort of organized religion. They in fact are upset about certain religions that clearly are intolerant, and yes, rather irrational. I again see a certain sort of "civic religion," a favoring of a certain sort of religion, while others might be deeply conscientious and so forth, but are in some fashion not really "religious" as that word is sometimes defined.

And, as a few comments noted, is he not disrespecting many faithful followers ... those with "religion," but a more private faith? A faith that does not require reaffirmation in the public square via empty rituals that favor certain sects? As a "secularist" myself -- which is not the same thing as an atheist or some caricature that frowns when someone says "bless you" when you sneeze in public -- I also find comments like "secularists are wrong when they ask believers to leave their religion at the door before entering into the public square" a tad bit distasteful. How many actually do that? I am not telling Obama not to express his faith. So, I wish he would not tell others to express theirs in a certain fashion.

After all, he seems to define "religion" rather broadly, in such a way that can not be "left at the door." He speaks of those who "want a sense of purpose, a narrative arc to their lives." But, then confusion -- "motivated by faith" is not quite the same thing as "religious language." But, for some, religious language is expressed differently -- thus, an environmentalist might see the earth itself as something to honor -- a form of nature religion. Such an individual might even speak in such a way that annoys certain religious believers. For instance, Obama argues it is "a practical absurdity" not to allow "personal morality" to be inserted into policy debates. Sure ... but both sides do it, even if too often "values" means "certain values." A troubling code word.

He ends with a nice sentiment of respect for other person's beliefs. But, the story he ends on was a bit too cute. A primary supporter wrote to him saying that there was something on his website that troubled him. It was so troubling that it might lead him not to vote for Obama in the general election. What was this terrible thing? "Boilerplate" language mentioning "right-wing ideologues who want to take away a woman's right to choose." Obama replaced that with "clear but simple terms my pro-choice position." And, he went home and prayed that "we can live with one another in a way that reconciles the beliefs of each with the good of all."

One hopes so. But, the quote was not wrong, and I do wonder if he avoids similar strong pithy language at all times, including in campaign ads and so forth. I am all for a full discussion of views, especially on sensitive subjects that touch the religious beliefs of voters, in some cases possibly leading to them voting for a candidate that at the end of the day really does not match his or her values as a whole.

Still, when one says "if you truly believe that those who oppose abortion are all ideologues driven by perverse desires to inflict suffering on women, then you, in my judgment, are not fair-minded," you can honestly say: I did not say that, sir or madam. First, "oppose" can very well mean personal opposition, not of the level that warrants criminalization. Second, you are putting words in my mouth with terms like "perverse desires." And, third, the leaders of the Republican Party are right-wing ideologues. Jesus was rather blunt too, he even might be excused of hyperbole sometimes.

But, that is not quite his way, I guess. "Fair" enough. He takes it too far sometimes though. At the very least, I question some of his language here.


* "Conservative leaders have been all too happy to exploit this gap, consistently reminding evangelical Christians that Democrats disrespect their values and dislike their Church, while suggesting to the rest of the country that religious Americans care only about issues like abortion and gay marriage; school prayer and intelligent design."

Note how he says that they "remind" about disrespect. This is poor use of language for a wordsmith. They "claim" that sure enough. But, it is at most a half-truth. Around a quarter of the evangelicals are left-leaning. Many who are not are Democrats. And, quite a few Democrats, thank you, share many values with them generally. In fact, others have notes "values voters" really did not effect the '04 Election anywhere as much as some claim.

It is an overgeneralization to speak of a whole party "disrespecting" and "disliking" a particular Church -- a word that is actually rather inexact given evangelicalism is not any one "church." Dare I say separation of church and state guards against official controversies arising from such sloppiness? Related sloppiness too often implies "values" really means "conservative Christian values."

Hamdan: Possibilities and Limitations

And Also: After the Mets had a fantastic West Coast trip, they had a mediocre home stand, and good series vs. Toronto. Not quite the case against the juggernaut (over ten game winning streak) that is now the Red Sox, who beat them in basically all shades of the game, including luck. First three game losing streak/swept series, and they looked rather bad -- Pedro worse of all -- in so doing. Back-end of rotation vs. Yanks. They need to play better this time.

The dissenters say that today's decision would "sorely hamper the President's ability to confront and defeat a new and deadly enemy." They suggest that it undermines our Nation's ability to "preven[t] future attacks" of the grievous sort that we have already suffered. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld. Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine through democratic means how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

- Justice Breyer

Three justices joined Breyer in this Cliff Notes version of the Hamdan ruling, which cynics might argue did not do THAT much. Congress could give the President the power, even if this overrules Geneva Conventions, just as the habeas stripping law might in cases comparable to this one lead to denial of judicial review. [Update: On the application of this law to Hamdan, I seem to have won the battle of the comments here. Per the comment on this blog, I should clarify: the opinion secured habeas rights to those who filed claims (but see F14) before the stripping law passed. Thus, I meant those that had claims after that. Let's say someone mistreated today and not brought in front of a commission.] The ruling deals with military commissions, not detention itself. Only a small part of detainees are scheduled for such commissions. And, who knows if the President will actually take the ruling seriously:
First, your return to shore was not part of our negotiations nor our agreement, so I must do nothin'. And secondly, you must be a pirate for the Pirate's Code to apply, and you're not. And thirdly, the Code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

- Captain Barbosa, Pirates of the Caribbean

But, as with Brown v. Bd., the law is there; now we need people to enforce it. It is again an iffy thing. Since the ruling in effect is 5-4 (Roberts did not vote, but voted for the government below), it underlines how perilous things truly are respecting executive power. Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the Court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Justice Scalia noted "the audacity" of the majority respecting protecting treaty rights and congressional power -- in effect, the majority (as noted by Jack Balkin) frowned upon Congress allowing the President to take power via their inaction. Or, rather, such inaction does not rebut protections already on the books. The Court did find said protections are in place by congressional rules of military justice -- which can change -- but its reaffirmation of respect for congressional power is significant. As noted by Justice Kennedy:
Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review.

In an earlier post, I referenced that Justice Breyer recently joined with the other liberals to firmly reaffirm the importance of our treaty obligations and recognition of international law ... in a dissenting opinion. Such law did not necessarily trump domestic law, for instance, international tribunals might interpret it in ways that clash with Supreme Court determinations of what the law means. But, unless otherwise clearly the case, they were the "law of the land." Art. VI. Here a majority said as much, Geneva Conventions now clearly part of our "rules of war."

Thus, the ruling had two major strands: unless there was some special circumstance, clearly not the case here, traditional rules of military tribunals had to be followed. No "special" rules purely on the President's commander-in-chief authority. Second, including members of Al Qaeda, certain basic rules of the Geneva Convention are currently mandated by law. Kennedy did not join the discussion on the problems with the "crimes" (conspiracy), focused on the structure of the military commission in general.*

Since "self-executing" personal treaty rights are not really the issue here (cf. the Breyer dissent), this also turns out to be a separation of powers deal -- congressional rules plus the care given when dealing with these special "executive" courts. But, separation of powers furthers personal liberty as well. All the same, the habeas stripping measure and so forth underlines the limitations of this approach. As BTC News notes:
What the ruling does do is force the administration's hand a bit: they're presented with the options of asking Congress to legislate human rights abuses, or of ignoring the Supreme Court, or of torturing existing laws into providing excuses for violating them other than those the court obviated, or some combination thereof.

I would go further -- if you revoke Geneva Conventions, which the U.S. signed, you do so by a new treaty passed via a supermajority vote. Second, "due process" applies to "persons," including those in front of military tribunals of this sort. The Geneva Conventions seems a good place to look. Finally, Congress has a responsiblity as representatives of the alleged leader of free nations to have a "decent respect for mankind," which includes following the minimum international law securities at stake here.

All the same, the ruling again sets limits on the "unitary executive" theory, one with various clear applications. It's bottom line, especially since Hamdan-type defendants might not even have a right to habeas from now on (though other avenues possibly can be raised), might be somewhat narrow. The principles, however, not quite so much. This is so even if one court opinion can only do so much ... again even Brown alone was only one step.

The need for congressional action, advocates to push for rights the public was in some fashion was willing to accept (even vs. minority opposition), courts willing to accept them (though Roberts is no Warren, though Kennedy might see himself as a Jackson), and so forth is evident. But, such rulings help ... the rule of law still means something these days. As someone once wrote about 230 years ago, "independent states may of right" do certain things. "The Constitution places its faith in those democratic means" that do them.

Including, but not limited to, judicial review.


* "To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them." Differences include:
  • review is not automatic if the defendant's sentence is under 10 years

  • abandons the detailed Military Rules of Evidence

  • hearsay and other forms of evidence generally prohibited on grounds of unreliability

  • Thursday, June 29, 2006

    SWIFTly On The Road To Ruin

    And Also: Katherine Harris, who really should understand her limitations and ride her nice safe little House seat as long as she can, has sadly (for Republicans) decided to run against Sen. Nelson (D-FL), moderate Democrat whose votes disappoint progressives in various cases. In other words, a tough competitor even for a credible candidate. She is a favorite target for Air America types, but I have yet to see a reference to her book. Center of The Storm: Principled Leadership in Times of Crisis. Such a missed opportunity.

    The SWIFT story is largely about the President and his cronies smearing the NYT as a threat to our national security for writing an article that really has no new substantive details. The proper way to deal with a non-threat is to focus on it, so a story that might be read by a few people would be a week or more story with even international attention.

    As to the latter, it has received negative focus in Western Europe, which sort of has laws that protects the information at hand. The Bush Administration, and even our country at large (thanks George!), isn't very popular anyway. It also embarrasses the governments, since some at least probably knew what was going on, but did so on the down-low given those darn tricky privacy laws that makes the sharing of the information legally troubling.

    So, it's a total win win, right? This is sort of why the fact the program on its merits might actually be acceptable (these people do not deserve any benefit of the doubt) is on some level beside the point. This is so because the Bushies made it into some sort of cynical political tool. In the long run, is not trust in government here and abroad more important than any one program?

    You can scream to your spouse about how you are in the right as much as you want, but if you piss him/her off, watch out! They will at some point so distrust you that they won't believe you when you compliment them, since it will seem like there is some devious reason behind your comments. Such is sort of the point here, especially when bashing an article that in fact in some cases put your administration in a good light.

    Finally, it underlines a continual sentiment of mine -- keeping things in perspective. Thus, when balancing privacy and security, you have to know that you are balancing. It may not be a total zero sum game, but it definitely is something of a cost/benefit deal. We cannot just set up costs and claim they are totally appropriate without dealing with what we are trading away.

    The trade might be worthwhile, but how do we know (and compensate, when need be) without carefully looking at the issue? Thus, I spoke in the past of costs to additional loss of privacy at airports, including those profiling programs for which we are not supposed to quite understand. By even bringing up the point, some thought I was ridiculous, since overall the costs are worth it.

    In various cases, I am sure they are. But, are we not to address the costs at all, costs that in certain cases are actually not necessary, or might even be counterproductive? Costs that warrant some due care, care that will not be supplied if we are not kept abreast of them? Such was the core value of the NYT article in my view. Certain sorts, however, look at any possible criticism or even doubt of the "good guys" bona fides as a threat. How dare they! This is the mind-set of people we really should not wish to lead us.

    But, openness is a problem, even if the alternative causes even conservative leaning sorts some concern. Allowing open and honest debate suggests the opposition just might be partially right, which requires a level of evenhandedness that these people find uncomfortable. On this point as well, the article is quite useful.

    See here for a comparable discussion on the whole signing statements issue.

    Redistricting and Republicanism

    And Also: Digby suggests that Rush's latest embarrassment is an appropriate target because of the hypocrisy involved, namely a promoter of social conservatives bending the rules, so concerned with privacy, and being rather sexually laissez faire. You know sort of like blondie possibly violating election rules, which she would say only idiots would not understand. Fair enough, but it seems like some rather just laugh at him.

    The Texas election law case has the most bite in that Tom DeLay was intimately involved in the whole matter, knowing that control of state legislatures leads to de facto heightened control of federal re-districting. Congress has the power pursuant to Art. I, sec. 4 to "make or alter" regulations respecting the elections of members of its own body, but generally the states are given broad discretion respecting "time, place and manner" rules.

    This includes dividing states into congressional districts pursuant to lines drawn by state legislatures or (in a few cases) special bodies set up for that purpose. Modern computer models provide a means to micromanage this task while modern political practices only encourage an "anything to get ahead" policy, including mid-decade redistricting that was basically unheard of in the 20th Century. Close party control furthers the temptation since a little nudge can mean a lot.

    The Supreme Court has been very hesitant to target "political gerrymandering," namely dividing political lines basically for the gain of a particular political party. Four justices firmly have argued that this practice violates equal protection by wrongly burdening certain groups, which also has clear associational harms as well. Thus, it is a First and Fourteenth Amendment problem.

    Justice Kennedy previously voiced some sympathy, especially for the former, but basically is unsure of how to go about setting forth guidelines. So, technically such a claim is possible, just not likely to be win. In this very case, Kennedy's plurality accepted politics played a role ... just not enough to be unreasonable, except in a narrow fashion which harmed the voting rights of a particular racial group. Thus, though Roberts/Alito again (as with the campaign finance case) decided not to require firm lines yet, the leaning is clear.*

    An amicus brief [h/t] argued for a somewhat different emphasis -- voting rights. The Constitution gives "the People" the power to choose members of the House (Art. I, sec. 2), while state power over only "time, place and manner" of elections. Taking various dicta (?) into consideration, the brief argues such power does not include the ability "to design congressional districts for the purpose and effect of destroying the electoral accountability between representatives and citizens that is essential to representative democracy."

    And, this is just what partisan gerrymandering (sometimes with each side making a devil's wager to share the spoils) does these days. This connects to the pro-democracy goals of the First Amendment -- which honors speech, association, and petition rights that are at their core during elections. If the elections are "hollow rituals," such rights are equally hollow.* Sounds good and all, but Justice Kennedy did not reference the argument, and in fact suggests states have pretty broad powers here.

    Thus, the brief sees the matter as a "structural" one that furthers republican principles. After all, the bare text ("the people" still vote, "manner" is a rather open-ended term) only takes one so far. The argument calls to mind a comparable law review article that approaches things in a similar fashion, tossing in security of a republican form of government set forth in Art. IV, the so-called "Guarantee Clause": "The United States shall guarantee to every State in this Union a Republican Form of Government ..."

    This has long been deemed a "political question," so it is not surprising that the justices did not take-up the election clauses approach suggested here, even if a few opinions in recent years did suggest Art. IV should be considered a "justiciable" question in some fashion. The article took a half-way approach: the courts would only decide the current practice was illegitimate, tossing it to Congress for relief. Likewise, perhaps, if an independent commission set districts, it would be a sign of good faith.

    The brief argued that mid-decade redistricting would be in most cases a sign of bad faith. The temptation for political gerrymandering and violation of the people's rights as discussed would be too great -- evidence is shown to back this up. The dissents basically argue that in this case that the practice can be used to prove illegitimate intent, especially since the original plan was fully appropriate, perhaps even slightly pro-Republican.

    Overall, here, there were various reasons to be suspicious. The majority is not as supportive, especially given the problems with so determining. The brief goes a step further: it sets forth a clear statement sort of rule, a bit of judicial doctrine, which it deems a pragmatic necessity. It surely at least is quite arguably a policy one -- even if the case is not clear enough for judicial relief, political/legislative relief is justified.

    But, self-dealing legislators are in no rush to bite the hand that feeds them -- as noted, in some cases, both parties benefit. Justice Stevens' dissent cited history that pointed to how Texas Democrats in the past illegitimately benefited from the practice. It just argued the "solution" (payback?) was not constitutionally valid. So, again, this is in no way some sort of anti-Republican screed.

    Perhaps, hopeless as it seems, the solution cannot at this time be achieved in the courts. The current Supreme Court if anything wants to do less, at least in some areas. So it goes -- the brief provides a different approach to the problem, a "republican" one that looks toward the sanctity of the election system as a whole, not individual rights per se.

    This seems like a sound approach given the breadth of the matter, even if the Supremes do not quite want to take up the mantle. It also possibly has a better shot at success -- the Court here only granted relief respecting a violating of the voting rights of Latinos, who cross party lines, but it still seems to be a special interest group matter. Political gerrymandering overall pursuant to the dissents' strategy disfavors one party or the other -- again, a special interest flavor. The brief, however, looks to the election regime as a whole. The people as a whole. [Justice Breyer might sign on here; see his book Active Liberty, which in part looks structurally to promote democracy.] And, in certain states, this has received some traction, such as calls for independent election commissions.

    Basic republican principles are threatened these days in various ways. Reality dictates that debates often will suggest it is just a battle of group power, Democrats, e.g., not really caring about executive overreaching -- only this President's actions. Such cynicism is overblown ... neutral principles are at stake too. This brief provides a useful approach in that respect as well. Rejection invites just what some claim: tit for tat Democratic responses.

    Darn if that would at the end of the day truly be depressing. After all, currently, we realize the limits of party control. The Republicans, once losing power, will once again win. But, such a dog eat dog world, apparently is to be considered quite ideal. So some think.


    * Justice Stevens' discussion of the problems of excessively "safe seats" (footnote 10) underlines the point. "One justification for majority rule is that elected officials will generally 'take the minority’s interests into account,' in part because the majority recognizes that preferences shift and today’s minority could be tomorrow’s majority."

    Such seats, especially if blatantly formed to favor a political party, points to a different reality. Self-dealing will always occur, but there should be limits. Thus, the brief notes even the "Solid South" days of the early 1900s had more incumbent turn around then these days.

    He then underlines what went on here. The original districting plan was somewhat Republican friendly, if any party was favored (so said the state's own expert), but ticket splitting and so forth (Texas Democrats can be rather conservative) allowed Democrats to win a few "Republican" seats. This could not stand, so a more blatant party protection racket system was formulated via mid-decade redistricting, made more blatant because a plan was already in place.

    Wednesday, June 28, 2006

    Name Game

    Supreme Court Watch: Justice Stevens' dissent respecting a prison regulation limiting 1A rights is another in a line of his respect prisoner dignity. Justice Breyer does a decent job summarizing the dissenting p.o.v. on the matter of why mid-decade districting, even if not always bad, is suspicious when used for clearly political reasons. See also, his support of clear respect of the treaty right for foreigners to consult their governments, even if state criminal rules might be affected. The majority left the door open somewhat, but in a weak-willed matter that again (with the no-knock ruling) looked down on the exclusionary rule in general. Also, the libs split in two cases.

    Names are powerful things. After creation, the first important scene in the Bible perhaps is Adam naming the various animals ... the book places a lot of importance to names. Over and over again we are informed that such and such was named for such and such reason. Sometimes, the names are puns. For instance, "Adam" means earth ... or dust shall we say ... dust to dust and all that. "Joseph" basically means "God adds," and Rachel in Genesis gave him that name since finally God blessed her with a son (Leah, her sister and Jacob's other wife, had a bunch of them). I was given that name because of my maternal grandfather, who I never met, which is a shame -- my mom loved him as much as she was impressed with him -- including his intelligence.

    Parents in this country are a bit less directly concerned with the meanings of names, less blatant with naming children things as "Faith" or whatnot, though obviously some do. Anyway, such names sound better when they are from other languages, even if they would be a bit mundane if given by natives of those tongues. Still, some names are both nice sounding and have meaning -- one of my nieces is named "Tara Ann," which means "tower of grace" (it also sounds Irish, and she is one fourth so). Others, as noted, are for favorite people and such -- two of my siblings are named after my parents, one who was named for his dad. And, middle names and so forth have similar purposes, sometimes to fit in the last name of the mother.

    And, of course, names have various emotional nuances. There generally are various shades of the names, depending on the situation, so "Joe" is used various times, "Joseph" others, and "Joey" (not a big fan) in more personal situations. If names are used inappropriately, even as a matter of tone, there can be problems -- even violent in nature. Respect also is quite important, including "Mr.," "Ms," and so forth. This is a major concern, for instance, when certain disfavored groups are involved. Thus, a simple "Mr. X" for blacks was quite important in the civil rights era, when general practice often was simply to address them by their first name, or even by a more infantile "auntie" and so forth. Though false respect can annoy (required "sir" at the store, when you know they don't give a ****), it can be quite important even there.

    This whole matter came to mind when I caught a bit of Barabbas on T.V. yesterday, the thief/brigand who is said to have been pardoned in the place of Jesus, who Pilate offered to the crowd. [This led Matthew to quote them saying that they were willing to have Jesus' blood on their consciences, something that to some apparently doomed not only their descendants but all future Jews as well ... which is ridiculous, putting aside the fact that the "crowd" was in no way necessarily representative of general Jewish sentiment.] This "tradition" has not been found mentioned elsewhere, including in the writings of Josephus, and thus some question the authenticity of the whole matter.

    But, another matter somewhat less focused upon also arises ... what does his name mean? Again, names are quite important in the Bible, including the New Testament. Thus, Simon is named "Peter," which means "rock" for he would be foundation of the Church. And, that is when it gets interesting -- the name translates as "son of the father," which is of course also what Jesus is. In fact, Jesus favored calling God "Abba," which has a personal flavor to it, almost like he is saying "daddy." Now, according to the interesting Wikipedia entry, it also was a personal name -- so the man could actually have been "son of Abba."

    Still, it seems an awful coincidence. In fact, some early translations had him named "Jesus Barabbas." One early scribe seems to have purposely withheld using that name because of possible confusion or not wanting the thief to have the same name as Jesus (a takeoff of "Joshua," or "God saves," a common name). This meant Pilate asked the crowd to choose between Jesus, who was known as son of the father, or Jesus, "son of the father." [If I was him, I might want them to pardon a simple thief or even a more dangerous run of the mill brigand than a possible troublemaker as big as Jesus was said to be.] It is unclear if "Jesus" was in the original, so this tidbit is of unclear relevance. Still, the very play off Jesus' title of sorts is pretty notable. Something more might be going on there that meets the eye.

    The whole somewhat dubious pardon practice, which sort of sounds like a good crowd control policy (though one doubts they had total freedom of choice), sounds like it was added for effect. Who knows, but the gospels gave special significance to most aspects of Jesus' final hours, various said to be prophesized in the scriptures though often it seems a stretch.

    Matthew went out of his way to put the Jewish authorities in a bad light, but this particular event was a set part of the passion drama. All the same, each gospel in its fashion looked at the Jews in a bad light. The timing of publication mattered too -- this was after the Jewish Wars as well as the overall failure of local Jewish Christians to convince their fellows to convert to the new faith. If Barabbas was a brigand, a Zealot, it would be of additional meaning. The Jews chose that path and look at what that brought them.

    Well, the Bible is filled with interesting nuggets like that. As to the movie, only caught some of it, but pretty good. Yes, that is Jack Palance as the heavy. The gladiator battle (Palance in a chariot, various sacrificial lamb sorts with a wooden javelin ... the others just widely tossed it right away, Barabbas used a bit of strategy) scene was a particular highlight. The mine scenes reminded one of Joshua in the Ten Commandments. The Christians were a tad stereotypical though ... vanilla background noise. Good lead.

    btw Rosie Perez's documentary on Puerto Rico and her own personal heritage was pretty good. It should be on IFC again sometime in July or so.


    The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

    So says Barnette, which particularly involves active coercion (pledge ceremony), but has principles gloriously repeated for over fifty years that apply far beyond that more narrow subject. A member of Congress opposing the flag amendment could do worse than read it into the congressional record, including its notice about how inadequately American history is taught in this country. As with most great opinions, its principles are only imperfectly applied, as is the case here. Also, sadly or not, our freedoms surely do partly depend on election results.

    The quick Reuters article on the defeat of the amendment warrants extended comment.
    WASHINGTON (Reuters) - The U.S. Senate on Tuesday defeated by one vote an effort to change the Constitution to let Congress outlaw flag burning, rejecting a politically charged issue backed by conservatives for the second time in a month. The 66 to 34 vote fell just short of the two-thirds needed to pass a constitutional amendment and send it on to the states for ratification. The House approved the amendment last year.

    Again, "flag burning" is inaccurate, since the amendment was to be broader than that ... it covered all actions deemed to be desecration. Also, burning might be a means to dispose of old flags, if done in a "proper" fashion. The vote breakdown can be found here. Usual Democratic suspects: the gentlelady from Louisiana, the Nelsons, and Baucus. More sad: Sen. Feinstein and Menendez (N.J., newbie/election race). Principled Republicans: Sen. Bennett, Chafee (tough race, liberal state), and McConnell (he stood on principle, suggesting his opposition to campaign finance limits on 1A grounds is not just cynical). No, a certain senator from PA was not among the "nays."
    The Senate earlier this month voted down a constitutional ban on same-sex marriage. Backers, including all but three Republicans, said a constitutional amendment was the only way to overturn a 5-4 Supreme Court ruling in 1989 that struck down flag-protection laws in 48 states and the District of Columbia.

    So, the anti-freedom breakdown had a clear party flavor, but sadly about a fourth of the Democratic caucus joined in. Flag burning was deemed more dangerous than same sex marriage. There is something a bit bizarre about that, especially since the latter actually has real life effects. But, so does the former, in the sense of negative political backlash. Still, do those darn swing votes and so forth really care more about flag burning? Homosexuality actually pops its head, if only when some celebrity (you know, like Mary Cheney) is in the news, now and again. When does "dishonoring" the flag unless some pol or interest group actually makes an issue of it?
    Democrats, even those who supported the flag-burning amendment, said Republicans were pandering to conservative voters ahead of November's elections when they should have been tackling more substantive problems.

    But, they do, so a few Dems find it necessary to cover their asses. They are "forced" to do something that they rather not do, like be on record supporting an amendment to the U.S. Constitution for such a stupid reason. That is, they have no guts, or not enough, to stand up and explain what the flag truly stands for. Senators Bennett and McConnell manage to do so from the states of Utah and Kentucky. Sure, maybe they are more comfortably in safe seats, but sometimes you have to draw a line in the sand. Fundamental freedoms should not be used as cheap election tools.

    Thus, we should not be too comforted in the fact that there was not enough votes to get the amendment out of the Senate. There is a certain act of principle here. Furthermore, it is not like these people -- including the Democrats -- do not various times vote against freedom in other more tangible ways. The promotion of the amendment as well as its support is but a sign of a larger problem. This includes a sad attempt to split the baby, one that Clinton's baby really, though Sen. Durbin (sigh) brought it to the floor, and Kerry voted for it as well.

    It went down 66-34, a simple piece of legislation to criminalize flag desecration, Clinton noting: "Fortunately, we have an opportunity to protect our flag in a bipartisan and constitutional way." She must have been pleased that the NYT report noted her "split" with the "liberals" on the matter, as if Kerry and Durbin are not normally so considered. The article quoted a Democratic consultant saying such "pragmatism" wins elections. Arianna Huffington (certain "editorial boards" apparently agreeing) added:
    "It seems in line with her stance on so many issues - trying to strike right in the middle and triangulate, by not supporting the amendment because that would upset the base too much and at the same time supporting a legislative proposal that will appeal to the center," she said of Mrs. Clinton. "It's a truly tragic way of leading."

    Sure enough. The bill is phony -- it is clearly unconstitutional. Sen. Lieberman, shocker, is for it ... you know since: "If someone desecrated a flag, you'd like to strangle them." Sure ... loads have reached the point that they want to strangle him, that's for sure. One of the Republican dissenters (Bennett) is also on record for it. The measure allows various Democratic opponents of the amendment to tell people they really do want laws to make people who "desecrate" flags to be criminals.*

    No, they don't want to prosecute (or impeach ... or censure) members of the Bush Administration. Sad commentary of current politics. The supposed way to win is "pragmatism," which takes some "middle way," which manages to violate fundamental principles, but just less harshly than the current path. You know, supporting criminal wars, but in a more "moderate" fashion. The blood flows more moderately, Iraqis suffer more "moderately," and so forth. And, we can despise our leaders ... moderately. You know, as compared to Bush and company. So, it's a win win, right?

    Well, again, she supported further expanding protections to our privacy, which was all to the good [seriously ... as was her opposition to the polticization of medicine respecting the morning after pill] ... I guess we can still privately improperly criticize the government. No need to upset the independent senator from Connecticut by doing such things out in the open and all.


    * The official record only notes the vote is "To provide a complete substitute" via a Durbin amendment to the amendment measure. The NYT article, however, noted the measure was similar to the one proposed by Clinton earlier. For discussion of that measure, and why it in effect clinched the writer not voting for her in a primary, see here.

    Tuesday, June 27, 2006

    True Flag Desecration

    And Also: It's fun and all to make fun of the guy, but you know something is pretty trivial and even petty when Atrios thinks so. Now, Rush is under a plea agreement (though the spin is not to call it that, since that would imply he did something wrong), so bending rules involving prescribed drugs is actually worthy of note. But, immature joke possibilities aside, do we really want to go there? The authorities are not only going to go after people we don't like. As to the Bush Administration: anti-freedom hypocrites. What else is new? The latter really bothers me, if I actually take them seriously any more.

    National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement. ... It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

    -- West Virginia State Board of Education v. Barnette

    There are only a small number of things that constitutionally require a supermajority vote in Congress though in practice many things do with unlimited debate rules in the Senate and so forth. They generally are not too much trouble. For instance, removal from office (after impeachment by House majority vote) is basically obsolete, since it is considered in bad form. Treaties also require a supermajority vote, but other than the fact that they now are deemed optional affairs (don't let the Supremacy Clause confuse you), executive agreements and other aspects of the "unitary executive" makes them almost as trivial as declaring war. And, expulsion from Congress also is on the list, but CYA rules apply here.

    And, then there is the proposal of amendments. There have been some amendments that were never ratified by the states ... amendment to the founding document deemed such a major change that an additional supermajority requirement was tossed in. For instance, the original First Amendment (the 27A originally the 2A) setting up limits to the number of representatives in Congress was not ratified. Many more were "proposed" only by too few to be sent to the states for ratification. Generally speaking, this was because they were pretty lame.
    The Congress shall have the power to prohibit the physical desecration of the flag of the United States.

    For instance, there was the anti-gay marriage protection act. This measure was to protect homophobia against deluded state legislatures, referenda, and court rulings (and corresponding federal possibilities) who did not realize that religions and people in general who accept same sex marriage are deluded souls that threaten the institution of marriage much more than the multi-divorced who supported the amendment. Another that almost makes such an amendment seem sensible is one that sets forth the authority to protect against abuse of the flag. One that easily got out of the House (thus quite a few Dems voted for it) and is only a few votes (one vote?) shy in the Senate (thus, too many Dems voted for it).

    [Some of this discussion underlines the importance in remembering this is not just a flag "burning" amendment, but one that is meant to protect it from improper treatment overall. After all, there is a formal way to dispose of old flags, which might include some sort of burning. Used flags are not buried whole, or something. The true breadth of the amendment as well as its special sanction flavor makes is even worse than one that just targted "unauthorized" (so to speak) flag burning.]

    As with the former amendment, this requires specification of terms. For instance, the few who actually burn a flag in protest might very well argue that they really love this country, or rather what this country should stand for. Burning the flag is just a protest against a government they believe are the ones dishonoring "for which it stands." Likewise, many practices that one guesses would not be open to liability are viewed by many to be desecration. Given free speech and such, the amendment itself seems to dishonor the flag. But, various clothing emblazoned with the flag, flags left open to the elements on one's property, flag tattoos, and so forth might be deemed dishonoring such a "sacred" symbol.

    I use that word advisedly -- there is a certain sacred cow flavor here, an idea that disgracing the flag is a type of blasphemy. Thus, yet another establishment of religion is being offered to the public. This is totally appropriate in a sense given that an exception to the First Amendment is argued to be necessary, and it often is hard to truly separate the various guarantees.

    Therefore, a certain means of protest (petitioning government), sort of speech/expression, and matter of conscience are all to be deemed verboten. Oh, and it really is the Supreme Court's fault (so says Sen. Hatch, such a sanctimonious asshole), since it held 5-4 (a shame in itself, especially Justice Stevens' vote, though I doubt he supports the amendment) that flag descreation laws are unconstitutional. Darn Justice Scalia ... darn activist judge! As you know, Texas v. Johnson was a direct cause of Bush v. Gore, give them a little power, there is no stopping point.

    Catholics accept a version of the Ten Commandments that does not include the barrier to graven images, which is a good thing given the value they supply to icons and statues. Still, many Protestants do list the Decalogue to include that Second Commandment, tossing all the covets into one catchall amendment. Jehovah Witnesses, though admittedly loonies and all, take this so seriously that they do not want to "bow down" to the flag. Thus, mandatory pledge laws are unconstitutional, another one of those darn activist deals. Again, certain religious beliefs really are silly, and do not warrant are respect. This helps explain why we need an amendment to protect our sacred flag, an icon that not only represents an idea, but is important in itself. Now, Jews ridiculed pagans who bowed down to idols, Muslims keep mosques free of such things as well.

    We however apparently are to be different. We need a certain icon of sorts that is not to be defamed in any fashion, since the idea behind it is not the only important thing, but the physical entity is as well. Once it was said that nothing is more powerful than an idea whose time has come, and we are said to be a nation of laws, not men. The most important things, in other words, tend to have a certain intangible quality.

    Thus, it seems ridiculous to me to be so concerned with those who defame a piece of cloth (does a picture of a flag count too?) ... in fact, as Justice Scalia noted, does not the burning emphasize the importance of the symbol? The few would not burn the thing if it was so trivial and demeaned these days. The flag is strong enough to survive a few losers who feel a need to burn it. [Below quote via NYT.]
    "This objectionable expression is obscene, it is painful, it is unpatriotic," said Senator Daniel Inouye, Democrat of Hawaii and winner of the Medal of Honor for his service in World War II. "But I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts."

    All the same, I do not really feel a need to say "I hate when they do that, but defend their right to do so," though respect the need of politicians to do so. Burning a flag is simply way down there in respect to things one can do that I find reprehensible. Hypocrites warrant much more scorn than attention getters who find a need to be "outrageous." Now, respecting icons deemed sacred is appropriate. But, respect is not really something that you should mandate by law.

    So, we respect equality, but don't mandate that its symbols (e.g., a copy of the Constitution) be "respected" by limiting freedom of expression in the process. In fact, that sort of is the point -- expression is protected, even when it goes against the core of what we stand for. Are we to allow hate filled rants left and right, but amend the Constitution to protect the physical integrity of the flag? No, we should aim to protect its principles.

    Instead, as our citizens die apparently to protect our national interests and to promote freedom, a majority of the U.S. Congress, including a sizable amount of Democrats, wants to amend our foundational document to secure against something that nearly never even occurs. Consider that even the seminal case of Texas v. Johnson involved a stolen flag ... even the few instances sometimes involve neutral breaches of the law. But, this is just a side issue -- the core issue is the ultimate hypocrisy, the ultimate trivialization of allegedly protecting a piece of cloth while in the process truly violating what it stands for. I wonder why they did not have the vote on Flag Day (the Barnette case, protecting the right not to pledge allegiance to it was handed down 6/14/43) ... but perhaps 7/4 is a better day to disgrace the principles of our nation.

    This is too fundamental of a violation of principle to accept even as an unfortunate bone to toss to the public, an ultimate disrespect that cynically allows the public to accept a violation of principles it should hold dear. Truly representing our interests is something both parties have not been doing a lot of lately. For instance, I repeatedly noted that Congress has an obligation to fully consider the matter before allowing the invasion of Iraq in 2003. Likewise, its constitutional responsibilities includes handing down rules respecting treatment of detainees and military regulations overall. But, clearly, a majority does not truly honor the Constitution, wanting to amend it to make some sort of cynical point ... if they actually believe in this crap (some do), it is worse ... so that is really a silly thing to be expect.

    So, if you want to be a rebel, no need to do things like smoking, putting up a Confederate flag or whatnot ... just burn a flag. This will show you are a big bad ass, and even more worthy of reprobation than the NYT. Tell you what ... just click this link ... print it out, and set it aflame. Do it while you have a chance ... as with slavery, it will be one of the few personal acts [most provisions respect state action] that the Constitution will directly target as truly verboten. Or, so a majority of your national representatives, including many Democrats, wish will happen. Sen. Clinton not one of them ... she just wants simple legislation, a junior varsity version of tyranny.

    Tyranny ... an idea whose time has come?

    Monday, June 26, 2006

    Supreme Court Watch

    There were five Supreme Court opinions handed down today as well as an important grant respecting the responsibility of the Bush Administration to carry out greenhouse gases regulations. Given the so-called Chevron doctrine and general flexibility given to executing even possibly open to debate laws, this is not too promising. On the subject: Digby links up to a review piece by Dr. James Hansen, reminding how Bushie political appointees tried to silence his science based fears re global warming. Elsewhere, we learn about another aspect of this "antiscientific administration" respecting Iraq intel. Uncomfortable (inconvenient?) "objective truth" is rejected in both cases.

    Two rulings stand out. Kansas v. Marsh (5-4) held: "Kansas' capital sentencing statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, is constitutional." [Findlaw summary, Scotusblog has further discussion of these cases as well.] Justice Scalia concurred to parry with Justice Stevens (a common judicial fencing partner) and to a lesser degree Souter. Justice Souter wrote the main dissent, adding a lot of verbiage to explain that in death penalty cases ties should generally go to the defendant. He also references a broader point:
    While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.

    Randall v. Sorrell: "A decision by a court of appeals holding that a Vermont campaign finance statute's contribution limits were constitutional and that its expenditure limits may be constitutional is reversed and the matter remanded for further proceedings." This is far from surprising, especially given the low limits involved, but the breakdown was pretty interesting. Justice Breyer (with Roberts and Alito, the latter not completely joining in) wrote the plurality ... Breyer? Yes ... it is an example (e.g., school drug testing and funding of religious schools) where he has some a centrist position, doing his pragmatic thing. Those who label him as some knee-jerk liberal should check their own reflexes. Sometimes, the other side is guilty of too easy applying labels, but the sin works both ways.*

    Justice Kennedy concurred separately, generally dubious about current campaign finance jurisprudence, believing that it is both hard to apply and probably too restrictive of speech/association interests. I am with him on that ... Thomas/Scalia bluntly dissented from current doctrine, arguing Buckley v. Valeo is too sympathetic to regulation. As to the dissents ... Justice Stevens goes the other way -- he would allow expenditure limits, which current doctrine holds are not allowed. Such a limit on how much one can spend was now partly defended by the "new" (the plurality did not agree it was a novel claim) concern about candidates spending so much time raising money. Stevens:
    But, of course, while a car cannot run without fuel, a candidate can speak without spending money. And while a car can only travel so many miles per gallon, there is no limit on the number of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this budget is above a certain threshold, a candidate can exercise due care to ensure that her message reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate need not flood the airways with ceaseless sound-bites of trivial information in order to provide voters with reasons to support her.

    Indeed, the examples of effective speech in the political arena that did not depend on any significant expenditure by the campaigner are legion. It was the content of William Jennings Bryan's comments on the "Cross of Gold"--and William McKinley's responses delivered from his front porch in Canton, Ohio--rather than any expenditure of money that appealed to their cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to engage in the debates with Stephen Douglas and Richard Nixon that may well have determined the outcomes of Presidential elections.

    The plurality rested on precedent respecting the expenditure matter, only noting that the "new claim" was addressed before, so was not a compelling reason to overturn precedent. Souter (who wrote the primary dissent with Stevens/Ginsburg joining) disagreed that precedent necessarily required no expenditure limits at all. Stevens thought reasonable minds could disagree on the point, so firmly spoke for reversal. The current rule is surely not cost-free, though there are alternatives to expenditure limits (e.g., free air time). But, his reasoning is question begging. I also note he cites a previous cases to show Buckley reversed previous allowances for expenditure limits, but one such case involved union expenditures ... surely a different matter.

    How exactly is there "no limit" on the number of speeches a candidate may give on a limited budget -- those things time and money, even if we are talking about a meeting at some local club. How do we determine if "trivial information" is involved? "Ceaseless?" A handful of political ads can be quite expensive ... again, free air time might help a lot more than expenditure limits as would quid pro quo public funding. McKinley's campaign is a particularly poor example, since his campaigns might be deemed the first modern campaign, one the spent sizable funds to promote their message to countless groups. [Such spending in part led to early 20th Century limits on corporate spending.] And, how about those candidates actually kept out of the debates (sometimes, incumbents even refuse to agree to have one) -- obviously not close enough to be elected anyway.

    I lean toward the more absolutist preferences of Scalia/Thomas though would probably vote with the somewhat less laissez faire approach of Justice Kennedy. But, on one matter, Justice Scalia's earlier remark in the campaign cases of a few years ago seems very appropriate: opposition in part seems to come from distaste with the message ... so-called ceaseless sound-bites of trivial information ... which simply cannot be grounds to limit a core means to promote speech and associational interests that hit to the core of the First Amendment. The plurality's approach might very well lead to confusion (not a novel thing these days), but the basic flavor seems right, and should not be seen as too much of a loss for those who support "campaign finance reform" since it accepts donation limits and is focused on balancing.

    Thus, regulation is allowed ... progressives generally should hope Justice Breyer writes opinions that lean the way they might not like. Yes, expenditure limits are still a no no, but you knew that -- Alito/Roberts were not likely to both be more open to regulation than their predecessors, and if anything, Alito would be less so than O'Connor. And, I think progressive energy should be focused on other ways to deal with the difficulties involved in campaign finance than the Sisyphusian attempt to limit how much a candidate spends – limits on how much they receive is a hard enough task, putting aside thirty years of judicial precedent on the matter.

    Arbitrary line drawing is the least of their problems, though it is enough. The problem, per some of the concurrences, arises on the contribution end as well, but at least fears of unjust influence and so forth are stronger there. Buckley split the baby a bit, and unlike in Solomon’s time (where the proposal was much more literal), it is a workable path … thus, the Court’s predominant pragmatist took it on here.

    [The other opinions are of note. One had Justice Scalia write the 5-4 opinion joined by the libs, Alito the dissent, involving a clear statement respecting a right to a lawyer of one's choice. Sometimes, Scalia's approach has liberal effects. Another underlines the importance of clarity in legislation and how the courts can deal with open to debate laws. And, the third puts a questionable limit on a recent trend that in part honored the role of juries. OTOH, see here for further discussion.]


    * The opinion opens with a succinct summary underlining the pragmatic approach which in part respects precedent on the expenditure issue:
    We here consider the constitutionality of a Vermont campaign finance statute that limits both (1) the amounts that candidates for state office may spend on their campaigns (expenditure limitations) and (2) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitations). Vt. Stat. Ann., Tit. 17, §2801 et seq. (2002). We hold that both sets of limitations are inconsistent with the First Amendment. Well-established precedent makes clear that the expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U. S. 1, 54-58 (1976) (per curiam). The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring. Id., at 25-30. That is to say, they impose burdens upon First Amendment interests that (when viewed in light of the statute's legitimate objectives) are disproportionately severe.

    Sunday, June 25, 2006

    NYT Entry: "A Threat That Belongs Behind Bars"

    And Also: The Braves ended (barely) their ten game losing streak by beating Tampa Bay (better record) in extras, though they lost two pitchers in the battle (including Smoltz). They lost the next day vs. a TB spot starter, continuing their remarkable descent to the cellar. It's almost a shame ... also, they have had a sort of movie horror monster quality that makes one wonder if they truly are dead. The Mets are not playing like a stupid horny teenager these days, though the other teams in the NL East (Marlins excepted, for now) basically are. Heck, almost the whole NL is. [The Braves won today, and thus the series. Watch out!]

    Eric Posner has an editorial in the NYT today entitled "A Threat That Belongs Behind Bars," which focuses upon this point:
    Critics argue that if the United States cannot prove before a court of law that detainees at Guantanamo Bay have committed a crime, then they should be released. This argument rests on the principle that people should be punished only for committing a crime.

    The emotional appeal of this notion is undeniable, and the Bush administration has met critics partway by creating military commissions that will try some detainees for war crimes while denying them the full protections of due process available to criminal defendants. But the critics' argument rests on a half-truth, and as we rethink the wisdom of Guantanamo Bay, we should be sure to understand the complicated reality it conceals.

    The whole effort, from this beginning, is as tiresome as it is troubling. I doubt that one is supposed to consider the "emotional appeal" to be a totally positive development, the suggestion being that a reasoned look at the problem will show "the complicated reality it conceals." So, we are set up for the fall. But, we are also set up for "half-truth" as well given this misleading opening. Put aside that the Bush administration "met critics partway" (apt phrasing) under distress. My other concern is that the paragraph ignores that the detainees are not even getting the "full protections" generally supplied to military commissions. This is a big part of what Hamdan is all about.

    The editorial goes along similarar path the rest of the way. The core argument is this:
    Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.

    And, various examples are given, such as the mentally ill. Put aside that the mentally ill also receives a good "package of due process protections" denied to various detainees, including freedom from maltreatment, timely and consistent providing of lawyers, and clear rights to access to civilian courts. Again, warning ... bullshit alert!!! Oh, how I despise such specious reasoning. We also can note that the mentally ill are not treated the way these detainees are treated ... that is, as not only dangerous, but fully responsible for their actions, therefore worthy of moral approbation and perhaps even harsh punishment. Thus, bad example.
    Dangerous undocumented aliens can also be detained. An undocumented alien who commits a serious crime receives a regular criminal trial, but after he has served his time, he is supposed to be deported. Sometimes the home country will not accept him, in which case immigration law authorizes the American government to detain him indefinitely. ... Again, the detainee is entitled to a civil hearing only, and thus does not benefit from a jury or other criminal trial protections.

    Again, this is pathetic. First, he mixes in actual criminals, who have been given full hearings -- the very point of controversy -- into the mix. Second, he mixes in those with at least civil hearings, hearings again (though in various cases problematic) more than what are being offered for Gitmo people. Third, we are talking about people taken up from our soil, not the case in Gitmo. Finally, even in the limited area of those held (again after hearings spelled out by law) to be deportable but in which their home country won't take them, the editorial admits the Supreme Court limited the government's discretion. But, hey, possibly, a more narrow law would allow them to be held "indefinitely." Do not fall off that limb ... tad narrow there.
    Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn't actually caused harm.

    Laws that consistently targeted what later (and often at the time) was deemed lawful speech, eventually (as the editorial sadly admits -- the times have changed, we need less freedom) by Supreme Court precedent. What a sad acceptance of years of oppression. Posner again uses the sadly predictable mixture of the wheat and the chaff by tossing in the detention of enemy aliens during WWII (detention clearly excessive, but again, concerning those taken from our soil, not oversea lands) and "hundreds of thousands of enemy soldiers." Well, sure -- same thing, right? Likewise, "enemy soldiers" are not really the same thing as "people handed over via bounties" (my phrase) and so forth.
    Finally, even when deciding the length of ordinary criminal sentences, judges often take account not just of guilt but of a defendant's dangerousness. A sentence, in reflecting dangerousness, may be longer than is justified by the defendant's guilt. ... The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public.

    His final straw is to consider the issue of aggravating circumstances and such. The fact he has to deal with a subset that "often" occurs is a bit telling in itself, but overall, the point is that these people are "criminals." The "dangerousness" factor often tends to be tied to the crime, since it tends to hand in hand with guilt. But, yes, there is a sort of "civil" quality to sentencing. Now, of course, we are talking about "criminals" here, criminals with full-fledged constitutional rights. So, again, a different sort of animal.
    The question of whether to close Guantanamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.

    If they are, the United States government can, without offending American legal traditions, lock up suspected Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.

    Posner set up a strawman argument that critics are saying that only criminally liability is involved in detainment. I really do not know of too many who are saying this, if any. His kitchen sink approach of mixing a bunch of only weakly connected examples, examples that can and were (rightly) criticized in various ways on their own leaves something to be desired. And, the general argument is not for "a full-blown criminal trial" for those in Gitmo, just various protections understood to be required by international law and the usual rules of war ... if "war" is the right word to use. Thus, Hamdan defendants in part oppose allegations of "conspiracy."

    But, hey, the "moral harm" discussed here -- clearly as a soft concern -- is on the money. I would even say that it works on its own, helpful given the prevalencence of so much specious reasoning out there.

    Saturday, June 24, 2006

    Privacy, Freedom of the Press, and All That Jazz

    And Also: Al Gore was great on David Letterman, who himself was in good "serious mode," intelligently raising various issues he cares about. A recent NYT article suggested Dave phones it in too many times, a true criticism, but he has his moments ... Leno just resigned himself to successful mediocrity. Dave's first question was basically wondering if Iraq is just a mess, one of our own making. Gore simply said "yes." Overall, a bit depressing -- I remember him on the show as Vice President ... tempus fugit. Truly, a different age.

    There has been various blog posts about the NYT (and others) having an article discussing "a secret anti-terror program to sift through bank records," which was co-written by James Risen (author of State of War : The Secret History of the C.I.A. and the Bush Administration). From the article:
    The program is limited, government officials say, to tracing transactions of people suspected of having ties to Al Qaeda by reviewing records from the nerve center of the global banking industry, a Belgian cooperative that routes about $6 trillion daily between banks, brokerages, stock exchanges and other institutions.

    As with the NSA warrants story last December, the Bushies tried to keep the story from being printed. Cheney voiced his disapproval for the press making it hard for BushCo to government without oversight, while Sen. Specter wondered why the press seems to be the only way members of Congress can keep properly informed on such issues. Suffice to say, complaints about the MSM notwithstanding, imagine how worse we would be without its coverage of various issues. This is not just when the government does something totally wrong -- so sad that this can be raised as a legitimate test these days -- but also when members of the administration note a policy "raises difficult legal and public policy questions."
    Nearly 20 current and former government officials and industry executives discussed aspects of the Swift operation with The New York Times on condition of anonymity because the program remains classified. Some of those officials expressed reservations about the program, saying that what they viewed as an urgent, temporary measure had become permanent nearly five years later without specific Congressional approval or formal authorization.

    Dare I say that this is worthy of some oversight, including by a free press. I might even go out on a limb and say that this particular administration deserves less of a benefit of a doubt. I know, the sign of a true Bush hater! In fact, the article actually notes some safeguards were put in. Thus, it can be deemed a POSITIVE piece in part for the administration. But, sure. All those neoconservative bloggers and members of the Weekly Standard are right, put James Risen and company in jail. The reprobates. You would think there was some near absolute bar against the government interfering with the freedom of the press or something.

    Of course, leaking of classified information -- including on this very topic -- is okay as long as it is beneficial to the administration. This is done all the time, so the idea that it is somehow verboten is surely silly ... again, we are passionately told something that is clearly b.s., which is by now so apparent that it is really almost unworthy of comment. One also notes that the article really does not say anything that exposes particular methods or so forth that really is a threat to national security. We know the government is investigating bank records. This is not news. The point is that this sort of thing generally has various safeguards, including privacy laws in overseas areas that are being targeted. So, it boils down to a complex means of balancing privacy vs. security.*

    This has to be done by society as a whole, not just the "unitary executive." The fact the Vice President etc., the mouthpiece that is closely connected to him, the blogs that most passionately defend them, and so forth finds this hard to accept underlines the basic problem with the core of their ideology.


    * Talking about privacy, I was again admiring Justice Stevens' opinion in the Webster case, which in part connects privacy with the right of conscience, freedom from establishments of religion, and overall liberty. Such themes are present in Casey etc., so not just the thoughts of him alone, though he does a better job connecting it to religious freedom. A matter a bit more complex than liberal bashers suggest (see comments).

    A certain private realm to make such choices is a core issue at hand. In the words of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom."

    Of course, many on the other side speak of it as a "so-called" freedom and/or a mere "liberty interest" that can be balanced away if any "reasonable" competing governmental purpose is present. Such is the rub.

    Presidential Signing Statements

    And Also: Many bloggers are excited about Sen. Clinton's proposed new privacy protections, and a story about U.S. Navy sailors' information being posted online just underlines the continual importance of the issue these days. ["A half-dozen federal agencies have been affected by computer data losses in recent months."]

    Jack Balkin helpfully notes that Joyce A. Green, an attorney in Virginia, has created links to all of the Bush Administration's presidential signing statements. Ms Green also has a very useful FAQ page, which includes links to various articles and such about the topic. For instance, she notes:
    Media sources and bloggers have occasionally reported that George W. Bush has issued as many as 750 signing statements. This is technically incorrect. It is true, however, that scholars such as Christopher Kelley and reporters such as Charlie Savage have painstakingly examined the signing statements and found challenges to 500-750 statutory provisions within these 130 statements. For instance, Professor Kelley has found challenges to 50 laws in a single bill signing statement (the statement for the Consolidated Appropriations Act of 2004).

    Likewise, a "signing statement" is a particular animal ... every "statement" by the President on some piece of legislation is not the same thing as a signing statement. Also, things like executive orders and such are not the same thing either. This all can lead to some confusion, but also underlines that there are various ways to go about what he is doing here -- trying to make laws passed via Art. I, sec. 7 generally voluntary things. Consider this statement:
    Today, I have signed into law H.R. 2115, the "Vision 100 -- Century of Aviation Reauthorization Act." The Act is designed to strengthen America's aviation sector, provide needed authority to the Federal Aviation Administration (FAA), and enhance the safety of the traveling public. ....

    The executive branch shall construe as advisory the provisions of section 812(a) of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authority to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.

    In effect, he is arguing ("unitary executive" is mentioned over a hundred times) part of the bill is unconstitutional. But, the way he is going about this is fraudulent, since he is "construing" something that is pretty plainly worded to mean something else:
    Sec. 812. Reciprocal airworthiness certification.

    (a) In General.--As part of their bilateral negotiations with foreign nations and their civil aviation counterparts, the Secretary of State and the Administrator of the Federal Aviation Administration shall facilitate the reciprocal airworthiness certification of aviation products.

    What part of "shall" does he not understand? As noted by John Dean in one of those linked articles on the FAQ page, the Justice Department usually gives a high presumption of constitutionality to laws passed by Congress. Furthermore, how exactly is this measure so burdensome? It sounds almost like boilerplate, but as mom always says, it is the principle that counts. Consider as well an earlier measure back in 5/01 concerning mad cow, the "Animal Disease Risk Assessment, Prevention, and Control Act of 2001":
    Section 3 of the bill requires the Secretary of Agriculture to submit to certain committees and subcommittees of the Congress a preliminary report concerning any immediate needs for additional legislative authority or appropriations and a final report with recommendations for legislation that will improve efforts to assess, prevent, or control transmission of certain diseases. Section 3 will be interpreted in a manner consistent with the constitutional authority of the President to recommend to the consideration of the Congress such measures as the President shall judge necessary and expedient.

    Many statements basically refuse to accept the responsibility to keep Congress informed about the executive's actions on various subjects, including carrying out the Patriot Act. Thus, Congress not only has to be looking (not always likely), but be able to find out what is going on. Since the President has a habit of not being totally open about such things, even when directly asked, this is liable to cause problems.

    One also wonders about the constitutional infirmity in the legislature making sure its laws are properly being followed as well as being kept informed about matters with clear legislative import. This is not a matter of intimate executive conversations ... the whole Energy Task Force dodge. Of course, the unitary executive is not the only fear addressed. Consider an interesting kicker to the "21st Century Nanotechnology Research and Development Act," which authorizes appropriations for research in nanoscience, nanoengineering, and nanotechnology research and other related activities.
    Several provisions of the Act, including sections 2(d)(2), 3(c)(1), 4(d), and 5(d), purport to call for executive branch officials to submit to the Congress proposals for legislation, including funding legislation. The executive branch shall implement these provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient.

    The executive branch shall construe section 2(b)(4)(E) of the Act in a manner consistent with the Government's obligation under the Due Process Clause of the Fifth Amendment to the Constitution to ensure equal protection of the laws.

    The website helpfully links up to the legislation, since it is a bit confusing to understand what is being down here. Congress, for instance, often amends past legislation, thus the Congressional Record is rather confusing. Here, Bush is referencing in the second part of the statement this provision:
    (E) to the greatest extent possible, be established in geographically diverse locations, encourage the participation of Historically Black Colleges and Universities that are part B institutions as defined in section 322(2) of the Higher Education Act of 1965 (20 U.S.C. 1061(2)) and minority institutions (as defined in section 365(3) of that Act (20 U.S.C. 1067k(3))), and include institutions located in States participating in the Experimental Program to Stimulate Competitive Research (EPSCoR)

    In other words, you know who is making a veiled attack on a mild affirmative action move. Of course, some signing statements are purely vanilla, general sentiments on the law itself. The very first listed involves a mostly party line reversal of an ergonomics standard, one that Molly Ivins discusses in Bushwacked. As she notes, it has an interesting backstory:
    One of my favorite examples is that chapter on ergonomics ("The Blues in Belzoni"). When Bush came in, he appointed a guy named Eugene Scalia, son of the Supreme Court justice, to be the top lawyer at the Department of Labor. Scalia the Younger has spent his entire career as a very highly paid lobbyist in Washington, working for manufacturers associations, for the specific purpose of defeating ergonomic regulations. That was an effort started at the Labor Department by Elizabeth Dole -- that well-known communist. For 12 years they worked on trying to set up a central set of regulations. Everybody was at the table -- the manufacturers, the labor unions, the docs, all the players -- trying to prevent repetitive stress injuries, which actually cost industries an enormous amount of money, because millions of people get these things from repetitive motions at work. These regs had been worked out, they had been placed in the Federal Register, and then the Bush administration came in with a very clever ploy, and they undid the whole thing.

    As she tells it, eventually Scalia was too soft, and eventually stepped down. Well, so has his dad, sometimes, I guess. But, do not worry, the Bush Administration cares about our workers:
    The safety and health of our Nation's workforce is a priority for my Administration. Together we will pursue a comprehensive approach to ergonomics that addresses the concerns surrounding the ergonomics rule repealed today. We will work with the Congress, the business community, and our Nation's workers to address this important issue.

    You know "as the President shall judge necessary and expedient."