The Wall Street Journal reported yesterday: The U.S. pay czar will cut in half the average compensation for 175 employees at firms receiving large sums of government aid, with the vast majority of salaries coming in under $500,000, according to people familiar with the government’s plans.

As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, is expected to issue his determinations today.

Professor Bainbridge explains just how outrageous, unconstitutional, and violative of fundamental principles of law the Obama Administration’s business decrees are.

There really ought to be more outrage about this proposal. As a letter to the editor in today’s WSJ (Wednesday, 10/21—the Journal does not archive Letters to the Editor, so Professor Bainbridge was remiss in failing to credit Peter Kirchman of Bay City, Michigan for this excellent contribution to the debate – DZ) aptly observed:

To those who would defend the government’s ability, justification and right to negate Ken Lewis’s contract and hijack his pay (“The Fall Guy,” Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough’s book “John Adams.” Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, “. . . if Parliament can take away Mr. Hancock’s wharf and Mr. Row’s wharf, they can take away your barn and my house.”

Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government’s pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?

The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration’s ability to reorder the American economy as it sees fit.

As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:

The rule of law, not of men—an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers—is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak. Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right? Until Chrysler. ... The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors—entitled to first priority payment under the “absolute priority rule”—have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.

And then Obama bullied GM’s bondholders to the extent that even the Obamabots on the Washington Post’s editorial board were moved to protest that “the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals.

Law and order can easily be over-rated in a society with the abundance of laws criminalizing all sorts of things, even orchids, as Bryan W. Walsh explains in the Washington Times.

“You don’t need to know. You can’t know.” That’s what Kathy Norris, a 60-year-old grandmother of eight, was told when she tried to ask court officials why, the day before, federal agents had subjected her home to a furious search.

The agents who spent half a day ransacking Mrs. Norris’ longtime home in Spring, Texas, answered no questions while they emptied file cabinets, pulled books off shelves, rifled through drawers and closets, and threw the contents on the floor.

The six agents, wearing SWAT gear and carrying weapons, were with – get this- the U.S. Fish and Wildlife Service.

Kathy and George Norris lived under the specter of a covert government investigation for almost six months before the government unsealed a secret indictment and revealed why the Fish and Wildlife Service had treated their family home as if it were a training base for suspected terrorists. Orchids.

That’s right. Orchids.

By March 2004, federal prosecutors were well on their way to turning 66-year-old retiree George Norris into an inmate in a federal penitentiary – based on his home-based business of cultivating, importing and selling orchids.

Mrs. Norris testified before the House Judiciary subcommittee on crime this summer. The hearing’s topic: the rapid and dangerous expansion of federal criminal law, an expansion that is often unprincipled and highly partisan.

Chairman Robert C. Scott, Virginia Democrat, and ranking member Louie Gohmert, Texas Republican, conducted a truly bipartisan hearing (a D.C. rarity this year).

These two leaders have begun giving voice to the increasing number of experts who worry about “overcriminalization.” Astronomical numbers of federal criminal laws lack specifics, can apply to almost anyone and fail to protect innocents by requiring substantial proof that an accused person acted with actual criminal intent.

Mr. Norris ended up spending almost two years in prison because he didn’t have the proper paperwork for some of the many orchids he imported. The orchids were all legal – but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty’s new restrictions on trade in flowers and other flora.

The judge who sentenced Mr. Norris had some advice for him and his wife: “Life sometimes presents us with lemons.” Their job was, yes, to “turn lemons into lemonade.”

The judge apparently failed to appreciate how difficult it is to run a successful lemonade stand when you’re an elderly diabetic with coronary complications, arthritis and Parkinson’s disease serving time in a federal penitentiary. If only Mr. Norris had been a Libyan terrorist, maybe some European official at least would have weighed in on his behalf to secure a health-based mercy release.

Krister Evertson, another victim of overcriminalization, told Congress, “What I have experienced in these past years is something that should scare you and all Americans.” He’s right. Evertson, a small-time entrepreneur and inventor, faced two separate federal prosecutions stemming from his work trying to develop clean-energy fuel cells.

The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had “abandoned” his fuel-cell materials – something he had no intention of doing – while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.

As George Washington University law professor Stephen Saltzburg testified at the House hearing, cases like these “illustrate about as well as you can illustrate the overreach of federal criminal law.”

Patrick, at Popehat, describes how Britain’s police these days protect young thugs by arresting old ladies with walkers for confronting them.

Renate Bowling, a 71 year old widow who escaped to the free world from East Germany, is now a common criminal. She had the poor judgment to “poke” a 17 year old hooligan who was part of a gang throwing rocks at her house. While in America or any other sane country Ms. Bowling would have been let off with a warning, Ms. Bowling is not so fortunate.

She has the bad luck to live in the world’s worst nanny state.

The Crown Prosecution Service today defended its decision to take legal proceedings against a 71-year-old woman who prodded a 17-year-old youth in the chest.

Renate Bowling, of Thornton Cleveleys, Lancashire, confronted the boy in the street after stones were thrown at her home. The disabled widow, who walks with a steel frame, said she thought it was a “joke” when police arrived at the scene and arrested her for jabbing the teenager with her finger.

While the Crown, which undoubtedly prosecuted this vicious criminal for the sake of the children, claims there was no evidence that the youth who received this vicious jabbing threw the rock, it ignores Ms. Bowling’s own account, in which she saw the boy standing in the street, in the direction from which the rocks had been thrown, and later hiding behind a wall. Ms. Bowling had to toddle out with her walker to confront the little monster. ...

What sort of country raises entitled young hooligans, who abuse old ladies by pelting them with stones and calling them “German whores”? Hooligans who run to the police when they’re beaten up by the old ladies? What sort of country tolerates, encourages, and condones this sort of behavior?

Hat tip to Will Wilson.

Roman Polanski

The director Roman Polanski is a significant artist of international stature. He is also 76 years old. More than 30 years ago, Polanski had sex with an underage girl in California. The judicial proceedings which took place at the time were improperly influenced by the superfluity of media attention focused on a famous Hollywood director entangled in a sex scandal.

Marina Zenovich’s 2008 documentary film Roman Polanski: Wanted and Desired made it generally known that Polanski accepted a plea bargain which put him behind bars in very unpleasant circumstances “for psychiatric evaluation” for 42 days in Chino State Prison. After which time, according to the deal made with prosecutors, Polanski was supposed to be let off without further incarceration.

Newspaper reports, however, inflamed public opinion about the case, and Judge Laurence Rittenband arbitrarily decided to void Polanski’s plea bargain and impose an exemplary sentence, essentially sacrificing the unlucky director for the gratification of the tabloid mob. Polanski was temporarily at large when he learned of the judge’s intentions, and prudently fled into exile in Europe.

Polanski was certainly guilty of a form of sexual misbehavior which, depending on the overall circumstances, can be prosecuted as a serious crime. But consensual sex with underage girls is only “rape” in a technical sense. Michelle Malkin is making a regrettable spectacle of herself striking ridiculous moralistic poses, calling Polanski a “perv,” and describing sensible persons disinclined to support wasting government time and resources on seeking pointless vengeance on an old man a generation after the fact “crime-coddling apologists.”

This kind of naive legal absolutism rests on a childish fantasy that human acts, their legal status, and the outcome of judicial proceedings are matters of black and white, that good people, like Michelle Malkin and the rest of us on the Right, are always in favor of enforcing the letter of the law. I’m not. Laws (like our immigration and drug laws) can be ill-considered. Courts are sometimes corrupt. They are sometimes mistaken. Laws can be wrongly or simply arbitrarily enforced. After 30 years, some laws are no longer worth enforcing, some cases are no longer worth punishing.

The young woman who had sex with Polanski, now middle-aged, has said publicly that she thought she was being exploited by the court at the time, that she forgives Polanski, and that she finds the idea of re-opening the case against him embarrassing to herself and her family. So whom do we need to be avenging?

Patterico, who actually works at the same Los Angeles District Attorney’s Office has gone even more loco with the same law-and-order zealotry.

He is raving about a conflict of interest in Anne Applebaum editorializing in favor of clemency in a stale and aged case involving an internationally renowned artist who is elderly, who has made significant cultural contributions, and who has himself been more than once a victim of terrible injustices. Anne Applebaum, you see, is married to Polish Foreign Minister Radek Sikorski. Polanski is a Pole, and Poland is protesting his arrest, so Patterico thinks her editorials need to be accompanied by a warning of undue influence from the Polish Government. Lord!

I personally think conservative righteousness, outrage, and pettyfogging argument is more appropriately reserved for graver issues than a case of Hollywood hanky-panky from thirty years in the past. And, until Utopia is achieved and we have a perfect legal system administered by angels, applying a flawless legal code in every case with precision accuracy and scrupulous evenhandedness, I think we can skip all the rah-rah law-and-order nonsense.

Sometimes the law is an ass. And the day the US undertook to extradite Roman Polanski over a roll in the hay that occurred during the opening days of the Consulship of Jimmy Carter is one of those times.

Andrew looks smug in his Atlantic logo illustration. It’s nice having friends in high places.

Remember George W. Bush?

We used to have a president so rigidly righteous that he actually refused to pardon Lewis Libby for defending his own administration and thus becoming the target of a special prosecutor and winding up convicted of perjury (in a case where no crime was really ever proven to have occurred) by a DC jury.

Now we have Barack Obama, who is not like that at all.

Intimidate voters, brandishing billy clubs in Philadelphia? You don’t get prosecuted if you were an Obama supporter. Eric Holder’s Justice Department will overrule career prosecutors for you.

Are you a governor or state official taking campaign contributions in exchange for contracts? If you’re a democrat, you are OK. Eric Holder’s Justice Department will drop the investigation.

Suppose you are a homosexual leftwing blogger, who also happens to be a non-US-citizen, in danger of getting into trouble with immigration if you are convicted of a misdemeanor for smoking marijuana on a Cape Cod Beach? You have a Get Out of Jail Free card, if you are, as Andrew Sullivan is, a faithful defender of Barack Obama and his policies. The US Attorney’s Office will go right on prosecuting non-Obama-supporting-bloggers coming before the court for the identical complaint, but will shock the court by giving you a special pass.

Andrew himself is declining to comment on the advice of counsel.

Boston Globe

Some News Agency

John Hinderaker has a comment.

In the Wall Street Journal, Dr. Richard B. Rafal argues that the legal profession should get its own share of “reform.”

Since we are moving toward socialism with ObamaCare, the time has come to do the same with other professions—especially lawyers. Physician committees can decide whether lawyers are necessary in any given situation. ...

Following are highlights of a proposed bill authorizing the dismantling of the current framework of law practice and instituting socialized legal care:...

Legal “DRGs.” Each potential legal situation will be assigned a relative value, and charges limited to this amount. Program participation and acceptance of this amount is mandatory, regardless of the number of hours spent on the matter. Government schedules of flat fees for each service, analogous to medicine’s Diagnosis Related Groups (DRGs), will be issued. For example, any divorce will have a set fee of, say, $1,000, regardless of its simplicity or complexity. This will eliminate shady hourly billing. Niggling fees such as $2 per page photocopied or faxed would disappear. Who else nickels-and-dimes you while at the same time charging hundreds of dollars per hour? I’m surprised lawyers don’t tack shipping and handling onto their bills.

 Legal “death panels.” Over 75? You will not be entitled to legal care for any matter. Why waste money on those who are only going to die soon? We can decrease utilization, save money and unclog the courts simultaneously. Grandma, you’re on your own.

Ration legal care. One may need to wait months to consult an attorney. Despite a perceived legal need, physician review panels or government bureaucrats may deem advice unnecessary. Possibly one may not get representation before court dates or deadlines. But that’ s tough: What do you want for “free”?

Physician controlled legal review. This is potentially the most exciting reform, with doctors leading committees for determining the necessity of all legal procedures and the fairness of attorney fees. ...

Electronic legal records. We should enter the digital age and computerize and centralize legal records nationwide. All files must be in a standard, preferably inconvenient, format and must be available to government agencies. A single database of judgments, court records, client files, etc. will decrease legal expenses. Anyone with Internet access will be able to search the database, eliminating unjustifiable fees charged by law firms for supposedly proprietary information, while fostering transparency. It will enable consumers to dump their clunker attorneys and transfer records easily. ...

New government oversight. Government overhead to manage the legal system will include a cabinet secretary, commissioners, ombudsmen, auditors, assistants, czars and departments.

Collect data about the supply of and demand for attorneys. Create a commission to study the diversity and geographic distribution of attorneys, with power to stipulate and enforce corrective actions to right imbalances. The more bureaucracy the better. One can never have too many eyes watching these sleazy sneaks.

Read the whole thing.

My class list has been obsessing over Skip Gates’s arrest in Cambridge for a couple of days. Most participants tended to agree that the Cambridge cop had not behaved unreasonably, but a few correspondents were inclined to contend that arguing with police and denouncing their presence and behavior should be considered First Amendment-protected instances of Free Speech.

Captain Brandon del Pozo of the NYPD discusses the Gates arrest from a professional police perspective on Crooked Timber, refuting, I think, effectively the Free Speech claim.

Whether or not a person should be arrested for disorderly conduct depends on subjective assessments that are nonetheless important to make. (more on discretion later) These include the extent to which the interaction is actually in public, the extent to which he has genuinely impeded the investigation by being verbally combative with an officer who needs to elicit investigative information from him, or created a situation of genuine public alarm, and, admittedly more controversially, the extent to which he fosters a climate wherein it’s acceptable for people to harass, berate and otherwise annoy the police as they are trying to conduct routine investigations that are in the interest of public safety. ...

The officer instructs the person to exit the house and talk on the porch. This is standard police safety practice. An unfamiliar building with unknown occupants that is the potential site of a burglary is not a safe place for an officer to enter, especially alone. If he is drawn into the home and attacked there, he can be locked in and will take longer to rescue. Kitchens have a variety of weapons, and rooms have limited sight lines and places for suspects to hide. Bringing a suspect to the porch is a prudent move for an officer.

The man knows what’s going on. He did, in fact, just force his own front door open. All accounts indicate the sergeant showed up moments later; the 911 caller personally informed him, in sum and substance, “he just went into the house a few seconds ago.” There is a continuity of events that indicates a reasonable person would understand why the police came to his door a few moments after he broke it open. The only thing that could indicate a race bias is the unobserved hypothetical that the police would not have been there if he was white. This doesn’t matter; for a homeowner of any race there is a facially plausible race-neutral reason why the police have come to the door.

Around this time, the person begins to accuse the officer of racism, at first refusing to cooperate with the investigation. This makes the investigation more difficult, and might make the officer wonder if he is safe. To assume Gates isn’t the type of man to use violence when he is angry and using obscenities is to emasculate him, or patronize him, or to resort to stereotypes based on age, stature, type of employment, etc. Anyway, early on, the sergeant concludes this man is not a burglar, but reports that the man continues to be verbally belligerent. ...

The police cannot be expected to leave a location simply because the person there is screaming at them and ordering them around, even if that person is apparently innocent and likely lives there. They should still thoroughly investigate. If this were a legitimate expectation of the police, then it would sometimes allow genuine criminals to berate cops into leaving the scene prior to a complete and thorough investigation of the crimes they have committed. Officers should leave when they are convinced that the investigation is complete, and that the situation is under control, regardless of the demeanor of a person.

The police need to foster an environment in which they can deliver public safety without being subject to obscenities, accusations and yelling from any party, even innocent parties. The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.

The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that “you don’t know who you’re messing with.” It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of “My daddy donated fifty million to this university, and you’ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.”

It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them who’s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.

It is in the civic interest for cops to have discretion over violations and some misdemeanors.

Stuart Taylor Jr. thinks that Sonia Sotomayor and her liberal colleagues made a deliberate effort to spike the Ricci case. He’s probably right.

(B)ut for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case—which ended up producing one of the Supreme Court’s most important race decisions in many years—had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice. ...

(A)ny 2nd Circuit judge who had chanced to find and read the panel’s summary order in Ricci would have found only the vaguest indication what the case was about.

Read the whole thing.

Sonia Sotomayor: Wrong Again

Sonia Sotomayor’s dismal record of Supreme Court reversals is worse by one more. It now stands 6 out of 7, with the Court, however, unanimously rejecting her argument in the single ruling that was upheld. Sotomayor’s reasoning in that case, however, was not merely rejected. It was scathingly described as “fl(ying) in the face of the statutory language.”

Stuart Taylor Jr. explains that on rejecting Sotomayor’s ruling this time the decision was not even close.

The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices—who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black—would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit—regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

It really ought to be a serious factor in the evaluation of a nominee for the Supreme Court that the person has compiled so consistent a record of decisions requiring reversal.

Ricci v. DeStefano

Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

Janós Blaschke, The Goddess Themis, 1786

Justice is conventionally depicted in countless engraved, painted, or sculpted representations displayed at courthouses and in judicial chambers at every administrative level around the European world in the form of the goddess known to the Greeks as Themis, to the Romans as Iustitia. Justice carries a sword and a balance, and is blindfolded.

Themis’ blindfold signifies not her lack of access to reality or to the facts of the cases she is adjudicating, but her indifference to persons or affiliations, her impartiality and objectivity. Themis was not the goddess of justice as an expression of human whim or desire, but of justice in accordance with the divine order.

Judge Sonia Sotomayor, in delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, expressed a very different, more contemporary view of justice.

Judge (Miriam) Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” ...

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ....

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. ...

[O]ne must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. ...

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

In her lecture, Judge Sotomayor acknowledges the existence of an ideal of impartiality, but implicitly rejects the concept of an objective legal or moral order. She additionally denies that human beings are really capable of impartiality and objectivity.

In the place of the Natural Law, which guided the Greeks and Romans and the framers of the United States, Sonia Sotomayer enshrines the left’s identity politics, its narrative of the victimhood of certain groups, its indifference or hostility to others. As a judge, Sotomayor denies the possibility of transcending human partiality and prejudice. Her openly expressed relativism denies that any real distinction between justice and injustice exists in any case.

In place of justice, “as circumstances and cases require,” Sotomayor proposes to substitute personal emotion.

Her cherished personal emotions, of course, amount really to ethnic and gender-based chauvinism combined with carefully cultivated group and class grievances. Instead of believing that judges should strive to emulate the divine, modern liberalism encourages its representatives in the judiciary to sink and become “all too human,” to be their worst, their most self-infatuated and partisan selves rather than to transcend their own prejudices and animosities. The liberal judge does not aspire to be a disinterested servant of the law. The liberal judge proposes to pursue the interests of groups or persons he or she feels to be specially deserving of advocacy and assistance.

Thomas Sowell describes how Judge Sotomayor’s jurisprudence actually works when applied in reality.

Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

In judging, better to have Themis than Thersites.

The US Supreme Court has reviewed six cases decided by Sonia Sotomayor. Her decisions were reversed five times, and in the only case in which her decision was upheld, her reasoning was unanimously rejected by the Court because it “flies in the face of the statutory language.”

Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.

No wonder liberals like Obama and Sotomayor think the Constitution is irrelevant and requires updating.

0:33 video

Hat tip to Ed Morrissey.

The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”

[D]espite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions—fixing typos and the like—rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge—maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.

Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive—not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system—as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”

You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.

Jeff Emmanuel, at Pajamas Media, warns that a recent federal appeals court decision affirming the right of state bureaucrats in Georgia, Florida, and Alabama to overrule physicians and deny care to patients covered by Medicaid prefigures the federal rationing of health care nationwide.

Earlier this month, a panel of the 11th U.S. Circuit Court of Appeals ruled in favor of three states that filed suit to have final medical decision-making authority transferred from doctors to state bureaucrats.

In March, as reported here at Pajamas Media, Georgia, Florida, and Alabama appealed U.S. District Judge Thomas Thrash’s ruling that physicians, not government bureaucrats, were qualified — both legally and medically — to decide what was “medically necessary” for their patients, regardless of bureaucrats’ opinions.

The thrust of the states’ argument in Moore was summed up in the amicus brief filed by the state of Florida, which said, “Treating physicians … cannot be trusted with this sort of decision. When left to their own devices, they advocate for their patients, and deem all manner of unproven, dangerous, ineffective, cosmetic, unnecessary, bizarre, and controversial treatments as ‘medically necessary.’”

The “final arbiter” of medical decisions is and should be “the state,” said attorney Robert Highsmith in March 24 oral arguments — and the panel of the 11th Circuit agreed.

As a result of this ruling, doctors within the 11th Circuit’s jurisdiction will no longer be “left to their own devices” to treat Medicaid patients under their care. However, current events suggest the relegation of medical professionals’ recommendations to the status of mere suggestions pending review by state bureaucrats isn’t likely to be limited to Medicaid cases alone for long.

As taxpayer-funded and bureaucrat-run health care programs like Medicaid and the State Children’s Health Insurance Program (SCHIP) are expanded to include more middle-class Americans, and as the federal government’s control over the health care market grows astronomically under the guise of “health care reform,” the issue of government encroachment on doctor-patient decisions will only increase.

Moore v. Medows

The District Court held that “[t]he state must provide for the amount of skilled nursing care which the Plaintiff’s treating physician deems necessary to correct or ameliorate her condition.” ... While it is true that, after the 1989 amendments to the Medicaid Act, the state must fund any medically necessary treatment that Anna C. Moore requires…, it does not follow that the state is wholly excluded from the process of determining what treatment is necessary. Instead, both the state and Moore’s physician have roles in determining what medical measures are necessary to “correct or ameliorate” Moore’s medical conditions…. The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.” (Citations omitted, emphasis added.)

Ethan Leib notes that Spain just began a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Meanwhile, the same Spain released a group of Somali pirates, declining prosecution because the offenses took place “2,000 kilometers away.”

It seems curious that the Spanish view of universal jurisdiction applies to Israel, the late General Pinochet, and officials of the Bush administration, but not to pirates, Especially considering the fact that the whole idea of extra-territorial jurisdiction arose in the first place to justify suppressing piracy.

Hat tip to Walter Olson.

Over the last few decades, the powerful impact of Conservatism on jurisprudential reasoning, both in law school publications and in judicial opinions, has caused progressives reluctantly to deal with original intent in Constitutional Law.

Jess Bravin, in the Wall Street Journal, reports on a fascinating new development, in which some liberals are considering a positive embrace of Constitutional Originalism philosophically.

A progressive originalism would reject the ruling of the Slaughter-Houses Cases of 1873 which limited the impact of the 14th Amendment’s guarantee of the “privileges or immunities” of individual citizens against the states.

The libertarian potential of such a move could be tremendous, and the conflict within the legal community on the left between an inclination to suppress States’ Rights while enhancing individual rights claims on the basis of the post-Civil War Amendments versus their love of regulation and generally enthusiastic embrace of the cult of Statism will be absolutely fascinating to watch unfold.

A must read.

Ben Smith, at the Politico blog, joins the conventional chorus of down-shouters, marginalizing everyone with doubts on the question of Barack Obama’s native born status as irrational conspiracy theorists.

Personally, I always experience a dramatic increase in skepticism when I observe the argument from intimidation underway. Whenever people point to a bien pensant media consensus as established and inarguable fact, I start looking around for the alternative theory.

As to Obama’s native born status, I’ve read Internet rumors that say his grandmother supposedly said some time somewhere that he was born in a hospital in Kenya, but I’ve never seen any form of reliable report confirming that.

I’m well aware, and support the fact, that the United States traditionally bases citizenship both on jus sanguinis (citizenship by right of blood descent) and jus soli (citizenship by right of birth on US soil). I also think that if a person elected to national office by 60-odd million votes as the result of a process as expensive, time-consuming, and elaborate as a US Presidential election were to be disqualified by an arcane, subsequently eliminated, technical and ill-conceived provision of 1960s era citizenship laws, that it would be a disaster.

But I do also think the law is the law, and Barack Obama’s citizenship status, which undoubtedly features a number of occasions for questions, ought to have been thoroughly and openly explored before the democrat party ever nominated him.

I think it is probable that democrat party member state officials in Hawaii are telling the truth, and Obama’s birth certificate is real, valid, and in proper order, but I also wonder, if that is the case, why has he spent more than $800,000 (at last count, which was some time ago), fighting lawsuits in numerous states to resist allowing it to be released.

Obama’s effort and expense at litigating only makes sense if there is something to hide. (In an earlier post, I suggested that perhaps he was really named Sue.)

Beyond the alleged birth in Kenya to a slightly underage US citizen mom, there are also obviously live possibilities of problems with conflicting dual citizenships held contrary to US law. Obama might very well have been adopted by Mr. Soetero. His admission to Indonesian schools apparently required Indonesian citizenship. If Obama lost his US citizenship by adoption as a juvenile, he would have had to take official steps later to restore it.

Obama could have in the past claimed to be a British subject by virtue of his father’s Kenyan nationality. It is reported that Obama travelled to Pakistan in 1981, at a time when US citizens were not allowed to enter the country. Those circumstances suggest he could have used a different passport at the time.

There can be no doubt that the national news reporting organizations allowed political partisanship to deter them from undertaking the questioning and scrutiny of the candidacy of Barack Obama that would normally be expected. It would not be hard to argue that, at this point, the country would be better off, our electoral processes better served, simply by averting our eyes from what is bound to be, at most, some technical disqualification, faced with plunging the country into an appalling and unprecedented leadership crisis (and perhaps making that idiot Biden president), but it is simply not true that no rational basis for skepticism of Barack Obama’s eligibility for office exists.
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Earlier posts.

Clarence Darrow believed in them as useful tools for selecting jurors. Deliberations quotes, and links, 1936 Esquire article.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics.

Hat tip to Walter Olson.

left:Ali al-Kurdi, Right: Mohammed el-Qahtani in Yemen jail

Susan J. Crawford, the convening authority for military commissions, Bob Woodward gleefully reports, has announced that she is unwilling to try Mohammed el-Qahtani (the intended 20th 9/11 hijacker who missed his flight) because interrogation techniques applied to him, including “sustained isolation, sleep deprivation, nudity and prolonged exposure to cold” impaired the poor chap’s health and thus amounted to torture.

Crawford . . . .said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

He says, if discomfort, embarrassment, and water poured on your face are torture, he was tortured himself.

Sustained isolation, sleep deprivation, nudity and prolonged exposure to cold I experienced in basic training. Waterboarding I experienced later during escape and invading training.

Here we have a Bush Administration official, with a long record of working for Dick Cheney, by the way, inhibited from prosecuting a principal participant in the worst attack on the United States in history costing the lives of 3000 innocent civilians
because she is willing to regard discomforts used in interrogation essentially identical to stresses endured by US military personnel in training as “torture.” Once Crawford is gone and some Obama appointee is in her place, we’ll have hairy Pathan mass murderers released because some corporal crushed their spirits with a cutting remark.

All this demonstrates that the Bush Administration approach of military commissions operating at Defense Department level in the full view of the domestic media and the humanitarian bien pensant left was always insane. The correct procedure was always minimum formality and drumhead courts martial for illegal combatants and captured terrorists under the immediate local US military authority followed by speedy dispatch to the Muslim Paradise at rope’s end.

Eugene Volokh discusses U.S. v. Arzberger a case in which a defendant charged with possession of child pornography when released on bail would previously have automatically lost his right to possess firearms simply by virtue of being accused of a federal crime.

The federal magistrate found that, D.C. v. Heller having recognized the existence of a Constitutionally-protected individual right, Due Process comes into play, and it becomes necessary for the Government to establish the existence of a public danger of such a defendant engaging in violent actions using firearms before his Right to Keep and Bear Arms may be infringed.

The US Constitution has begun returning from exile.

Yuma Sun:

The State Bar of Arizona is weighing whether to require new lawyers to swear they won’t let their views on someone’s sexual orientation affect their duty, a move foes said could force attorneys to represent clients whose view they find personally offensive.

Existing rules require an oath saying lawyers “will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care.” The plan being weighed by the bar’s board adds sexual orientation to that list.

Not signing the new oath, if it is adopted, is not an option: Attorneys cannot practice law in Arizona without being admitted to the bar.

The move has provoked severe objections from 31 attorneys who sent a letter to state bar President Ed Novak.

Tim Casey, one of those who is unhappy with the proposal, said it raises all sorts of issues. At the very least, he said, the wording “is so very vague it’s scary.” ...

Federal law and federal courts have spelled out that it is illegal to discriminate on the basis of race, religion, age and similar factors. The oath, Casey said, simply mirrors those laws, much in the in the same way that lawyers swear to uphold the state and federal constitutions.

Casey said any move to make sexual orientation one of these “protected classes” should be decided by lawmakers or courts, not by the board of the state bar. ...

Casey said he sees a broader agenda at work.

“There are people trying to make it difficult for professionals to exercise their religious convictions, their moral objections or their ethical objections in cases.”

So if a gay activist in Phoenix decides, for example, to sue the Catholic Church to force it to perform gay marriages, any individual attorney, regardless of his political, social, and religious views, could be forced to represent the complaintant under pain of penalties from the state bar.

Paul Moreno, at History News Network, discusses the left’s misuse of rights language as a means of disestablishing the natural rights enshrined in the US Constitution. It’s as if the left discovered a way to apply Gresham’s Economic Law to Constitutional Law: newly invented bogus rights inevitably quickly replace real natural rights in circulation.

In a 2001 interview on Chicago public radio, Obama lamented that “the Supreme Court never ventured into the issue of the redistribution of wealth.” The problem, he said, was that the court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.”

In this perhaps unguarded moment, Obama became one of the few liberal politicians candid enough to admit that the Constitution poses a fundamental obstacle to their agenda.

This is a popular theory in academic circles. It is the fundamental argument of Cass Sunstein, a colleague of Obama’s at the University of Chicago Law School (now on his way to Harvard), who is often mentioned as an Obama adviser and potential Supreme Court nominee, and the author of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We need it More than Ever.

The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” In his 1944 message to Congress, Roosevelt said that “our rights to life and liberty”—the negative liberty to which Obama referred, had “proved inadequate to assure us equality in the pursuit of happiness.” He claimed that “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights.” This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.

Of course, these are not “rights” at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term—but entitlements. From the founding until the twentieth century, the American regime assumed that government’s purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.

The New Deal is often described as a “constitutional revolution.” In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights. Roosevelt envisioned not a new constitution, but a new idea of what Sunstein calls “a nation’s constitutive commitments.”

As to this problem, Sunstein says that “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.”

Many of George W. Bush’s appointments to the federal bench were successfully blocked by democrats despite the former Republican majority, thanks to RINOs like John McCain. Now Obama’s victory opens the door for those bench seats and others opening in the near future to be filled with liberals.

The Washington Post reports democrats happily predicted a return to “balance on the courts,” i.e. liberal domination.

The federal judiciary is on the verge of a major shift when President-elect Barack Obama’s nominees take control of several of the nation’s most important appellate courts, legal scholars and political activists say. With the Supreme Court’s conservative direction unlikely to change anytime soon, it is the lower courts—which dispense almost all federal justice—where Obama can assert his greatest influence.

The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey. ...

Obama has a huge opportunity,” said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. “In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.” ...

Democrats, who successfully blocked some of President Bush’s 4th Circuit and other appellate nominees, said they will try to win Republicans’ support but made it clear that they will push for quick confirmations. ...

The circuit courts of appeals, which cover the nation’s 13 federal judicial circuits, decide more than 30,000 cases a year. The Supreme Court takes fewer than 100 new cases each year.

Control of the appellate courts has shifted with the party in power. Republicans controlled 64 percent of appellate judgeships in 1993, but President Bill Clinton, a Democrat, reduced that to 42 percent by 2001. Bush’s appointees have restored a 56 percent Republican majority of the total authorized judgeships.

With current and future vacancies and Congress likely to pass a bill to create 14 appellate judgeships, Obama is likely to reduce Republican appointees to 42 percent and boost Democrats from the 36 percent to 58 percent during his first term, said Russell Wheeler, a Brookings Institution scholar who studies federal courts.

The Wall Street Journal reports that a high percentage of the small number of pardons issued by George W. Bush so far have gone to ordinary people eager to regain the right to own firearms for sport or recreation.

On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent. But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.

President Bush has pardoned fewer people—171—than any president since World War II, with the exception of his father, who pardoned 74. Presidents don’t discuss their reasons for issuing pardons, with few exceptions. Nor do they tell petitioners why their wish was granted. The Justice Department’s “pardon attorney,” who reviews hundreds of petitions a year and recommends candidates to the president, had no comment.

Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts. In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon.

In one respect, Obama would be lucky if the Keyes and other lawsuits proved him ineligible: presidents evidently are not allowed to use email.

The Times reports that they would be confiscating his Blackberry and shutting down his email account.

Before he arrives at the White House, he will probably be forced to sign off. In addition to concerns about e-mail security, there is the Presidential Records Act, which puts his correspondence in the official record and ultimately up for public review, and the threat of subpoenas. A final decision has not been made on whether Obama could go against precedent and become the first e-mailing president, but aides said that was unlikely.

But would he be allowed to play on-line RPGs?

Philip J. Berg’s federal lawsuit challenging Barack Obama to document his US citizenship was dismissed last month in Philadelphia on the grounds that the plaintiff lacked standing.

Now, Alan Keyes, who does possess standing, having himself appeared on the California ballot this year as candidate for president of the American Independent Party, is suing the Secretary of State of California in Superior Court in Sacramento, asking the court to order that she refrain from certifying the election of the democrat party’s individual presidential electors until Barack Obama provides proof of his eligibility with respect to citizenship for the presidency.

Keyes v. Bowen pdf

In case Senator Obama cannot present proper documentation verifying his citizenship, he cannot be elected President of the United States, and SOS (Secretary of State) has a duty to bar the casting of votes by California Electors in support of his candidacy.

84. Based on all of the above, it is the duty of the SOS to obtain proper documentation of Senator Obama’s citizenship to confirm his eligibility for the office of the President of the United States.

If Keyes, Berg, et. al. are correct in their suspicions, it appears that Americans will have inadvertently elected Joseph Biden president.

The mainstream media treated Joe the Plumber having a tax lien as a matter of national interest. But, as Jim Lindgren points out at Volokh Conspiracy, obvious ethics violations by a certain former Illinois state legislator are considered unworthy of attention.

The Illinois Governmental Ethics Act (apparently last changed in 1995) provides:

(5 ILCS 420/2-110)

Sec. 2-110. Honoraria.

(a) No member of the General Assembly shall accept any honorarium.

(b) As used in this Section:

“Honorarium” means a payment of money to a member of the General Assembly for an appearance or speech.

and

But State Senator Obama reported accepting honoraria on his 2000 and 2002 tax returns:

2000: On his 2000 Schedule C-EZ, Barack reported that he received $16,500 as a “Foundation director/Educational speaker.”

2002: On his 2002 Schedule C, Barack reported $34,491 for “LEGAL SERVCES / SPEAKING FEES.”

Daily Mail

The Telegraph reports another inversion of the rule of law in contemporary Britain.

A gardener who fenced off his allotment patch with a single strand of barbed wire to protect it from thieves has been ordered to take it down in case intruders hurt themselves.

Bill Malcolm, 61, was told to “remove it on health and safety grounds” by the local council, which owns the allotments.

He erected the deterrent after thieves struck three times in four months, stealing more than £300 worth of spades, forks, hoes and wrecking his potato patch in the process.

But officials instructed Mr Malcolm to remove the waist-high wire from his plot at Round Hill Allotments in Marlbrook, Worcs.

He said: “It’s an absolutely ridiculous situation, all I wanted was to protect my property but the wire had to go in case a thief scratched himself.

“The council said they were unhappy about the precautions I had made but my response was to tell them that only someone climbing over on to my allotment could possibly hurt themselves.

“They shouldn’t be trespassing in the first place but the council apologised and said they didn’t want to be sued by a wounded thief.

Or maybe you won’t have to. A jury in Britain last Wednesday, encouraged by extreme partisan testimony from chief fraudster James Hansen himself, exonerated Greenpeace vigilantes who vandalized a coal-fired powerplant.

The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.

Jurors accepted defence arguments that the six had a “lawful excuse” to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of “lawful excuse” under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire.

The not-guilty verdict, delivered after two days and greeted with cheers in the courtroom, raises the stakes for the most pressing issue on Britain’s green agenda and could encourage further direct action.

————————————————————————
How could any jury reach such a preposterous conclusion? Testimony from witch doctors on top of a prolonged steady diet of false information from the mainstream media, as in this typical example from the Telegraph.

Recent events have seen the scare campaign over global warming descend to the level of a Monty Python sketch.

Much publicity was given, for instance, to Lewis Gordon Pugh, who set out to paddle a kayak to the Pole to demonstrate the vanishing of the Arctic ice. At 80.5 degrees north, still 600 miles short of his goal, he met with ice so thick that he and his fossil-fuelled support ship had to turn back.

But this did not prevent him receiving a congratulatory call from Gordon Brown, nor boasting that he had travelled “further north than anyone has kayaked so far”.

It took the admirable Watts Up With That blog, run by the American meteorologist Anthony Watts, to point out that in 1893 the Norwegian explorer Fridtjof Nansen found the Arctic so ice-free that he was able to kayak above 82 degrees north, 100 miles nearer the Pole than our hapless campaigner against “unprecedented global warming”.

During time of war, the Ancient Romans closed the doors of the Temple of Janus, symbolizing the cessation of normal operation of of the Law during war-time.

Barack Obama fought back against Sarah Palin’s convention speech attack yesterday, but just look at Obama’s idea of an effective counter-offense.

Jake Tapper:

“I have said repeatedly that there should be no contradiction between keeping America safe and secure and respecting our Constitution,” Obama said. “During the Republican convention, you remember during the Republican convention, one of them, I don’t know if it was Rudy or Palin … they said, ‘Well, ya know, Sen. Obama is less interested in protecting you from terrorists than … reading them their rights.’”

(It was Palin, who said “Al Qaeda terrorists still plot to inflict catastrophic harm on America—he’s worried that someone won’t read them their rights?”)

“Now, let me say this,” Obama continued, “first of all, you don’t even get to read them their rights until you catch them. So, I don’t know what, they should spend more time trying to catch Osama bin Laden and we can worry about the next steps later. Hah! I mean, seriously! These folks.

“Catch ‘em first!”

Obama said his position on this “has always been clear. It has always been clear. If you’ve got a terrorist, take ‘em out. Take ‘em out. Anybody who was involved in 9/11 –- take ‘em out.”

But, the former constitutional law professor argued, “What I have also said is this: that when you suspend habeas corpus—which has been a principle, dating before even our country, it’s the foundation of Anglo-American law—which says, very simply, if the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ and say, ‘Maybe you’ve got the wrong person.’

“The reason you have that safeguard,” he said, “is because we don’t always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

“The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are,” Obama said as the crowd rose to its feet, applauding. “That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!

Rather than demonstrating Obama’s appreciation of the American Constitution and its roots in Magna Carta and the English Common Law, Barack Obama is really proving the incapacity of the American liberal establishment, including most conspicuously himself, to understand the most elementary distinctions in law, or to remember as far back in time as Vietnam, Korea, or WWII.

Being liberal means having so little respect for tradition and the past that the current armed conflict must be treated by liberals as if it was the first such crisis in human history. From the liberal perspective (which is shared, I must admit, to a very large extent by the current administration), we must invent new policies and procedures for functioning in time of war. Never before, it seems, in the history of the United States have US forces actually dealt with enemy prisoners or illegal combatants.

Obama, and the rest of the American intelligentsia, is oblivious to the fundamental chasm between domestic civilian life and the very different and distinct regime of war. As the engraving above illustrates, the same distinction long predates habeas corpus, Magna Carta, and the Common Law of England. In the time of the Roman Republic, the principle of Inter arma, silent leges (“The laws are silent during the clash of arms.”) was well understood. The Romans closed the doors of the Temple of Janus during war-time to signal the inaccessibility of divine justice when Roman soldiers were fighting for their fatherland in the field.

No contradiction in supposing that habeas corpus, all the rights and immunities of American citizenship, all the protections of our system of laws, attorney representation and jury trials pertain to enemies of the United States captured overseas bearing arms against US forces and operating in open and flagrant violation of the customs and usages of war?

The notion that latrunculi. armed criminals taken prisoner in the course of their attempting to kill US soldiers, persons representing no country, wearing no uniform, and operating under no lawful authority or command, and routinely violating the laws and customs of war should be considered to have the same rights as a US citizen charged domestically with a crime is completely impractical and totally insane.

Obama’s position is intrinsically self-contradictory. On the one hand, we are apparently perfectly entitled to “take out” Osama bin Laden and persons involved in 9/11. But if US forces reduce to possession alive a bearded jhadi with AK-47 in hand, who moments earlier hurled a grenade at them, it’s time to Mirandize him and give him the phone number of Ron Kubbe. Are we to assume that issues of possible error and uncertainty and all the necessity for proof and assurance required in the case of ordinary illegal combatants vanishes in relation to persons believed to have been “involved” with 9/11?

The University of Chicago Law School should never have hired Obama. His understanding of the limits of the Law is defective, and he is not even sensitive to the grossest sorts of contradiction in his own theory.

Prince George County, Maryland police violated a warrant they were serving for the questionable arrest of the wife of the mayor of Berwyn Heights by staging a SWAT team raid and carrying out an utterly unnecessary forced entry. Two friendly Labrador retrievers were shot dead, and two respectable people were manhandled and manacled for hours.

Baltimore Sun story.

The training and culture of law enforcement has gone outrageously astray in this country.

Remember the federal officers who came to collect Elian Gonzalez equipped with machine guns, wearing tanker helmets and loaded down with paramilitary gear?

Preposterously excessive force, a systematic kind of cringing cowardice expressed by the mentality that sends paramilitary SWAT teams armed with automatic weapons to kick in doors and make arrests of people who’d come down to the police department if contacted by telephone, the overly-prudential point of view that insists on strip searches and manacles for non-violent middle-class members of the public has become typical of today’s police.

It’s been going on for decades. I can remember marveling in Brookfield, Connecticut, years ago, stopping one evening at a fast food joint and seeing a local cop on his dinner break toting around one of those 9mm Beretta semiautomatics and five, count them, five! extra 15-round magazines on his belt. Has anyone ever actually fired upon a police officer in the 200+ year history of Brookfield? I wondered at the time. And was there currently reason to expect a Zulu impi to come over the hill and attack? Why would a local cop possibly need to be carrying 90 rounds of ammunition? That many cartridges are heavy.

I decided back in the early 1990s to get a Connecticut pistol permit. The process required me to stop by the local Newtown police station to pick up a form. Imagine my surprise, when I found the police barricaded away, inaccessible to the dangerous public of upper middle-class suburban Fairfield County, behind locked doors. One communicated with a secretary in a booth protected by bulletproof glass, passing papers back and forth in one of those sliding bank trays. Obviously, Newtown’s police officers led a life of constant fear.

I grew up in a family with many members who were working or had worked in law enforcement. The kind of men who became policemen in the old days were not afraid of criminals. They knew that they were tough and they knew just how uncommon men like themselves were. They knew most criminals are cowardly scum, and incompetent screw-ups to boot. The human being who will initiate violence is rare, and the human being who will initiate violence against a man in authority recognizably skilled at violence is even rarer.

The kind of men who used to become police officers were adequately armed with a .38 revolver or even just a nightstick. My father, working as a Marine Corps MP, and armed only with a nightstick, placed a dozen men under arrest and marched them off to the brig. He told them he knew perfectly well there were enough to them to overcome him, but he promised that he’d kill the first one or two who tried. They submitted to arrest.

The Texas Rangers used to boast of a necessary ratio of “one riot, one Ranger.” And the Pennsylvania State Police long had the same policy of sending a single State Trooper to suppress a civil disturbance or quell a mob.

Today, they send jack-booted Storm Troopers armed with machine guns to bring in 8 year olds.

Contemporary law enforcement culture is a disgrace and a genuine public hazard and it needs to change. They should dissolve every single SWAT team, get rid of every single item of paramilitary equipage, and—of course—end drug prohibition and the accompanying crime epidemic providing most of the excuse for the militarization of US law enforcement.

The Washington Post tells us that liberals are suffering from SCOTUS envy.

It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce.

They want their own Antonin Scalia. Or rather, an anti-Scalia, an individual who can easily articulate a liberal interpretation of the Constitution, offer a quick sound bite and be prepared to mix it up with conservative activists beyond the marble and red velvet of the Supreme Court. ...

as the Supreme Court takes its traditional spot in the background of the presidential campaign, there is a longing on the left for a justice who would energize not only the court’s liberal wing, but also the debate over interpreting the Constitution.

“Someone with vision,” said Doug Kendall, who recently helped found a new liberal think tank called the Constitutional Accountability Center. “Someone who looks hard at the text and history of the Constitution, as Justice Scalia does, and articulates a very clear idea of how that text points to liberal and progressive outcomes.”

“It is a court with no true liberal on it, the most conservative court in 75 years,” said Geoffrey Stone, a law professor at the University of Chicago, where Obama once taught constitutional law. “What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it.”

Stephen Breyer, Ruth Bader Ginsburg, and David Souter aren’t liberals?

Heck, liberals don’t even need to win presidential elections to get liberal Supreme Court Justices appointed. Conservative Republican presidents will appoint some for them.

Speaking more seriously, though, I think our friends on the left are missing the point. They are on the defensive on the Court, not really because of a paucity of kindred spirits, but because they have, for decades, been losing the battle of ideas in jurisprudence and Constitutional Law at the law schools and in the law journals.

Face it, what liberals really want is a return to an uncritical era of legal intuitions, emanations, and emotional sloganeering. They want the William O. Douglas and Earl Warren kind of “no brainer” liberal court decisions which merely use a few orotund generalities to raise the consensus of the liberal elite to the status of law of the land.

Liberal woolymindedness reaches even more impressive depths of absurdity in Britain than in the US, as we see when prominent Al Qaeda terrorists cannot be extradited to any of a variety of countries anxious to try and punish him, and an impotent justice system can do no better than house arrest.

So scrupulous in protecting the interests of terrorist is British justice that newspapers like The Guardian are forbidden even to name the beneficiary of this systematic insanity.

The hiding place of a leading terror suspect was inadvertently released by Justice Ministry officials last night after he was freed from jail under unprecedented bail conditions. The man, who can be identified only as U, was released from Long Lartin, Worcestershire, after the appeal court ruled there was no reason to hold him indefinitely as he could not be deported to his native Algeria.

The media has been prohibited from publishing his address, or even identifying the town where he is to reside. When the Ministry of Justice supplied journalists with copies of his bail conditions, however, the document included his exact address in the south-east of England. ...

U settled in Britain in 1994 and moved to Afghanistan two years later, where he is said to have forged links with Osama bin Laden. He is accused of presiding over a pre-9/11 al-Qaida network of north African terrorists who trained in Afghanistan in the mid-90s, and has links with men convicted of offences in this country and abroad. Ahmed Ressam, convicted of a plot to blow up Los Angeles International airport on New Year’s Eve 1999, was carrying U’s telephone number when he was arrested with 60kg (130lb) of explosives on the Canadian-US border.

Attempts to extradite U to the US collapsed when Ressam refused to give evidence against him. Prosecutors in France and Germany said telephone intercept evidence indicated U was the driving force behind a plot to bomb a Christmas market in Strasbourg the following year.

The Counterterrorism Blog, of course, operates outside the United Kingdom, and therefore is free to identify the lucky jihadist as Abu Doha.
————————————————
The Independent:

Among those who became a regular visitor to the Four Feathers and to the Finsbury Park mosque in north London was Abu “The Doctor” Doha, who has since been identified as al-Qa’ida’s main recruiter in Europe. Mr Doha, now 37, was a senior figure in an Algerian terror group called the Salafist Group for Call and Combat (GSPC).

According to the head of the French internal security service, the Direction de la Surveillance du Territoire (DST), Pierre de Bousquet de Florian, Mr Doha’s arrest at Heathrow airport in February 2001 as he tried to board a flight to Saudi Arabia came “a little too late”. Mr Doha, he said, was the “principal catalyst” in establishing a network of Islamic terrorists in London.

Before the Algerian was arrested, he organised travel for recruits to al-Qa’ida’s camps in Chechnya and Afghanistan where training included the production of chemical weapons, such as ricin. The recruits have since formed Europe-based cells, financed by fraud and adept at creating false travel documents.

London disciples of Mr Qatada and Mr Doha included Djamel Beghal, a French- Algerian since arrested for masterminding a plot to blow up the US Embassy in Paris, and Zacarias Moussaoui, a French-Moroccan held in America as the “20th hijacker”, suspected of planning to take part in the 11 September attacks.

Randy Barnett, in today’s Wall Street Journal, relishes the results of Heller, and praises Justice Scalia’s work. I love his editorial’s title, which constitutes all by itself an absolutely devastating rejoinder to the jurisprudence of people like Justices Stevens and Breyer.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

Ilya Somin, at Volokh Conspiracy, advises Gun rights supporters not to rejoice too soon.

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a “collective right” protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice.

Read the whole thing.

As predicted, Justice Scalia wrote the majority opinion in District of Columbia v. Heller, which was naturally decided by Justice Anthony Kennedy in his capacity as decisive swing vote.

On first glance, I would say that the Court’s ruling primarily represents a strong rebuke to intellectually farcical sophistry and the kinds of whimsical and creative legal analysis which divorce themselves from the Constitution’s historical background, the expressed views and intentions of the framers, commentaries on the Constitution, and the entirety of history before 1932.

Justice Scalia writes at length, and with ill-concealed contempt, for efforts to eliminate the individual right to keep and bear arms by facile manipulation of the prefatory “well-regulated militia” clause, happily following the jurisprudential practice of recent decades of including a thorough and comprehensive survey of the relevant history.

And he concludes:

There seems to us no doubt, on the basis of both the text and history, that the Second Amendment conferred an individual right to keep and bear arms.

But, no sooner does Justice Scalia arrive at his bold conclusion than he begins retreating from its implications and striving actively to limit its practical consequences.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ...

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of smallarms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

In the end, the ruling merely affirms the existence of the individual right to keep and bears arms, and strikes down the District of Columbia’s ban on handgun possession in the home and its requirement that lawful firearms kept in a home be inoperable. It specifically declines to address licensing requirements (which Heller failed to challenge). Insofar as the Court affirms a right of self defense, it has done so only with respect to one’s home.

The moderation of Scalia’s opinion is likely to make its power as a decision stronger rather than weaker though, and District of Columbia v. Heller signals a major reversal in the direction of Constitutional Law at the Supreme Court level.

While we’re waiting for the Supreme Court decision in Heller, Larrey Anderson, at American Thinker, has a bit of fun applying ordinary language philosophy to the oh-so-inscrutable meaning of the Second Amendment.

It is depressing to imagine how a Court which finds execution by lethal injection for child rape violative of the cruel and unusual punishments clause of the 8th Amendment is capable of reading the Second Amendment.

Tom Goldstein at the SCOTUS blog:

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. ... So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

It would certainly be nice if he’s right.

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. ...

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

National Review is calling for him to do so, to “debunk” some rumors I’ve never heard before myself.

Rumor one: Obama was born in Kenya. Rather unlikely, as it would require everyone in his family to lie about this in every interview and discussion with those outside the family since young Obama appeared on the scene. However, if it were true, it would probably raise a major question of “does he qualify as a natural-born citizen”? If Obama were born outside the United States, one could argue that he would not meet the legal definition of natural-born citizen under because U.S. law at the time of his birth required his natural-born parent (his mother) to have resided in the United States for “ten years, at least five of which had to be after the age of 16.”

Ann Dunham was 18 when Obama was born – so she wouldn’t have met the requirement of five years after the age of 16.

(Interestingly, apparently there isn’t much paperwork on Obama’s parents’ marriage. Obama: From Promise to Power, page. 27: “Obama later confessed that he never searched for the government documents on the marriage, although Madelyn (Obama’s maternal grandmother) insisted they were legally married.” Also note that Obama’s father apparently was not legally divorced from his first wife back in Kenya at the time, a point of contention that ultimately led to their separation.)

Rumor Two: Obama’s middle name is not “Hussein” but “Muhammad.” ...

Rumor Three: His mother did not want to name him after his father, and his birth certificate says “Barry.” Perhaps the most plausible of the rumors, as Obama was known by that name through much of his childhood and young adulthood. If true, this would spur a new round of “When Barry Became Barack” stories – a minor headache for the campaign, but hardly a major scandal.

Three could be true, I suppose, but I doubt it would be all that damaging if proven.

Two does not seem very likely.

And, as for One, my own understanding is that the US law is currently based on both jus sanguinis and jus soli. At the present time, if you’re born in the United States, you are automatically a citizen, and any child of a US citizen is a citizen. But the NR author may be correct: back in 1961, the Immigration and Nationality Act of 1952 would have been the ruling law and it might have contained some residency provision. I’m still looking for a functioning on-line copy of the text. Maybe I’m having problems getting one site to load because so many democrats are also trying to read it.

Peter J. Wirs points out that the DNC Rules Committee’s artificial assignment of Michigan delegate votes to Barack Obama (who did not even run in that state’s primary) may not be as easy to pull off as the power brokers in that party’s back room supposed.

The democrat bosses forgot that federal election law exists. Hillary’s side has recourse, and it looks like Arlen Specter may be preparing to give her a hand.

This past Saturday, the Democratic National Committee Rules Committee voted, as many anticipated, on seating the Florida and Michigan Democratic delegates with only half of vote. Moreover, 59 Michigan delegates were awarded to Barak Obama, notwithstanding he was not on the January 15 Michigan primary ballot. As Clinton adviser and Rules committee member Harold Ickes asserted, the outcome for Michigan was a hijacking of voters’ intent because it assigned delegates to Mr. Obama even though he did not win them.

As we reported last week, Senator Arlen Specter (R-PA), the former chairman and now ranking minority member on the Senate Judiciary Committee, is seriously evaluating whether he should call for Congressional hearings. ...

Specter, probably one of the most legally astute of GOP Senators, contends the DNC is violating one of the most fundamental of all constitutional rules, that once a vote is cast it must be counted. This constitutional principle, pronounced by the United States Supreme Court since Ex parte Yarborough (1884) and reiterated as recently as Gray v. Sanders (1963), is simply beyond reproach. This rock-bottom constitutional demand applies to primaries as well as general elections. ...

No one is disputing the Democrats have every right to set what its rules are and how its delegates are to be selected.

But once the Democrats evoke the state’s machinery in order to hold a public primary, a bright line is crossed. As the Supreme Court in Gray v. Saunders observed state regulated party primaries “show that the State . . . collaborates in the conduct of the primary, and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the State.” Grey v. Saunders went on to assert that “state regulation of this preliminary phase of the election process makes it state action.”

The issue isn’t that the DNC is asserting some “for members only” admission to a clubhouse. The issue is that the Great States of Florida and Michigan held primaries, which although concerning one or another of our two major political parties, is part of the electoral process. These primaries weren’t private affairs. They weren’t even party affairs. They were official state actions. The DNC was acting by virtue of the power delegated to it by the legislatures of both Florida and Michigan. The taxpayers of both Florida and Michigan, not the DNC, paid for the primaries. If the DNC wants to exclude voters, or count only half of the votes cast, or award Obama delegates he did not win, then they should hold private affairs (like that San Francisco cocktail reception where Obama asserts most of us are bitter by virtue of believing in God). Let them sell tickets and pay for the events themselves. ...

when I go to the polls to vote, I don’t want someone to cancel or dilute my vote. I expect my vote to be count as one vote, nothing more, nothing less.

Don’t think that saying “Gay Marriage isn’t real marriage” could get you into trouble one day?

Just give it time. Over in Europe, where political correctness is always just a step or two ahead, the Guardian reports that calling Scientology “a cult” is currently treated as a crime in Britain.

A teenager is facing prosecution for using the word “cult” to describe the Church of Scientology.

The unnamed 15-year-old was served the summons by City of London police when he took part in a peaceful demonstration opposite the London headquarters of the controversial religion.

Officers confiscated a placard with the word “cult” on it from the youth, who is under 18, and a case file has been sent to the Crown Prosecution Service.

A date has not yet been set for him to appear in court. ...

The incident happened during a protest against the Church of Scientology on May 10. Demonstrators from the anti-Scientology group, Anonymous, who were outside the church’s £23m headquarters near St Paul’s cathedral, were banned by police from describing Scientology as a cult by police because it was “abusive and insulting”.

Writing on an anti-Scientology website, the teenager facing court said: “I brought a sign to the May 10th protest that said: ‘Scientology is not a religion, it is a dangerous cult.’

“’Within five minutes of arriving I was told by a member of the police that I was not allowed to use that word, and that the final decision would be made by the inspector.”

A policewoman later read him section five of the Public Order Act and “strongly advised” him to remove the sign. The section prohibits signs which have representations or words which are threatening, abusive or insulting.

The teenager refused to back down, quoting a 1984 high court ruling from Mr Justice Latey, in which he described the Church of Scientology as a “cult” which was “corrupt, sinister and dangerous”.

After the exchange, a policewoman handed him a court summons and removed his sign.

In Germany, on the other hand, they’ll probably arrest you if you say that Scientology isn’t a cult.
——————————————————————————-

Hat tip to Little Baby Ginn at DBKP.

David Benkof notes that Gay Marriage is not simply some sort of private, self-regarding kind of thing. Legalized Gay Marriage is about forcing other people to recognize these relationships as valid, legitimate, and equal, and can potentially involve serious legal consequences to those who disagree, including churches and newspapers.

Although California marriage-equality leaders won’t say what impact they expect the new decision to have on religious freedom, activists in other states haven’t been so shy.

A representative of the largest Michigan gay-rights group, known as the Triangle Foundation, and openly gay Washington State Sen. Ed Murray both told me that any person who continues to conduct himself as if what he thinks is God’s definition of marriage is correct, instead of the gay community’s definition, should be fined, fired and even jailed until he relents.

“If you are a public accommodation and you are open to anyone on Main Street that means you must be open to everyone on Main Street. If they don’t do it, that’s contempt and they will go to jail,” says the Triangle Foundation’s Sean Kososky.

Sharon Malheiro, a lawyer and LGBT activist from Des Moines affiliated with the state’s gay-marriage lobby, ONE-IOWA, told me that if a teacher in a marriage-equality state taught that marriage is between a man and a woman, “then it becomes a job performance issue” and the school district should take appropriate action.

Michael Taylor-Judd, the president of the Legal Marriage Alliance of Washington state, said if a newspaper writes that a given same-sex marriage wasn’t really a marriage, “it is certainly in the realm of possibility for someone to bring a [libel] suit, and quite possibly to be successful.”

The Triangle Foundation’s Kososky agreed: “I would be sympathetic to some damages.”

Now, no lesbian in history has lost her assets, her job, or her freedom for writing, teaching, and running her business guided by her belief that marriage is a union of any two individuals who love each other.

So why do gay activists outside California support limitations on the freedom of speech, the press, and religious expression for anyone who disagrees with them? And why won’t California marriage-equality activists go on the record with their opinions on this vital issue?

This new ruling doesn’t only harm traditionally religious people. It poses a serious danger to the well-being of children.

After four Massachusetts judges imposed this change on their state, Boston’s Catholic Charities was given the choice of treating couples without both a mother and a father the same as more traditional couples, or getting out of the adoption business altogether.

The well-regarded agency felt it had no choice but to shut down – which means there are children in the Bay State who do not have the mother and father they could have had if gay activists hadn’t been so strident.

He’s right. It is not difficult in the least to picture Gay Rights Organizations suing Catholic dioceses, demanding that Catholic Churches perform Gay Marriages. It’s just one more step down the same path.

In 1857, Chief Justice Roger B. Taney applied his judicial powers to conclude once and for all the vexatious arguments about the extension of Slavery to the the Western territories which had persisted since 1820. In Dred Scott v. Sandiford , he ruled that persons of African descent could never be US citizens, slaves could not sue in court, and Congress had power to exclude Slavery from the territories. So there. The result, of course, was the Civil War.

The Wall Street Journal editorializes today on the folly of judges usurping the decision-making power of the people as a whole.

Judges invent wedge issues. Always have. As with California’s Supreme Court, many of the berobed judiciary take it as their solemn duty to do the people’s thinking for them on the modern world’s most difficult and divisive social issues. So it was with Roe v. Wade, when the U.S. Supreme Court declared 50 state legislatures irrelevant. The aftermath has been more than 30 years of the abortion wars.

California’s Supreme Court is not the law of the land, but its 4-3 ruling, titled “In re Marriage Cases” for six consolidated appeals, explicitly told both the state’s voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a “marriage” between man and woman.

Now comes the court. In the court’s words: “[T]he core set of basic substantive [court’s emphasis] legal rights and attributes traditionally associated with marriage . . . are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” This rule by judicial decree could hardly be clearer. What is also clear is that judges should again be an election issue.

The school of thought which holds that the American people should cheerfully accede to whatever social world unelected judges design for them is Democratic orthodoxy. ...

The gay community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.

Eugene Volokh explains how legislation banning sexual orientation discrimination in Masasachusetts, Vermont, and California was then taken by their highest courts to constitute a new basis for interpreting their state constitutions. The California decision notes:

This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation.

The London Times reports, 4/26, on another ethical breakthrough in the home of the cuckoo clock.

Under a new Swiss law enshrining rights for animals, dog owners will require a qualification, anglers will take lessons in compassion and horses will go only in twos.

From guinea-pigs to budgerigars, any animal classified as a “social species” will be a victim of abuse if it does not cohabit, or at least have contact, with others of its own kind.

The new regulation stipulates that aquariums for pet fish should not be transparent on all sides and that owners must make sure that the natural cycle of day and night is maintained in terms of light. Goldfish are considered social animals, or Gruppentiere in German.

The creator of this animal Utopia is the Swiss federal parliament, the Bundesrat, which adopted a law this week extending to four legs the kind of rights usually reserved for two. The law, which comes into force from September 1, is particularly strict over dogs: prospective owners will have to pay for and complete a two-part course — a theory section on the needs and wishes of the animal, and a practice section, where students will be instructed in how to walk their dog and react to various situations that might arise during the process. The details of the courses are yet to be fixed, but they are likely to comprise about five theory lessons and at least five sessions “in the field”.

The law extends to unlikely regions of the animal kingdom.

Anglers will also be required to complete a course on catching fish humanely, with the Government citing studies indicating that fish can suffer too.

The regulations will affect farmers, who will no longer be allowed to tether horses, sheep and goats, nor keep pigs and cows in areas with hard floors.

The legislation even mentions the appropriate keeping of rhinoceroses, although it was not clear immediately how many, if any, were being kept as pets in Switzerland.

Also in Switzerland: Rights for Vegetables

Happy new rights-holder in the Helvetic Republic

Wesley J. Smith, in the Weekly Standard, reports on Europe’s latest ethical breakthrough which extends liberal egalitarianism not merely beyond our own species, but beyond our own Kingdom.

You just knew it was coming: At the request of the Swiss government, an ethics panel has weighed in on the “dignity” of plants and opined that the arbitrary killing of flora is morally wrong. This is no hoax. The concept of what could be called “plant rights” is being seriously debated.

A few years ago the Swiss added to their national constitution a provision requiring “account to be taken of the dignity of creation when handling animals, plants and other organisms.” No one knew exactly what it meant, so they asked the Swiss Federal Ethics Committee on Non-Human Biotechnology to figure it out. The resulting report, “The Dignity of Living Beings with Regard to Plants,” is enough to short circuit the brain.

A “clear majority” of the panel adopted what it called a “biocentric” moral view, meaning that “living organisms should be considered morally for their own sake because they are alive.” Thus, the panel determined that we cannot claim “absolute ownership” over plants and, moreover, that “individual plants have an inherent worth.” This means that “we may not use them just as we please, even if the plant community is not in danger, or if our actions do not endanger the species, or if we are not acting arbitrarily.”

The committee offered this illustration: A farmer mows his field (apparently an acceptable action, perhaps because the hay is intended to feed the farmer’s herd—the report doesn’t say). But then, while walking home, he casually “decapitates” some wildflowers with his scythe. The panel decries this act as immoral, though its members can’t agree why. The report states, opaquely:

At this point it remains unclear whether this action is condemned because it expresses a particular moral stance of the farmer toward other organisms or because something bad is being done to the flowers themselves.

What is clear, however, is that Switzerland’s enshrining of “plant dignity” is a symptom of a cultural disease that has infected Western civilization, causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns. It also reflects the triumph of a radical anthropomorphism that views elements of the natural world as morally equivalent to people.

Why is this happening? Our accelerating rejection of the Judeo-Christian world view, which upholds the unique dignity and moral worth of human beings, is driving us crazy. Once we knocked our species off its pedestal, it was only logical that we would come to see fauna and flora as entitled to rights.

Complete article.

“Carrot Juice is Murder” 4:29 video

From Glenn Reynolds via Bird Dog.