Oh, sure.

The ACLU, a little jurisdiction shopping, and a Jimmy Carter-appointed ultra-liberal ideologue judge with a record of partisan political judicial conduct, a cooperative MSM, and voila! you have headlines shouting U.S. Judge Finds Wiretapping Plan Violates the Law.

In reality, Anna Diggs Taylor’s ruling will simply go on to the Circuit Court of Appeals and on to the Supreme Court, where the arguments will be evaluated by more serious and responsible judges.

———————
MaggieCarta on Free Republic provides the song of the hour.

My Law School Told Me You Better Shop Around.
(Tune: My Momma Told Me You Better Shop Around)

Just because you’ve briefed a big case now
There’s still some things that you must understand now
Before you step into court with demands now
Make your choice nonrandom as you can now
My law school taught me:
You better shop around

There’s some knowledge I want to bestow now
Know which way that the wind’s gonna blow now
Judgments come and judgments are gonna go now
The more you look, you’ll find one apropos, now
My law school taught me:
You better shop around

You must use your all best jargon, son
Don’t stay stuck with the very first one
Hard working judges come a dime a dozen
Try to find you one with a verdict you’re lovin’
Presume you got no standing to sue, now
Find one who’s in bed with ACLU now
My law school taught me:
You better shop around

Ruling against a defense motion to dismiss in the case of US v. Steven J. Rosen, Keith Weissman, District Court Judge Thomas Selby Ellis, III held that, under the federal Espionage Act private citizens can be prosecuted for unauthorized receipt and disclosure of classified information.

Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.

Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation…

So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep.

It is to be expected that this ruling will be tested at the Appeals Court and Supreme Court levels, but Judge Ellis’ reasoning is sound, and there is distinct cause for a nervous evening on the part of several reporters working for the Washington Post and the Los Angeles and New York Times newspapers.

————-

Steven Aftergood reports at Secrecy News.

The Canadian would-be buyer of a three-bedroom, two-bath house in Jasper County, South Carolina discovered the developers had neglected to inform her of one little detail.

(The local reporter has a few problems with the English language, but one gathers that:)

In 1998, the then-owner of the 1700-acre Delta Plantation, Henry E. Ingram Jr. (a man of decidedly Southern irredentist opinions) when he sold his acreage to Bluffton Home Builders, inserted a few small covenants in the deed.

Mr. Ingram’s covenants stipulated that the property, or subdivisions thereof, could not be sold or leased to:

1. Yankees.

2. Persons bearing the last name Sherman (vide: General William Tecumseh Sherman).

3. Persons bearing last names whose letters could possibly be rearranged to spell Sherman.

Ms. Legare, the would-be buyer (who, being Canadian, would not be personally impacted by Mr. Ingram’s covenants, but who obviously might like to be able resell her house some fine day) and Bluffton Home Builders are now working with Mr. Ingram’s son, Mr. Ashley Ingram, a local attorney (who probably has some personal interest in the matter) to get those covenants removed. But Henry Ingram, now a resident of Corpus Christi, Texas disagrees. The older Mr. Ingram wants his covenants defended and enforced, and is planning to move to Costa Rica, presumably to get further away from those damned Yankees.

———————–

FOLLOW-UP

Alfred L. Brophy tells us he covered the Ingram covenants back in 1998. (Did blogs exist in 1998?)

Mr. Brophy also provides addiional detail: Yankees are defined as people who’ve lived north of the Mason-Dixon line for more than a year or were born north of the Mason-Dixon line. But Ingram also included an exemption: if a Yankee takes a Southern loyalty oath and whistles Dixie as a sign of loyalty, then he is permitted to buy the property.

Paper by Messrs. Brophy & Ghosh on the Unconstitutionality of the Ingram Covenants offers excellent historical background and legal detail; but, alas! the authors do take an unsound view of the desirability of enforcing such covenants.

Cicero in response to Hamdan v. Rumsfeld:

IV. atqui, si tempus est ullum iure hominis necandi, quae multa sunt, certe illud est non modo iustum verum etiam necessarium, cum vi vis inlata defenditur… insidiatori vero et latroni quae potest inferri iniusta nex?

quid comitatus nostri, quid gladii volunt? quos habere certe non liceret, si uti illis nullo pacto liceret. est igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. silent enim leges inter arma nec se exspectari iubent, cum ei qui exspectare velit ante iniusta poena luenda sit quam iusta repetenda.

etsi persapienter et quodam modo tacite dat ipsa lex potestatem defendendi, quae non hominem occidi, sed esse cum telo hominis occidendi causa vetat, ut, cum causa, non telum quaereretur, qui sui defendendi causa telo esset usus, non hominis occidendi causa habuisse telum iudicaretur. quapropter hoc maneat in causa, iudices; non enim dubito quin probaturus sim vobis defensionem meam, si id memineritis quod oblivisci non potestis insidiatorem interfici iure posse.

(Translation, JDZ:)

IV. But if there is any occasion on which it is proper to slay a man, and there are many, surely that occasion is not only just, but even necessary, when violence is offered, and must be repelled by violence… And what death can be unjust when inflicted on a secret plotter and outlaw?

Why do we have an army, why do we own swords? Surely it would not be justifiable for us to have them at all, if it were never justifiable to use them. There is, therefore, a law, O judges, not written, but born with us, which we have not learnt, nor received by tradition, nor read, but which we have taken in and imbibed from Nature herself; a law which we were never taught, but for which we were made, which we were never trained in, but which is ingrained in ourselves: namely, that if our life is in danger from plots, or from open violence, or from the weapons of brigands or enemies, every means of securing our safety is honorable. For the laws are silent in the midst of the clash of arms, and do not expect themselves to be waited upon, when he who waited would be obliged to bear an unjust injury rather than exact a just punishment.

The law very wisely, and tacitly, gives a man the right to defend himself, and it does not merely prohibit homicide, but forbids anyone carrying a weapon for the purpose of murder. It is the intended purpose, not the carrying of the weapon, which constitutes the offense. The man who used a weapon to defend himself would not be deemed to have armed himself with the intention of committing murder. Let this principle then be remembered by you in this trial, O judges; for I do not doubt that I shall make good my defense before you, if you only remember, that which it is impossible to forget: that a plotter against oneself may be lawfully slain.

-Marcus Tullius Cicero, PRO T. ANNIO MILONE ORATIO, [In Defense of Titus Annius Milo], X:IV.

The Supreme Court ruled on Thursday that President Bush did not have authority to set up the war crimes tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva convention.

Fox News & AP

Andrew McCarthy wrote an earlier post-mortem predicting the Court would rule wrongly, but it appears that the decision will be worse than expected.

If the Supreme Court of the United States really takes it upon itself to extend Geneva Convention Rights to terrorists and illegal combatants, George W. Bush ought to take Andrew Jackson’s position, and tell Justice Stevens to go enforce his own ruling.

History professor Joyce Lee Malcolm discusses, in the Weekend edition of the Journal, the unwillingness of the British government to defend its subjects against crime rising comcomitantly with its determination to prevent their defending themselves.

With Great Britain now the world’s most violent developed country, the British government has hit upon a way to reduce the number of cases before the courts: Police have been instructed to let off with a caution burglars and those who admit responsibility for some 60 other crimes ranging from assault and arson to sex with an underage girl. That is, no jail time, no fine, no community service, no court appearance. It’s cheap, quick, saves time and money, and best of all the offenders won’t tax an already overcrowded jail system.

Not everyone will be treated so leniently. A new surveillance system promises to hunt down anyone exceeding the speed limit. Using excessive force against a burglar or mugger will earn you a conviction for assault or, if you seriously harm him, a long sentence. Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another during the seventh break-in at his rural home, was denied parole because he posed a threat to burglars. The career burglar whom Mr. Martin wounded got out early.

Using a cap pistol, as an elderly woman did to scare off a gang of youths, will bring you to court for putting someone in fear. Recently, police tried to stop David Collinson from entering his burning home to rescue his asthmatic wife. He refused to obey and, brandishing a toy pistol, dashed into the blaze. Minutes later he returned with his wife and dog and apologized to the police. Not good enough. In April Mr. Collinson was sentenced to a year in prison for being aggressive towards the officers and brandishing the toy pistol. Still, at least he won’t be sharing his cell with an arsonist or thief.

How did things come to a pass where law-abiding citizens are treated as criminals and criminals as victims? A giant step was the 1953 Prevention of Crime Act, making it illegal to carry any article for an offensive purpose; any item carried for self-defense was automatically an offensive weapon and the carrier is guilty until proven innocent. At the time a parliamentarian protested that “The object of a weapon was to assist weakness to cope with strength and it is this ability that the bill was framed to destroy.” The government countered that the public should be discouraged “from going about with offensive weapons in their pockets; it is the duty of society to protect them.”

The trouble is that society cannot and does not protect them. Yet successive governments have insisted protection be left to the professionals, meanwhile banning all sorts of weapons, from firearms to chemical sprays. They hope to add toy or replica guns to the list along with kitchen knives with points. Other legislation has limited self-defense to what seems reasonable to a court much later.

Although British governments insist upon sole responsibility for protecting individuals, for ideological and economic reasons they have adopted a lenient approach toward offenders. Because prisons are expensive and don’t reform their residents, fewer offenders are incarcerated. Those who are get sharply reduced sentences, and serve just half of these. Still, with crime rates rising, prisons are overcrowded and additional jail space will not be available anytime soon. The public learned in April that among convicts released early to ease overcrowding were violent or sex offenders serving mandatory life sentences who were freed after as little as 15 months.

And the slackening of law enforcement continues to stimulate the Labour Government’s erosion of the ancient liberties which were always England’s pride.

…a host of actions have been initiated to bring about more convictions. At the end of its 2003 session Parliament repealed the 800-year-old guarantee against double jeopardy. Now anyone acquitted of a serious crime can be retried if “new and compelling evidence” is brought forward. Parliament tinkered with the definition of “new” to make that burden easier to meet. The test for “new” in these criminal cases, Lord Neill pointed out, will be lower than “is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here.”

Parliament was so excited by the benefits of chucking the ancient prohibition that it extended the repeal of double jeopardy from murder to cases of rape, manslaughter, kidnapping, drug-trafficking and some 20 other serious crimes. For good measure it made the new act retroactive. Henceforth, no one who has been, or will be, tried and acquitted of a serious crime can feel confident he will not be tried again, and again.

To make the prosecutor’s task still easier, he is now permitted to use hearsay evidence — goodbye to confronting witnesses — to introduce a defendant’s prior record, and the number of jury trials is to be reduced. Still, the government has helped the homeowner by sponsoring a law “to prevent homeowners being sued by intruders who injure themselves while breaking in.”

It may be crass to point out that the British people, stripped of their ability to protect themselves and of other ancient rights and left to the mercy of criminals, have gotten the worst of both worlds. Still, as one citizen, referring to the new policy of letting criminals off with a caution, suggested: “Perhaps it would be easier and safer for the honest citizens of the U.K. to move into the prisons and the criminals to be let out.”

Just last week, the BBC was reporting on the success of a “knife amnesty.”

Legalization of polygamy following legalization of gay marriage already happend in the Netherlands. It could happen here. Stanley Kurtz, in a must read article, identifies the fundamental connections between monogamy and democracy.

Alexis de Tocqueville, that great nineteenth-century student of America, pointed to the abolition of primogeniture (exclusive property inheritance by first-born sons) as the social key to American democracy. Once American children inherited equally, said Tocqueville, landed estates were dispersed, and the ethos of kin unity and hierarchy was replaced by a spirit of democratic equality. Yet America’s abolition of primogeniture was only the culmination of a process begun centuries earlier by the Christian Church. Muslim families arrange marriages to cousins and other kin, thereby reinforcing couples’ identification with family and tribe. But from the fourth century through the Middle Ages, the Church fought to protect individual choice in marriage, while prohibiting marriage between cousins and other relatives. That undercut social forms based on kinship and collective identity, ultimately leading to the triumph of democratic individualism in the West.

Yet the weakening or even disappearance of extended kinship groups from family life in the West poses a problem. If families aren’t going to be held together by collective honor, mutual obligation, and shared economic interest, how will they cohere? The answer is love. Exclusive affection for a unique individual is the structural foundation on which Western families are built. In polygamous societies, where marriages are arranged and wives and children live collectively, too much individualized love (for spouses or children) endangers group solidarity. Yet in a democratic society, individualized love is praised and cultivated as the foundation of family stability. So take your pick. You can have a love-based democratic culture of monogamy, or an authority-based hierarchical culture of polygamy. But–as the Reynolds Court knew–you can’t have both.

American pioneers, like Daniel Boone and Davy Crockett, made a practice of moving whenever a neigbor settled close enough that they could see the smoke from his chimney. Those old boys were smart.

In today’s metropolitan suburbs, regulation has burgeoned like kudzu. One pays more in taxes per annum than most members of my dad’s generation paid for their house. Those taxes are high enough and increase reliably enough that retirement and a fixed income will require moving for most people.

You get to pay something in the neighborhood of a million bucks for a lot of suburban properties these days, and then you need to get (almost impossible to obtain) permissions to remodel or build anything on your (so-called) own property.

Myself, I’m keeping my 300 acre farm in a rural township of Pennsylvania, where I can shoot guns, remodel my house, or erect a 200 foot replica of the Statue of Liberty painted fuchsia, and nobody can stop me.

Just read this eye-opening account from the Washington Post of life in today’s suburban hell:

Marianne and Marc Duffy say their dream home renovation in Chevy Chase has turned into a suburban nightmare. Their neighbors say the Duffys intentionally flouted building rules when they expanded their $725,000 house on Thornapple Street and have no one to blame but themselves.

Yesterday, a Montgomery County appeals board reaffirmed an earlier ruling that the Duffys had rebuilt their house too close to the street and to neighbors. The Duffys say the decision leaves them two choices: Move the house a few feet at a cost of $100,000 or continue an expensive battle in court….

The dispute has shed new light on the inner workings of the county’s Department of Permitting Services, which reversed course at least five times in the case, the Duffys said. The agency issued renovation permits to the couple last year but later pulled them back and ordered work stopped after neighbors complained that the Duffys had actually demolished and rebuilt the house. The couple are renting a house nearby.

The case has pitted the Duffys, both securities lawyers, against a group of prominent opponents, including two journalists — Mayer, a writer for the New Yorker magazine, and her husband, William Hamilton, a Washington Post editor — as well as lawyer Michael Eig and his historic preservationist wife Emily Hotaling Eig, former ABC News reporter Jackie Judd and real estate agent Kristin Gerlach. Both sides had lawyers but recently decided to represent themselves.

Neither side has signaled a willingness to give up the fight, while acknowledging the strain the protracted battle, including six days of hearings, has put on their lives.

The dispute has roiled the neighborhood, sparked contentious discussions at Town Council meetings, generated letters to local newspapers and debates on talk radio, and fueled discussions about liberal conspiracies.

Moral? Don’t live near pretentious suburban liberals.

President Bush intervened in the conflict between the Justice Department and Congress, ordering the material taken from Rep. William Jefferson’s office sealed for 45 days, obviously in order to provide time for judicial review.

The president deserves commendation for acting responsibly on the occasion of a conflict in the Constitutional balance between federal branches. I think myself that a number of usually extremely perspicacious commentators on the Right went off half-cocked on this one.

Readers will recall that the FBI searched Rep. Jefferson’s office on Saturday and Sunday, and that the US Constitution, Article 1, Section 6, says:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

————

In evaluating these kinds of issue, I think that a good starting point is always Justice Joseph Story (Y 1798)’s Commentaries on the Constitution of the United States (1833).

On Article 1, Section 6, Justice Story decidedly notes the importance of legislative immunity :

§ 856. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament.

It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members.

§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury; and (as has been justly observed) with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence.

The legislative immunity in Britain, Story notes, was confined to intervals only modestly longer than the actual sessions of Parliament.

§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute.

The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time.

In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo.

In today’s United States, when it ordinarily takes a year or more to go to trial, one would expect legislators to be able to claim very long intervals of immunity.

Even in Britain, Story notes, that Spirit of Modernity has tended to curtail the principle of legislative immunity short of the point where it might benefit the contents of Rep. Jefferson’s office.

§ 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained.

In the members of congress, the privilege is strictly personal, and does not extend to their servants or property.

Note that Justice Story accords Congress only a lower case “c.” The American principle of Republicanism was decidedly stronger and more keenly felt in 1833 than it is today, when presidents are accompanied routinely by a complement of bodyguards and functionaries the Sultan of Byzantium might envy. I think Justice Story’s observations are informative, as always, but I think an able attorney would not have the least difficulty in arguing either side of Rep. Jeffeson’s claim to the application of Article 1, Section 6 privileges to his office papers (and bags of currency).

Prominent Appeals Court Judge J. Michael Luttig has resigned his $171,800 per annum judicial position, and accepted the position of senior vice president and general counsel of Boeing.

Judge Luttig’s new job will probably feature compensation including both an annual salary in seven figures range and substantial stock options.

Some judges do willingly sacrifice their family’s financial well being in order to pursue public service, but the astonishing gap between what state and federal judges are paid in the United States and the kind of money attorneys of equivalent calibre can command in the private sector really ought to provoke reflection.

Do we want the best qualified people on the bench? Or is it more important to limit the compensation of public officials to figures easily defensible to the general public?

These days, one has only to enter an ordinary state court to see talented attorneys, the partners of major firms, and distinguished graduates of top national law schools, strugging to explain cases and the law to much less well-informed judges, the graduates of the humblest law schools, to whom the meagre judicial salaries are actually attractive. When lawyers are normally conspicuously better qualified than judges, we are clearly not paying judges enough.

Michelle Malkin is posting this morning opposing amnesty for illegal aliens. Sorry, Michelle, I don’t agree with you for once.

Immigration policy is a classic example of the kind of issue America simply cannot handle rationally.

It’s just like Prohibition and Drug Control. Nice people want to have a drink themselves before dinner, but you know what problems result from letting those workingmen waste their paychecks on beer down at the saloon. Of course, we all smoked a little weed in our day, but how could we walk the streets safely if we didn’t imprison vast numbers of poor minority group members for drugs? Besides, we don’t want our children’s academic success compromised by experimenting with marijuana. They might become pothead slackers. Of course, we want our lawns mowed, and we naturally enjoy the low prices resulting from the availability of cheap labor, but we don’t want all those Mexicans all over the place. Can’t they just go home to Guadalajara when they’ve finished the yard work?

We have a fine tradition of hypocrisy in this country going right back to the Pilgrim Fathers who settled Massachusetts Bay. Americans want to have it both ways. We all want the hard work and the stoop labor done by somebody else. (We’re certainly not going to do it.) And we want affordable services from cheap labor. We just don’t want all those funny-looking riff raff foreigners hanging around spoiling our views. So we demand that the politicians get to work, and pass some laws, which we still really don’t want enforced.

When –as happened with Prohibition– the law proves impossible to enforce, and the law becomes a joke, the answer is to get rid of the law we’re all collaborating in breaking, not redouble our efforts to enforce the inconvenient law.

Illegal Latin Americans working in the United States are illegal because we have unrealistic immigration quotas (which fail to recognize our national need for labor), and the barrers are just too high. What Bush thinks in private, and at present doesn’t dare say out loud, is perfectly correct. We need to legalize the status of everybody already here, and we need to change the rules to make immigration easier to do legally. And don’t give me any of that sanctimonious statist stuff about how it’s wrong to “reward breaking the law.” We Americans have lots of stupid laws, and we break them all the time. Do you always drive 55 mph, Michelle?

This is a country that has major public debates over how we handle the Korans we supply to incarcerated terrorists, and you think we’re going to kick in doors, handcuff, and forcibly expel millions of hard-working people who are here doing all of our most unpleasant jobs at the lowest wages? It’s never going to happen, and – of course – it shouldn’t happen.

A three judge panel of California’s “Ninth Circus,” as Rush Limbaugh likes to call the United States Court of Appeals for the Ninth Circuit, has preposterously decided that the enforcement by the City of Los Angeles of a municipal ordinance, which states that “no person shall sit, lie or sleep in or upon any street, sidewalk or public way,” violates the constitutional prohibition against cruel and punishment by criminalizing “the status of homelessness by making it a crime to be homeless.”

Clinton appointee Kim McLane Wardlaw wrote in her decision:

(this) case stands for “the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”

Wardlaw scoffed at the position Los Angeles officials took in the case.

“The City…apparently believes that [the plaintiffs] can avoid sitting, lying and sleeping for days, weeks, or months at a time to comply with the City’s ordinance, as if human beings could remain in perpetual motion. That being an impossibility, by criminalizing, sitting lying, and sleeping, the City is in fact criminalizing [the plaintiffs] status as homeless individuals.”

The judge said that evidence introduced in the case, entitled Edward Jones v. City of Los Angeles, showed the plaintiffs “are not on the streets of Skid Row by informed choice.”

The notion that the framers intended to ban municipal prohibitions against public dormition (or vagrancy) as “cruel or unusual” is patently ridiculous. Sturdy beggars were publicly flogged for idleness in most states at the time of the adoption of the Bill of Rights.

Even farther-fetched is Judge Wardlaw’s notion of non-volition. If an individual ceases attempting to lead a responsible life, declines employment, and chooses to devote his waking hours to the cheapest possible forms of drug or alcohol-induced intoxication, funded by crime or begging, and neglects to make provision for his own shelter, he didn’t have a choice? When exactly was it that choice vanished?

One of the most apt commentaries on Judge Wardlaw’s absurdly indulgent philosophy can be found in Fritz Lang’s 1931 film M.

In M, the crimes of a child-murderer have paralysed both ordinary life and criminal activity in Berlin, as the police furiously search for the pedophile serial killer. The criminal underworld decides to take matters into its own hands, in order to remove the extraordinary police surveillance and get back to normal profitable business. Finally, Hans Beckert (played by the young Peter Lorre), the murderer of small children, is trapped by the criminals in a basement, and hailed before an informal underworld tribunal, which has every intention of ordering his immediate extermination.

“Ich kann nicht anders,” (I cannot do otherwise) Lorre screams pathetically, pleading for mercy (which is not forthcoming).

(Ironically, Beckert is quoting Martin Luther‘s response, April 1, 1521, to the efforts of the Emperor Charles V at the Diet of Worms to persuade him to reconcile with the Catholic Church, and avoid dividing the Christian Church.)

Liberals, like Judge Wardlaw, confuse the existence of the involuntary impulses with having no choice about complying. Lots of people, probably almost everyone, feels an inclination to behave completely irresponsibly, in a fashion which could –in the end– lead to a life spent sipping Thunderbird in the gutter, and panhandling for quarters, but not everyone gives way to that particular impulse. I daresay there must be in the world people who feel sexual temptations involving children, who don’t choose to implement them, as well. It is difficult to see how one can excuse Willie the Wino for having no choice (Ich kann nicht anders!), and not excuse Hans Beckert and Ted Bundy too.