Saturday, April 30, 2011
Friday, April 29, 2011
Fight Of The Century: Keynes vs. Hayek Round Two
Here is "Round One" for those who never saw it: http://www.youtube.com/wat
Is And Should The "Harm Principle" Really Be The “Only Purpose” Of Law?
As a very general framework for justifying law, John Stuart Mill’s famous principle in his 1869 work On Liberty that the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” is superficially appealing. The reason this is appealing is that it leaves individual actions within the realm of individual responsibility, with only public actions that cause harm being those which are a matter of legislative public responsibility. This principle works to keep government from becoming overly paternalistic and intrusive in the lives of its citizens.
In general this is an agreeable starting point upon which a legal framework should be based. First and foremost, the law should prevent one person from harming another. What I wonder is whether this “harm principle” alone can truly suffice as the only basis for law? What is perhaps bothersome is that Mill states that the “sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” The right of self-protection is the moral right of the highest order, and therefore should serve as the first and loftiest moral basis for laws. But is it really “the only purpose” and “the sole end”? Is it the only factor to be taken into consideration when forming law, or must other values besides just self-protection be a part of the moral equation that results in just laws?
The greatest issue is whether paternalism, in the sense of protecting a person from harming himself, has any place in the law as well. Perhaps it is a lesser value, and therefore in order to ban one from harming himself there should be a requirement that the harm be of a more grievous kind. The threat of overuse of paternalistic justifications allowing for laws resulting in a “nanny state” or tyrannical intrusions on individual liberty should of course be kept in mind. In fact, it is precisely why a higher burden should be necessary for paternalistic laws. But does this mean that just because the burden might be heavier, it can never be met?
On the one hand there are paternalistic laws such as motorcycle helmet laws, seat belt laws, laws forbidding swimming without a lifeguard, or perhaps prohibitions of certain recreational drugs, that might not meet the necessary standard for a paternalistic law because the theory of personal assumption of risk renders the paternalistic justifications for the laws too weak.
However, should laws against dueling, laws against suicide or voluntary euthanasia, murder statutes (insofar as consent of the victim is not a defense), be cast aside because the person or persons involved have consented and therefore no one is being “harmed” “against his will”? I think not. In some cases, the value protected is of such a high order that the law must exist to protect people from themselves. In the examples just listed, the protection of life is a sufficiently strong value that it can compete with self-protection as a justification for law. It is a value of such a high magnitude that consent of the parties alone (which according to Mill does not qualify it as a “harm”) should not justify its legality. What I think this demonstrates is that other values besides self-protection might serve as an adequate justification for law.
Perhaps one might argue that this same logic about the value of protecting life just used should apply to seat belt laws and the like as well. Such an argument could and is credibly made. But is there reason to distinguish between a seat belt law and a suicide law? Perhaps the reason is that assumption of risk is a countering theory in those seat belt type circumstances as life is not directly and immediately at play, but rather it is just an increase of the risk to life that is at play. Therefore an assumption of that risk is sufficient to quell the justification of protecting life. As a result, it might not meet the higher burden of a competing value needed to justify paternalistic legislation in the same way a law against suicide does. No risk, however, is assumed in suicide, death is being directly chosen.
Liberals tend to think that they are today the ones that stand alongside the Millsean "harm principle." They are the ones that claim to, for example, want government "out of the bedroom" and pretend to be making a "harm principle" argument at least at times when it comes to social issues. Do not be fooled. They are no more of a Millsean than conservatives. I would ask those on the left that are inclined to believe they are adherents to the Mill's "harm principle" one question: Should something like Social Security contributions be abolished because they are coercive laws that exist despite the person involved having committed no harm to any other? If the answer to that is yes, then a competing value besides self-protection (namely “welfare”) has just been introduced, and you must recognize that Mill is not your philosopher at all. Both sides of the ideological spectrum have their competing interests that in fact render Mill an overly simplistic formulation for the basis of law.
Another question even within application of the "harm principle" becomes how broadly you define "harm"? Must it be direct or personal harm only? Mill suggests that it be defined narrowly by showing “perceptible injury” to a “concrete individual.” Intangible harm to society at large should not be legally regulated. The reason for arguing that it should be defined narrowly is that otherwise all sorts of laws can be passed under the rubric of preventing some wider harm to society which could lead to trampling individual liberty. But at the same time, it is important to note that Mill himself introduces competing values other than direct tangible harm caused without consent despite having declared this the "only purpose" for law. When it comes to public indecency, Mill says that legally proscribing such behavior should be allowed not for true "self-protection" but for the protection of societal "good manners" and to prevent causing "offense to others." Mill writes that “there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming within the category of offenses against others, may rightly be prohibited. Of this kind are offenses against decency; on which it is unnecessary to dwell,... the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be.” So even Mill has no problem including an alternative value of offense to others and good manners even though it does not strictly meet his definition of a harmful act that is condemnable in and of itself as causing “perceptible injury” to a “concrete individual.” A true purist in the "harm principle," on the other hand, might allow public acts of all kinds so long as these acts do not directly cause perceptible injury reasoning that causing others to be "offended" is not enough. Even Mills, though he may not admit it, has some exceptions to the Millsean "harm principle" proving that it actually should not be the only principle guiding the making of law.
In summation, Mills is a really great starting point, but cannot also be the ending point of all justifications for laws. There are values besides “self-protection,” which if important enough, can serve as the justification for laws. What Mills leads me to think is that if a law is paternalistic at its core, it does not mean it cannot be enacted, but only that that there is good reason to demand a higher standard to justify its inclusion among the laws which are more easily justified because they cause harm to other members of society without their consent.
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Town Hall Crowd Gives Paul Ryan Standing Ovation
Despite one incident where some booed Ryan at a town hall last week, the crowds at this week's and last week's town hall meetings have been overwhelmingly supportive.
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Senator Marco Rubio To Obama: Can't We At Least Recall The American Ambassador To Syria That You Sent Over There?
TweetClearly, we should be on the side of the Syrian people longing for freedom and challenging the regime’s corrupt and repressive rule. Unfortunately, the Obama administration’s hesitancy to weigh in has been mistaken for indecision at best and indifference at worst. The president needs to speak directly to the Syrian people to communicate American support for their legitimate demands, condemn Assad’s murderous campaign against innocent civilians, and sternly warn Assad and his cohorts that they cannot continue grossly violating human rights, supporting terrorism, and sowing instability among Syria’s neighbors.
But his words must be backed by clear, firm actions. As ill-advised as it was to restore diplomatic relations with Syria by sending an American ambassador to Damascus last year, we should now sever ties and recall the ambassador at once. While Syria is already under heavy U.S. sanctions as a designated state sponsor of terror, we should expand sanctions to include persons identified as authorizing, planning, or participating in deplorable human rights violations against unarmed civilians. Our partners in Europe, Turkey, and the Arab Gulf share many of our interests in Syria and play a large role in that country, and the president must put the full diplomatic weight of the United States behind an effort to convince them to adopt meaningful economic and diplomatic sanctions targeting Assad and his enablers in the regime.
David Letterman Says He's Considering Banning Donald Trump From The Late Show Because Of "Racist Comments"
Letterman is an idiot. There is plenty not to like about Trump, but racism is not on the list. I am sure Trump is crying into his pillow at the thought that he might not be able to go on Letterman's show. As Trump might say, Letterman is a loser and a sad fool.
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Thursday, April 28, 2011
Superman To Renounce His American Citizenship: So Much For "Truth, Justice, And The American Way'
To read more about this "leftist crap" in the comic books visit http://newsbusters.org/blogs/ken-shepherd/2011/04/28/leftist-crap-comic-books-superman-renounce-american-citizenship
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Privacy, Morality, And The Law In Commonwealth v. Sharpless (1815): “Although It Be Not Committed In Public”
One of the more interesting debates even in modern times regards the criminalization of conduct that takes place within the privacy of the home rather than in the public sphere. I found it fascinating to find that in the 1815 State case of Commonwealth v. Sharpless, what amounts to an old-fashioned pornography case, there are two sides of this very debate presented. One of the most important defense counsel arguments, in part, was that “[p]ublicity is the essence of the crime,” and therefore the showing for money of a lewd picture within the home could not be an indictable criminal offense.
The Court and the concurring opinion of Judge Yeates rejected this argument outright. The opinion of the Court was that “[i]t may be safely affirmed, that whatever tends to the destruction of morality in general, may be punished criminally. Crimes are public offences, not because they are perpetrated publicly, but because their effect is to injure the public.” Judge Yeates likewise writes “that where the offence charged, is destructive of morality in general; where it does or may affect every member of the community, it is punishable at common law.”
The assumption of the Court is that the showing of a lewd picture for money is sufficiently detrimental to the moral character of society as to be disallowed by criminal law despite the entire incident having taken place within the privacy of the home. I think whether this specific act rises to today’s standards of being sufficiently detrimental to the morals of society at large is rather beside the point, though it obviously would not. What is more relevant is how this applies to and contradicts the prevalent and general mindset that utters clichés like “the government has no place in the bedroom.” The problem is that oft quoted and repeated catchphrases in regards to moral issues often fail to address an important underlying principle that should itself be the topic of discussion and debate.
The underlying principle is here articulated by the opinions in Sharpless. Many looking at the rulings of these judges would think it is a throwback puritanical mindset that has no place in modern times. But is this really the case? Is the underlying principle that what tends to the general destruction of morality can be criminalized really objectionable at its root? I think the answer to that question is that there is still today a good case to be made that it is not. The disagreement today with those judges is more likely to arise from the fact that morality has changed to include different norms of proper and improper behavior, of what is truly lewd and lascivious. But the broader point that must be made is not to think of these two judges as throwbacks to a primitive bygone day, because the underlying principle they articulate is still prevalent in laws against prostitution, bestiality, incest, possession of child pornography, and other like crimes. These types of crimes exist today and have “moral” underpinnings even if everything taking place happens solely within a home. It therefore seems in large measure that what has changed is not disagreement with the underlying proposition of the judicial opinions, but rather a narrowing of what is now defined as “destructive of morality.” If the principle articulated by the judges is to be abandoned at its core, then why should many of the laws still in existence today with largely “moral” underpinnings not also be sent to the chopping block? And if such laws should indeed face a quick demise, would society be better off tomorrow than it was yesterday?
TweetHardcore Birthers, Like Any Conspiracy Theorists, Still Not Satisfied: Why Can't Top Conspiracy Theorist Accept New Evidence?
Visit msnbc.com for breaking news, world news, and news about the economy
Ann Coulter on the Obama birth certificate release:
Wired.com' Jonah Lerner writes this about conspiracy theorists:
The theory of cognitive dissonance – one of most influential theories in social psychology – was pioneered by Leon Festinger, at the University of Minnesota... While neuroscientists have begun to decipher the anatomy of this mental flaw – you can blame your anterior cingulate cortex – I sometimes worry that the internet is making things worse. Although we’re all vulnerable to cognitive dissonance (and the paranoid style has always been a loud presence in American politics) we seem to squander ever more oxygen on worthless conversations about Obama’s birth certificate and the North American Union. After all, thanks to Google we can find “evidence” in support of practically any belief. If you can imagine the conspiracy theory, there is a website out there ardently promoting it, and a clan of fellow believers who share your peculiar obsession with fluoridated drinking water and the New World Order. The end result is that we never have to recant. We can always find another link to “prove” that the government is trying to “zombify” us, or that aliens are going to destroy the earth at midnight.Tweet
Wednesday, April 27, 2011
Most Egyptians Favor Annulling Peace With Israel
The Jerusalem Post reports:
Most Egyptians are in favor of annulling a peace treaty with Israel, according to a Pew Research Center poll released on Monday.Tweet
The US-based think tank polled 1,000 adults throughout Egypt between March 24 and April 7, finding that only 36 percent would maintain peace. The percentage of Egyptians who support annulling the treaty (54%) does not vary amongst those who sympathize with Islamic fundamentalists and those who do not.
Donald Trump: "I Have Done A Great Service To The American People"
Meanwhile, in New Hampshire:
I have to say that I am not really taking Trump seriously as a Presidential contender. I don't think he will win the Republican nomination, nor do I think he should. When it comes to his own history there is much to be wary about, such as as the fact that most of his political donations have been to top Democrats including Harry Reid and Rahm Emanuel. But even so, I do agree with him on this one. He seems to have played a major role, if not the main role, in Obama finally releasing the birth certificate. And that was indeed a "great service to the American people" as it allows America to discuss and debate the issues and the harmful and incompetent policies of the Obama presidency. Tweet“Did you hear?” he [Donald Trump] asked a group of about 50 workers at the Wilcox plant outside of Portsmouth. “I am so proud of myself! I got this guy to show his birth certificate!”…
He was greeted by throngs everywhere he went, mobbed as he walked down Market Street in Portsmouth. One onlooker screamed, “You’re a bigot!” But most shouted out approval, with one man calling out, “Get the grades!”
Oprah Asks Obama About Releasing Birth Certificate: "Why Did You Wait So Long?"
Oprah asks Obama the right question in this circumstance. Obama finally did the right thing and released the birth certificate. The timing now may have been as politically motivated as not releasing it was earlier, but he still finally did the right thing. He may have released it now because of all the noise Donald Trump was making, because of poll numbers showing growing doubt over the issue, or to distract from some very serious issues regarding the budget and debt ceiling that are dragging his popularity down. He most likely simply refused to release it earlier because it was a cash cow for fundraising, and because it allowed him to paint his opponents as nutters and his allies to paint his opposition as racists. The bottom line is that the original long form birth certificate should have been released years ago. Instead of fueling the conspiracy theorists and the speculation over the birth certificate by appearing to be unwilling to do something as simple as allowing a single piece of paper see the light of day, this could have been nipped in the bud at the start. Now this is truly a non-issue and the country can move on to more important issues such as the disastrous policies of the Obama administration. The country can now also be rest assured that anyone continuing to harp on about the birth certificate must have forgotten to take their medication.
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Donald Trump Reacts To Obama Releasing Birth Certificate: Obama Released His Birth Certificate Because Of Me, Now Release Your College Records
To watch Donald Trump demanding the college records now also be released visit http://www.realclearpolitics.com/video/2011/04/27/trump_to_obama_now_release_your_college_records.html
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The Case For Originalism: Why The Constitution Must Be Interpreted According To Its Original Meaning
Elbridge Gerry said to his colleagues in the First Congress in 1789, "The people of America can never be safe, if...[the federal government has] a right to exercise the power of giving constructions to the constitution different from the original instrument." Interpreting the Constitution according to the original meaning of the provisions therein is today labeled as the philosophy of originalism. It is the only logical and legitimate method of Constitutional interpretation.
Early American Constitutional scholar St. George Tucker wrote in 1803, "The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task equally above ordinary capacities" (emphasis added). The written Constitution of the United States is “the original contract” of American society. As another early American legal scholar William Rawle explained in “A View of the Constitution” in 1829: “It is not necessary that a constitution should be in writing; but the superior advantages of one reduced to writing over those which rest on traditionary information, or which are to be collected from the acts and proceedings of the government itself are great and manifest. A dependence on the latter is indeed destructive of one main object of a constitution, which to check and restrain governors. If the people can only refer to the acts and proceedings of the government to ascertain their own rights, it is obvious, that as every such act may introduce a new principle, there can be no stability in the government. The order of things is inverted; what ought to be inferior, is placed above that which should be the superior, and the legislature is enabled to alter the constitution at its pleasure.”
What Rawle describes as “inverted” is the current state of affairs, and it is precisely due to a lack of recognition that the Constitution is America's “original contract.” As Georgetown Law Professor Randy Barnett (who teaches both contracts and constitutional law) explains: “With a constitution, as with a contract, we look to the meaning established at the time of formation for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or 'locks in' a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby undermine the value of writtenness itself. Writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment... Meaning must remain the same unless it is changed, and change requires the same degree of writtenness and formality as the original writing. A commitment to textualism, therefore, begets a commitment to original meaning unless this meaning is altered by a written amendment... Unlike a contract that can be changed by the parties, in the constitutional sphere, writtenness ceases to perform its function of constraining political actors if meaning can be changed by these actors in the absence of equally written modification or amendment whose ratification is outside their power.”
This is not a new argument. Supreme Court Chief Justice John Marshall asked in Marbury v. Madison in 1803 (the case that formally established the role of judicial review on questions of Constitutionality), "Could it be the intention of those who gave this [judicial] power to say that, in using it, the Constitution should not be looked into?... This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?" (emphasis added). It is basic to contract law that the meaning of the document is that which was within the reasonable contemplation of the parties. Advocating other "methods" of interpretation (which carry the added danger of placing no limit on the judge's power to "interpret") undermines the very purpose for which the Constitution was written in the first place, and there can therefore be no greater abuse of that writing. One of a more State's rights persuasion might prefer to compare the Constitution to a treaty between sovereign nations, i.e. the States, rather than a contract, but the underlying principle in no way changes. The general rules of treaty interpretation are to look at the ordinary and plain meaning of the written words, then the context surrounding the adoption of the treaty or its individual provisions, and finally the treaties object and purpose. Though I have not yet used the word originalism, all of these methods demand only that the original meaning and context of the treaty be looked to. There is no reason that the Constitution should be treated differently than a contract or a treaty, or for that matter a statute or any other legal document, in its interpretation. The most famous Supreme Court case that expressly announced the Supreme Court's power of judicial review based its argument directly on original meaning. What those who argue against originalism really don't like is the idea of a Constitution to begin with, or a document that defines, limits, and restrains. That's why they would rather talk nonsensically about "elasticity" in Constitutional interpretation. In truth, "elasticity" cannot be seen as anything but clearly contradicting the fundamental notion behind the Constitution that is the basic idea of it serving to "define and limit" and as the "intended restraint."
The Founding Fathers were very clear in their expectation that the Constitution would be interpreted in light of its original meaning. The "Father of the Constitution" James Madison wrote to M. L. Hurlbert in 1830 that "[a]s there are legal rules for interpreting laws, there must be analogous rules for interpreting constns. and among the obvious and just guides applicable to the Constn. of the U. S. may be mentioned-- 1. The evils & defects for curing which the Constitution was called for & introduced. 2. The comments prevailing at the time it was adopted. 3. The early, deliberate & continued practice under the Constitution, as preferable to constructions adapted on the spur of occasions, and subject to the vicissitudes of party or personal ascendencies." Thomas Jefferson wrote in a letter to William Johnson in 1823, "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." These are but a couple of examples of what could be very many more such explicit quotations from the Founding Fathers on how the Constitution is to be interpreted. It is not difficult to prove the originalism of originalism by looking to the words of the Founding Fathers themselves.
Further, the legitimacy of the judiciary is seriously called into question when the courts in Constitutional cases strike down or uphold laws regardless of the original meaning of the Constitution. This is the essence and very definition of judicial activism. The Constitution is the fundamental law of our nation. Alexander Hamilton wrote in Federalist No. 78 in 1788 that "[a] constitution is in fact, and must be, regarded by the judges as a fundamental law." Those who believe in the rule of law, as opposed to the arbitrary rule of five hotshot lawyers on the Supreme Court, must support originalism in Constitutional interpretation. Judges must treat the Constitution as law, and therefore must apply this law like others as originally understood. They should not be able to simply twist the fundamental law to meet a judicial policy preference. To allow this is to allow judges to do nothing more than act as legislators under the guise of applying Constitutional principles. This would be permitting a judicial usurpation of the legislative and policy role, rather than a judicial and legal one. This is especially dangerous given that there is virtually no check on the power of the Supreme Court. The only practical way to overturn a Supreme Court ruling that contradicts the Constitution's original meaning is to simply hope the Court eventually undoes its own wrongdoing, which is not a real check at all, or to pass a Constitutional Amendment, which the framers of the Constitution intentionally made difficult. The members of the Supreme Court when not faithfully interpreting and applying the Constitution stands as an unelected oligarchy trampling on our fundamental law. Alexander Hamilton made clear in Federalist No. 78 that "[i]t can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." A black robe does not mean a license to subvert the legitimate will of the people and their representatives by overturning laws that do not violate the Constitution as originally understood, nor should it give anyone the power to allow laws to be upheld that should be seen as unconstitutional according to the original meaning of a provision in the Constitution.
Justice Benjamin Curtis explained the proper role of a judge in answering Constitutional questions in his dissenting opinion to the infamous ruling of the Supreme Court in Scott v. Sanford in 1857:
“A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind on a question of the interpretation of the Constitution.... To engraft on any instrument a substantive exception not found in it must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible -- because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress, or, what in my opinion would not be preferable, an exponent of the individual political opinions of the members of this court.”This dissent in the infamous Dred Scott case remains true today. Once again, this is but one quote of many that can be provided that demonstrate and explain the original intention of the judiciary's role in Constitutional interpretation. Most of the modern Supreme Court and modern law professors seem to have forgotten this important message. They have abandoned an understanding regarding Constitutional interpretation that the Founding Fathers, and early American jurists and legal scholars thereafter, accepted as obvious. They fail to realize that there is nothing at all that can limit judges from merely implementing their own policy preferences other than an adherence to original meaning regardless of whether the judge agrees with the policy outcome. Judge Robert Bork was right when he said in 1985 that "only by limiting themselves to the historic intentions underlying each clause of the Constitution can judges avoid becoming legislators, avoid enforcing their own moral predilections, and ensure that the Constitution is law." It is therefore past the time and more than critical that we work together to bring about a rebirth of Constitutional originalism, the only legitimate avenue of Constitutional interpretation, to our great country.
A common argument against originalism is that the Constitution must "live and breathe" (in the chambers of a courtroom) so that it can change and adapt in accordance with contemporary societal needs. But the framers of the Constitution understood the need for change, and provided for it. The mechanism for changing the Constitution is provided within the Constitution itself. Article 5 of the Constitution provides for the process of bringing about an Amendment to the Constitution. When the judiciary issues rulings, however, that have no basis in the original meaning of the Constitution, they have circumvented the Amendment process and therefore violated the Constitution itself. It is not a matter of supporting a "living Constitution" as opposed to a dead one, but rather an enduring Constitution as opposed to an illegitimate one. George Washington said in his Farewell Address in 1796, "The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." That includes judges and politicians.
Some might counter that it is too difficult to await Constitutional Amendments, that the Constitutional Amendment process is just too much of an obstacle to necessary changes in its meaning. But this is how the authors and ratifiers of the Constitution intended it. They did not want a Constitution subject to the whims of the times. The point of the Constitution was to enshrine principles that would last throughout the ages, rather than be subject to arbitrary changes of those in power. Charles Pinckney said at the South Carolina Ratifying Convention in 1788 that "[w]e are to reflect that this Constitution is not framed to answer temporary purposes. We hope it will last for ages--that it will be the perpetual protector of our rights and properties." The framers knew that it is possible that "there shall come a Pharoah who knows not Joseph and his sons." They therefore created a Constitution to limit those in power. They very wisely also made it and wanted it difficult to change. "It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... [O]ur Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution," wrote Thomas Jefferson in the Kentucky Resolutions of 1798. Supreme Court opinions that constantly and consistently undermine the original meaning of the Constitution violate this important principle. That some would allow our confidence to be placed in five of nine unelected lawyers on the Supreme Court no matter how they rule violates the very essence and purpose of our founding legal document. As Supreme Court Justice Joseph Story wrote in his "Commentaries on the Constitution" in 1833: "Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people."
The "living Constitutionalists" on the Supreme Court and in the legal academy make a mockery of the Constitution. James Madison wrote in 1824, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." Yet a subversion of this simple Madisonian principle is accepted by far too many with influence over teaching, crafting, and adjudicating our laws.
Thomas Jefferson rightly wrote in a letter to Albert Gallatin in 1802 that "[w]e ought always to presume...the real intention [of the Constitution] which is alone consistent with the Constitution." Unfortunately, that presumption is being abandoned in modern America. It is a presumption that has been explicitly abandoned by the modern Supreme Court which declared in Lawrence v. Texas in 2003 that
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Obama Finally Releases Birth Certificate
CNN reports that "President Obama released his original birth certificate Wednesday, saying the controversy surrounding the issue had become a 'sideshow.'"
Obama must have been reading STEVELACKNER.COM and taken my advice when I wrote just yesterday, "Put the damn conspiracy theories to rest by simply releasing the stupid thing."
Here was Donald Trump's response:
TweetDonald Trump, who helped drive questions over President Obama’s birth certificate, said the release Wednesday was a victory for him because he made the president act.
“I am really honored, frankly, to have played such a big role in hopefully, hopefully, getting rid of this issue,” he said, though he said more investigation has to be done. “Now we have to look at it, see is it real, is it proper.”
Palestinian Authority Daily: "Jews, Jews! Your Holiday [Passover] Is The Holiday of Apes"
From Palestinian Media Watch:
An article in the official PA daily newspaper claims that Palestinian Christian youth perform a spring march in the streets that includes the chant: "Jews, Jews! Your holiday [Passover] is the Holiday of Apes." (See PMW web site for examples of the Palestinian Authority referring to Jews as "apes and pigs.") He writes that these "meaningful messages" are in response to Israel's security measures in Jerusalem during the holiday of Passover:
"For many years the holy city [Jerusalem] has been deliberately closed to Palestinians, under security-related pretexts and for the Jewish festival of Passover."
"The festivities at the Church of the Holy Sepulchre have begun to assume a western character, because of the massive presence of foreign Christian pilgrims and the limited presence of Palestinians."
"The spring carnival has retained its [Palestinian] flavor in towns such as Bethlehem, Beit Sahour and Ramallah... with the demonstrations of the Scouts, songs, dances, and popular Palestinian hymns about Christian-Islamic unity and internal Christian unity. These hymns carry meaningful messages, in response to the Israeli prohibition [to enter Jerusalem], as seen in the calls of the youth who lead the procession of light, waving swords and not caring if anyone accuses them of anti-Semitism: ... 'Our master, Jesus, the Messiah, the Messiah redeemed us, with his blood he bought us, and today we are joyous while the Jews are sad,' and, 'Jews, Jews! Your holiday is the Holiday of the Apes, while our holiday is the Holiday of the Messiah.'"
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White House Press Secretary Laughs At Reporters Asking Why Obama Didn’t Release Easter Statement
The White House did not release a statement for Good Friday either. The White House has, however, released statements for Muslim holidays and in 2010 statements were issued for Ramadan, Eid-ul-Fitr, Hajj, and Eid-ul-Adha. They also did release an eight-paragraph statement for Earth Day. The President also had a statement released for Passover. It seems absolutely bizarre to not have some sort of statement for Easter. The president's weekend address made no mention of Good Friday or Easter as well.
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University Of Iowa Professor To College Republicans: "F*** You, Republicans"
The Iowa Republican Reports:A University of Iowa professor felt the need to reply to a blast email by the College Republicans on Monday morning. Ellen Lewin, a professor of Anthropology and Gender, Women’s & Sexuality Studies in the Department of Gender, Women’s & Sexuality Studies, sent a vulgar response to a College Republican email about the group’s, “Conservative Coming Out Week.”
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The College Republican email, which was sent to the entire University of Iowa Community, had been approved by a number of university officials before being sent out.
Lewin responded to email by writing, “#*@% [F-Word] YOU, REPUBLICANS” from her official university email account.
First Family Attends Easter Services In Church Headed By Yet Another Racist, Angry Pastor
Here is a clip from a speech given last year:
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Tuesday, April 26, 2011
MSNBC’s O’Donnell Explains Jesus's Position On Progressive Tax Brackets
Biblical scholar Lawrence O'Donnell is citing Jesus as the source for the rich having to turn over all their earned income to the government. That the wealthy may have an increased religious obligation to charity, rather than a government mandated compulsion in taxation, is something apparently too complicated for MSNBC hosts to wrap their heads around. They would rather reinvent Jesus as the IRS tax man.
If O'Donnell truly conflates charity with taxation, there is nothing stopping him from giving his entire MSNBC salary to the U.S. Treasury.
It's good to know that the liberals at MSNBC actually have no problem with citing the Bible to support today's political policies. I am sure they would have no problem with anyone on the Christian right doing the same, right?
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Pro-Abortion Extremist Indicted For Threats
Ignoring that there are "pro-choice" radicals may serve some wider media purpose and bias of pretending that the zealots only appear on the pro-life side, but it is not the truth. This point alone must be recognized. TweetFor years, opponents of abortion rights have complained to local, state, and federal law enforcement that Theodore “Ted” Shulman, a radical abortion-rights activist, was harrassing and threatening them. Nothing ever came of it until late February, when the anti-abortion rights blogosphere lit up with rumors that Shulman had finally been arrested….
Now Mother Jones can confirm that Shulman, the 49-year-old son of famed feminist author and activist Alix Kates Shulman, faces a 6-count federal indictment for allegedly threatening 2 unnamed anti-abortion activists. The charges, which each carry a maximum 5-year-sentence, could land Shulman in prison for decades if he’s convicted on all counts. Shulman pleaded not guilty.
CNN On The Obama Birth Certificate, Interviews Hawaii Official
The videos above demonstrate the evidence that Obama was born in Hawaii. I personally don't doubt that he was born in Hawaii at all. But the simplest question that still remains is why Obama has not requested that the original long-form birth certificate that the Hawaii official said she examined be released? Put the damn conspiracy theories to rest by simply releasing the stupid thing. Do that, and I believe you won't be hearing much about Obama's birth certificate anymore after that.
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Bashar Assad, Labeled By Hillary Clinton As A "Reformer," Killing Hundreds In Syria
How much sense does Secretary of State Hillary Clinton's distinction between Libya and Syria make now? The Washington Post reports:
TweetSyrian leaders deployed tanks and troops against unarmed demonstrators Monday in a sharp escalation of their effort to crush the widening protest movement, prompting the Obama administration to condemn the deadly crackdown and weigh additional sanctions against the embattled government.
The Syrian army entered the city of Daraa, the cradle of anti-government unrest near the border with Jordan, and other southern towns as protesters massed in the streets. According to witnesses and news reports, about 25 demonstrators were killed in Daraa and the coastal city of Jableh, where witnesses said snipers opened fire on the crowd.
The government’s show of force, the largest in weeks of street demonstrations, is sharpening the choice facing President Obama, who has attempted to balance calls for democratic reform in the Arab world with concerns of allies that have counted on President Bashar al-Assad to preserve stability in the volatile Middle East.
Law Firm Hired By House Of Representatives To Defend DOMA Backs Out
The law firm King & Spalding decided to drop the case defending the Defense of Marriage Act:
The Wall Street Journal correctly noted in an editorial entitled "Knave and Spalding":The Atlanta law firm King & Spalding on Monday filed a motion to withdraw from its participation in defending the Defense of Marriage Act, prompting the immediate resignation of high-profile partner Paul Clement.
The law firm had come under fire from gay rights groups when partner Clement agreed to defend the law for Republican leaders in the U.S. House of Representatives. The act defines marriage as only a union between a man and a woman.
“Last week we worked diligently through the process required for withdrawal,” Robert D. Hays Jr., the firm’s chairman said. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
Clement, the head of King & Spalding’s national appellate practice, was to be paid $520 an hour for his representation. He once served as U.S. solicitor general for President George W. Bush. The Obama administration has said it will no longer defend the law in court.
Is it now so politically incorrect to oppose gay marriage that a white shoe law firm will throw over a client rather than defend a law signed by President Bill Clinton? Apparently so, after yesterday's show of invertebrate representation by King and Spalding, the giant Atlanta-based law firm.In contrast, it is worth also pointing out that King & Spalding is willing to defend Guantanamo detainees, free of charge. TweetKing and Spalding dropped the House of Representatives as a client yesterday only days after agreeing to argue for the House in defending the constitutionality of the 1996 Defense of Marriage Act, or Doma. The jilting prompted the firm's lead attorney in the case, former U.S. Solicitor General Paul Clement, to resign from the firm in what we would call principled protest.
In a letter to King and Spalding Chairman Robert Hays, Mr. Clement explained that he felt obliged to resign out of a "firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do."
At least there's some honor among lawyers, if not at the top of King and Spalding. In his statement yesterday, Mr. Hays resorted to some spin that the firm had failed in properly "vetting" the House "engagement." But Mr. Clement's letter says "I would have never undertaken this matter unless I believed I had the full backing of the firm."
It's hard to believe such a prominent firm wasn't aware of the high profile of the House case. Speaker John Boehner had convened a bipartisan group to seek counsel to defend Doma after the White House reversed itself and said the Justice Department wouldn't do so. The House group reached out to several firms and chose King and Spalding last week.
The likely story here is that King and Spalding began to fear a political backlash after activists at the Human Rights Campaign launched a campaign to "educate" (read: intimidate) the firm's clients about "King and Spalding's decision to promote discrimination." Clients include Coca-Cola and other Fortune 500 giants that prefer to avoid hot-button social issues.
That's fair enough, but once a firm takes on a client it is the firmest of legal obligations to see a case through save for a clear conflict of interest. To drop a case under political pressure is especially unethical. Imagine the outcry if a firm of similar standing stopped defending Guantanamo detainees?
Whatever one thinks of Doma, it passed both houses of Congress with huge majorities, and Vice President Joe Biden was among 85 Senators who voted "aye." The law defines marriage as between a man and a woman and says states aren't obliged to honor gay marriages recognized in other states.
Social mores have changed in 15 years, but not so much that gay marriage should be imposed by judicial fiat in a way that further inflames the culture war. The Human Rights Campaign has every right to challenge Doma in court, but it does itself no honor by trying to deny that same right to Doma's supporters by harassing their legal counsel. As for King and Spalding, better not turn your back on its lawyers in a firefight.
Sunday, April 24, 2011
Thoughts On The 1987 Utah Supreme Court Decision Regarding Polygamy And Custodial Rights: Should Polygamy Alone Be Enough To Be Stripped Of Custody?
Sanderson v. Tryon was a 1987 Utah Supreme Court case that considered the effect that polygamy should have on the rights of parents in a dispute over custody of the children. In the case, a former polygamist husband Robert Tryon who had abandoned his belief in plural marriage wanted his former wife, Jennifer Sanderson who was at the time in a polygamous marriage, to be stripped of custodial rights over their child.
The trial court in its findings of fact stated that “except for Sanderson's practice of polygamy, there were no findings to support the conclusion that Tryon's custody would best serve the child's interests." The Utah Supreme Court then ruled that “we similarly hold that the trial court's finding that a parent practices polygamy is alone insufficient to support a custody award or to permit meaningful review on appeal.” The Supreme Court of Utah upheld the ruling. If this were the totality of what the court held, it would be quite obvious why they refused to strip Sanderson of her custodial rights. The best interests of the child would have been considered by the Court and Tryon's argument simply rejected on that basis.
Yet what is bothersome about the case is that at the same time the trial court stated as another of its findings of fact that a polygamous home is "an immoral environment for the rearing of the Sanderson/Tryon children by reason of its practice of polygamy in violation of Utah state law, and its tolerance and approbation of violation of state law regarding polygamy." It seems odd to say that on the one hand it is immoral and illegal, but on the other that it is insufficient to alone take into account as regards to the upbringing of children. It seriously casts doubt on how immoral polygamy should actually be viewed as to begin with. Once it is illegal, and specifically illegal because the Court and the State believes it is an “immoral environment,” I find it odd to say it is insufficient in a custody case. Would this logic be extended to other illegal immoral acts, and if so how far is this really to be taken in terms of other possible illegal immoral acts? If it is not enough of an “immoral environment” that it actually affects the family environment in practice, then why is polygamy outlawed in the first place? If the Court truly believed it was an "immoral environment," how can it then not be in the best interest of a child to not have the child reared in an environment of immorality?
Nonetheless, the Supreme Court ruled that a parent raising a child in a polygamous home is not enough to have that parent stripped of custodial rights. The Supreme Court noted that "we have previously held that a parent's extra-marital sexual relationship alone is insufficient to justify a change in custody." The Court reasoned that there should therefore be no difference when the case is polygamy. But I would question this precedent as well. Why is it so clear that an extra-marital affair should not be taken into account in custody decisions? Under certain circumstances, doesn’t the cheating spouse display an abandonment of his or her family by committing adultery that might be worthy of taking into account? Furthermore, is an extra-marital affair still an immoral "violation of Utah state law" with a parent having committed adultery raising a child being a case of "tolerance and approbation of [a] violation of state law regarding" adultery? Because if it is not, then the comparison to polygamy does not seem to make sense. The two would not be seen as analogous in the eyes of the law anyway.
These are just some of my basic questions about what is the otherwise uncommon legal issue of raising children in a polygamous home and the interplay that has with a custody battle.
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