It’s the consensus view that if Roe Vs. Wade were to be overturned, abortion rights would then move back to the states. I read it all the time, and law bloggers don’t even discuss it, it’s just assumed. But I wonder. How exactly would it be overturned? Would a majority say, sorry, we got it wrong, those pesky penumbras and eminations are so hard to decipher, a right to privacy doesn’t cover going out and having a medical proceedure? Or more likely, would the court have to find a right of the unborn that is more compelling than the mother’s right to privacy? And if that were the case, would it really go back to the state legislatures, or would abortion then be unconstitutional, and thus beyond the reach of the states?
Archive for category National Politics
Thinking Out Loud
Oct 28
And in other news, the California legislature has redefined marriage to be between two persons. Governor Schwarzenegger has to sign the bill for it to take effect. I hope he doesn’t. But at least the process is right – no judge’s fiat, no official ignoring the law.
UPDATE: Governor Schwarzenegger has said he will veto the bill because it conflicts with an initiative passed in 2000 that prevents California from recognizing same sex marriages performed in other states. I suppose the Governor is sensitive to such initiatives since they have formed the backbone of his programs in California. It could also just be cover for a political decision that he would like to avoid.
Note to Justice John Paul Stevens: pull your head out of your butt:
“Home and business owners’ contention that economic development doesn’t qualify as public use “is supported by neither precedent nor logic,” Justice John Paul Stevens wrote for the majority. “
Stevens added that “because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”
I’m not a big fan of Justice O’Conner, but she got it right in her dissent:
In a strongly worded dissenting opinion, O’Connor wrote that the majority’s decision overturns a long-held principle that eminent domain cannot be used simply to transfer property from one private owner to another.
“Today the Court abandons this long-held, basic limitation on government power,” she wrote. “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public — in the process.”
The effect of the decision, O’Connor said, “is to wash out any distinction between private and public use of property — and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.”
We’re replacing bedrock rights clearly in the constitution like private property and replacing them stretches like the right to abortion, the right to healthcare and the right to free school lunches. A terrible day for the constitution, and more shredding, foot wiping, and overturning than John Ashcroft has ever done and will ever do.
BooYa!
Jun 8
Stanford students are big on word compression – reducing words to their first syllable. So Memorial Church becomes MemChu, Memorial Auditorium becomes MemAud, and Hoover Tower becomes HooTow. I think we can use this to predict politics. For instance, George Bush would become GeBu but John Kerry would become JoKe. Hillary Clinton would become HillClin, but Howard Dean would become HowDe (with Doody invariably added). Okay, maybe the analysis is not up to the standards of a MicBar, but fun for me anyway.
Speaking of John Kerry, did you notice that although his grades were ever so slightly lower than Bush’s, it’s always reported that they were similar or nearly identical. Would the headline have been the same if they had been ever so slightly higher? Anyway, JoKe has a good explanation of why.
Speaking of Howard Dean, maybe HowDe should just go back to the all purpose “yeaghhhh!!!” instead of saying anything else.
Here Come the Judges
May 26
I guess I’m the only political junkie in America who neither knows who won or lost in the great judicial compromise of 2005 nor cares. OK, that’s not entirely accurate. But as I’ve said before, judges have only become an issue because we have allowed judicial activism to subvert the bedrock of representative government (that’s a fancy way of saying judges have become an unelected force unto themselves that make sweeping decrees based on their own personal feelings while ignoring the clear desires of the people as expressed through referendums and legislation). And while judges do from time to time uphold their important role of safeguarding the minorty or upholding unpopular but necessary principles, all too often it’s just a naked power grab for their own viewpoint. So frankly to me the whole fight is over the wrong issue, who gets appoint the tyrants, and not curbing the tryant’s power.
Like all agreements with no enforcement power, who wins or loses depends largely on how much each group honors the agreement, and how much real agreement there was. For instance, the agreement is filibuster only in “extreme circumstances”? So what does that mean exactly – in the case of Supreme Court nominees, or in the case of “extreme” nominees with the determination of “extreme” up to who? And what if there is a difference of opinion as to what constitutes extreme circumstances, who adjudicates and enforces the agreement? The merry band of 14 senators? On balance I’d say the Republicans came out on top as they have judges in hand in return for hazy future promises. Even with the lack of spine (or ruthlessness) demonstrated repeatedly by Republican senators historically, they managed to kick the can down the road as far as a showdown the electorate would notice while getting appointees who have languished for years finally approved.
Money and Judges
May 2
The fight over judges seems to me like the earlier fight over money in politics. We have a similar situation where once people didn’t care that much, but now they do. It seems to me that the change in attitude is caused by a change in power. As long as politics didn’t matter all that much to one’s daily life, there wasn’t that much money involved. But as the federal government changed into a 500 lb gorilla that touched everyone’s daily life, and every business, money came pouring in. And trying to stop the money flow without changing the power structure is like trying to repeal gravity.
And I see the same thing in the fight over judges. The real issue is that all of a sudden judges matter. They aren’t just a bunch of boring old guys in black robes; they are running school districts, defining the meaning of is, involved in elections, ultimately mandating goodness and/or evil. Is abortion really a constitutional right? Only as long as 5 particular judges say so. Can minors and the mentally deficient be executed? That isn’t a concern of the governed, nor of their representatives in the legislature, that’s a decision for judges. On and on it goes. And so now the fight is on because it’s something worth fighting about.
Wise Words
Apr 13
Eugene Volokh picks up on a commentary by Burt Neuborn in The Nation about the left’s (or progressive’s) addiction to the court system where he warns that simply relying on the courts to render verdicts rather than persuading people is a mistake. I have to agree – the long term battle ground is hearts and minds, not 5 particular justices. And he picks three good examples – abortion, gay rights, and separation of church and state.
One of the things that irks me when discussing abortion rights is people who begin and end with “it’s a constitutional right” period. Yeah, because 5 people said so, not on anything actually in the constitution mind you, but based on emanations from the penumbra of the Bill of Rights. I don’t know what that literally means in a legal sense, nobody does, but in practice it means a majority of the Supreme Court can hand down any ruling they want and it’s the law of the land. Not only is it non-persuasive, it’s infuriating. There are other arguments for abortion, which I don’t think beat the arguments against, but some of them are at least somwhat persuasive and not at all infuriating.
Quite frankly there is a danger if many important descision is usurped from the people and their elected representatives and made by the judiciary — it destroys representative government with its art of compromise and softening the rough edges and makes politics a winner-take-all match between two sides that are dedicated to packing the judiciary with their own.
I’ll go an example further – the famous Brown vs. Board of Education case that “ended” segregation in schooling. Only it didn’t end segregation – public schools are still separate and unequal, only more unequal which is more important. Predominately black schools in the city of St. Louis are as a practical matter far worse now that they were in 1954.
And that’s an important fact – there are limits to what laws can do, much more so that the limits on what majority culture can do.
What Njal Said
Apr 1
Donald Sensing takes up Tom Bevan’s Op Ed that asks, among other things:
If one is convinced of the moral strength of the argument for saving Terri Schiavo (which millions upon millions of Americans are), and if one further adheres to the proposition that every innocent life is worth protecting and that we as a society must not countenance a system that results in the death of a single innocent soul, are we not then obligated to reconsider support of the death penalty under all circumstances except those in which confessions have been given voluntarily?
I’m a death penalty agnostic, but I don’t buy this argument as a reason not to have a death penalty. Here’s where it falls apart: “a society must not countenance a system that results in the death of a single innocent soul”. Very few systems any human society sets up can make this claim, and certainly none that involves dealing death itself. It simply is an impossible standard, and to set it up foolishness. Set up a system that takes the fewest innocent lives is workable, but any is impossible.
And when I say any system, I pretty much mean any system. Our transportation system kills the innocents at an absolutely ferocious rate – 40,000 in cars and trucks a year in the US alone. Airplanes and trains are killers too. Horsedrawn vehicles, heck horses themselves were killers before mechanical transportation means came into effect. Energy – between coal miners killed, gas explosions, deaths at refineries etc. it too is a killer. Or how about something as mundane as keeping clean – people are killed in showers and tubs every year. And don’t get me started on how many buckets kill kids every year. You might argue that since the purpose of these systems isn’t to kill people, we should be more forgiving of such outcomes, but isn’t that exactly backward?
Now go back to criminal justice, and you’ll find that there are far more innocents locked up than executed. Why nobody worries about that is beyond me; why a life time wrongfully in prison being raped is nothing to care about yet wrongful execution, whoa, can’t have that is beyond me.
The real standard is to minimize the undesirable effects, and death of the innocent is hugely undesirable. It’s something that should and can always be worked on, but there is no absolute possible. We often say that our justice system is designed to let 10 criminals go free rather than wrongly convict 1 innocent person; yet we don’t say we let every criminal go free rather than wrongly convict any innocent person — because it not only sounds absurd, it is absurd. And yet that’s the standard that is raised here.
After winding his way through other knotty problems (it should be remembered that the original knotty problem was solved by one of the original applications of thinking outside the box: the application of a sword to cut instead of fingers to untie) he formulates his larger question:
At its core, the dilemma is this: At what point are we forced to live within the law even if we disagree morally with some of the outcomes resulting from its application?
Now we have a good question. I don’t know that I’d call it a dilemma as that implies a single decision whereas I think this kind of issue is neither a single decision nor a decision alone. As I said before, any system implemented by man is going to have problems, so I take it as a given that I will morally disagree with some of the outcomes of our legal system. And here my options aren’t to only live within or without the law, but to try and change the outcomes and the very law itself. I would argue that it is my moral obligation to try and change outcomes and the law itself in those cases where I think the outcomes are wrong.
Frankly, I think a better question would be phrased:
At what point am I forced to live outside the law because I disagree morally with some of the outcomes resulting from its application.
In other words, at what point does my working within the law, because that should be my default position, become itself wrong? I think the answer my friend varies from person to person. The Declaration of Independence is one attempt to answer that question; I have to be thankful to our forefathers to bequeath a system of government where I don’t have to rebel to effect changes in our laws.
Usurpers and Destroyers
Mar 2
I’m a death penalty agnostic; I still struggle with the issue. If I were in a voting booth with the stark choice before me: Abolish the death penalty, yes or no, I don’t know how I’d vote (as I’ve written before). Oddly enough, the case that gives me pause, the case where I say to myself, “if anybody deserves the death penalty, it’s this guy” — that’s the case that first the Missouri Supreme Court reduced the penalty from death and now the U.S. Supreme Court upheld that reduction in penalty. And I’m really unhappy with both courts — not about what they ruled but how and why. I’m not alone in that — if you think judicial decisions are all dry and windy dissertations without feeling, Justice Scalia’s dissent will disabuse you of that notion rather quickly.
I’m unhappy because of the MSC decision in the first place because it ran directly counter to the precedent of the USSC. In the words of Justice Scalia:
To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997). That has been true even where ” ‘changes in judicial doctrine’ ha[ve] significantly undermined” our prior holding, United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting Hatter v. United States, 64 F. 3d 647, 650 (CA Fed. 1995)), and even where our prior holding “appears to rest on reasons rejected in some other line of decisions,” Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U. S. 477, 484 (1989). Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.One must admit that the Missouri Supreme Court’s action, and this Court’s indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of “law” ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court’s pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment?
However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating” the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.
I think the good justice nails that one, but he only considers the effect on judges. How about police and prosecutors, who all too often “interpret” laws to their own advantage. Why should they be left out? The MSC destroyed the stability and respect for the law in an attempt to achieve an outcome that a majority of the Court want but not a majority of the citizens of the state of Missouri – an end to the death penalty.
Supporters of the decision keep saying “The US has joined the rest of the world”. Screw that. My ancestors didn’t come here because the US is like the rest of the world. I don’t keep living here because of the weather; I stay here because we aren’t like the rest of the world. Why do non-Americans get a “vote” on how we live here? If I wanted the unelected to issue decrees, I could go live in Europe or Zimbabwe. Why this pean to peer pressure? When did conformity become a good thing? What happen to the bravery and importance of dissent? I don’t want the United States Supreme Court looking at laws in Europe, ignoring the consensus of the European people which is different, and saying that some mythical foreign consensus should be imposed upon the American people.
But what about this consensus that executing killers under 18 is cruel and unusual punishment? Isn’t that why we have elections and legislators and initiatives? What better way for an emerging consensus to emerge? It certainly beats some jackanape in a robe from taking the temperature of the American people by sticking a thermometer up his own ass, which is what just happened.
In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
And as for the idea that there should be a bright line based strictly on age, well, again I’ll let Justice Scalia do the talking:
Indeed, this appears to be just such a case. Christopher Simmons’ murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could ” ‘get away with it’ ” because they were minors. Brief for Petitioners 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons’ actions unquestionably reflect ” ‘a consciousness materially more “depraved” than that of’ … the average murderer.” See Atkins, 536 U. S., at 319 (quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)). And Simmons’ prediction that he could murder with impunity because he had not yet turned 18–though inaccurate–suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons’ youth, he “ha[d] sufficient psychological maturity” when he committed this horrific murder, and “at the same time demonstrate[d] sufficient depravity, to merit a sentence of death.” See ante, at 18.
…
In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that “the chronological age of a minor is itself a relevant mitigating factor of great weight,” Eddings, 455 U. S., at 116, and that sentencing juries must be given an opportunity carefully to consider a defendant’s age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant’s maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court’s flawed proportionality argument simply cannot bear the weight the Court would place upon it.
The details are why ever since I heard them I’ve always thought that if anybody deserved death for his crimes, it was Christopher Simmons. And it’s those details that should matter, not age.
On a side note, the state park Shirley Crook was murdered in was Castlewood — the park my cub scout pack has camped in, and I posted pictures of just below. That beautiful shot from the bluffs – around the river bend on the left is the railroad trestle Simmons shoved her off of to her death.
I agree pretty much with everything Dale at QandO had to say about this decision, especially his final words: “It was never the Framers’ intention that the court become a judicial oligarchy with the power to legislate from the bench. The clear intent of the Framers was to provide a government where the will of the people prevailed. That is why we have a government with congressional supremacy. Congress wields substantial power over both the executive and legislative branches for precisely that reason.
Clearly, it’s time for congress to begin exercising their prerogative to bring the Supreme Court under control.
Pound The Table
Feb 19
I’ve not been following the saga of Jeff Gannon/James Gluckart very closely, but it does put me in the mind of the adventures of Benedick and Claudio. I realize a lot of people are upset, but just because you can think up a scenario doesn’t mean it’s even close to reality. If I was upset over Dan Rather’s fraudulent TNG story on Bush, and Eason Jordan’s claim that the military targets reporters and more importantly his revelation that CNN deliberately lied to the public in order to keep reporters in Iraq where they were in reality hostages, why am I not too concerned in this case? Read on McDuff.
Mr. Gannon is accused of asking biased and/or softball questions. Usually one question is cited, which was undeniably both biased and a softball. But if that is the measure, then a lot of journalists should also be drummed out of the corps. And that apparently wasn’t his typical question – although it may have been the one to bring on all the scrutiny.
Mr. Gannon is accused of being gay. OK, so that should somehow matter to getting a day pass? No, it’s the hypocrisy. According to John Aravosis of Americablog.org “The White House wouldn’t let him in the door right now, knowing of his background.” Umm, so there are no openly gay people working anywhere in the Whitehouse, let alone attend press briefings? I find that hard to believe, nor have I heard of any such policy. No, it’s the nude pictures and the possibility he was a gay escort. OK, so should the White House announce a list of prior activities based on moral issues as opposed to criminal ones that will proclude access to the White House (including press briefings) they will now investigate and enforce?
That’s the problem to me with this line of reasoning — are those upset honestly asking the White House to officially define who’s a journalist and who isn’t, and to enforce a morals test? Do they really want the White House investigating journalists to ensure their moral purity? Most journalists working the beat apparently don’t want that. Which makes me believe the critics are just looking for a stick to beat Bush with.
But wait, Gannon is really some sort of Rovian mole, a political operative in disguise. Yeah, like Stephanopolous, Mathews, and Russert, all of whom worked for Democratic office holders.
And those day pases – access to the White House baby. Which apparently you can get by providing some basic info like name and SSN coupled with the ability to show up early and wait for one. Kind of like how I got access to Congress a couple of summers ago – we showed up and waited. Interestingly enough, we could never get to the ticket office early enough to go up in Washington’s Monument, but we had no trouble getting access to Congress.
I’m sorry, but with all the real issues, both those within the media and those facing the country, I find it hard to get worked up about a guy with a checkerd past working (although not any longer) for a minor press outfit asking questions at press conferences 99.99% of the population of the country pay no attention to.
