When we commented yesterday negatively on the Supreme Court decision in Gonzales, et. al. v. Oregon, we must confess that we had not yet gotten around to reading the actual decision. Nor were we familiar with the specifics of the Oregon law. Its title, the Oregon Death With Dignity Act (ODWDA), had precisely the ring of liberal double-speak to it, and we had leapt (understandably, we would argue) to the conclusion that the act basically encompassed oldsters going to the doctor’s office to be treated in the manner of the veterinarian putting to sleep the family cat. The reality was clearly quite different.

(The Supreme Court decision states:)

The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who, in compliance with ODWDA’s specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.

Since our own position is really that any rational adult ought to be able to buy, and use, any medication or consciousness-altering item he desires without a prescription, it is clear that we failed to recognize initially the curious occurrence of the court’s liberal majority arriving at a perfectly correct decision.

Justice Scalia seems to have suffered from the same knee-jerk reaction we did initially, which was joined by Justices Roberts and Thomas. But Clarence Thomas additionally wrote a separate dissent, commenting sarcastically:

I agree with limiting the applications of the CSA [Controlled Substances Act] in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486—487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.’ ? Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich—albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent.

In other words, Thomas still thinks the Constitution ought to preclude such Federal intrusions, but the since the Court already decided otherwise in Raich, what can he do but dissent from the tortured reasoning used to achieve a different result this time?

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I was just telling my wife: I can remember being wrong once before. I think it was in 1954…

The US Supreme Court upheld Oregon’s Physician Assisted Suicide Law by a 6-3 vote.

In his recent novel No Country for Old Men, Cormac McCarthy has the old timey Texas Sheriff Bell reminisce:

Here a year or two back me and Loretta went to a conference in Corpus Christi and I got set next to this woman, she was the wife of somebody or other. And she kept talking about the right wing this and the right wing that… She kept on, kept on. Finally told me, said: I dont like the way this country is headed. I want my granddaughter to be able to have an abortion. And I said well mam I don’t think you got any worries about the way this country is headed. The way I see it goin I dont have much doubt but what she’ll be able to have an abortion. I’m goin to say that not only will she be able to have an abortion, she’ll be able to have you put to sleep. Which pretty much ended the conversation.

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The negative opinion ofthe Supreme Court’s ruling implied by the use of the quotation has been retracted.

Kenji Yoshino, Deputy Dean for Intellectual Life (which very title provokes sarcasm) and Professor at Yale Law School, has made a staggering new breakthrough in the ever-burgeoning Academic industry of the study of victimization’s infinite forms. Writing in a New York Times Magazine feature article (promoting a new book on the same subject), Yoshino recalls his own unhappy experiences:

When I began teaching at Yale Law School in 1998, a friend spoke to me frankly. “You’ll have a better chance at tenure,” he said, “if you’re a homosexual professional than if you’re a professional homosexual.”

It wasn’t long before I found myself resisting the demand to conform. What bothered me was not that I had to engage in straight-acting behavior, much of which felt natural to me. What bothered me was the felt need to mute my passion for gay subjects, people, culture.

It may strike many readers as an enviable enough fate to be a tenured Professor at Yale Law School, not to mention, Deputy Dean for Intellectual Life, but what real satisfaction can a chap derive from such trifles, when the reactionary prejudices of a cruel society will not grant him the right to allow his inner screaming queen to emerge and swish proudly in public in full daylight?

Long after I came out, I still experienced the need to assimilate to straight norms. But I didn’t have a word for this demand to tone down my known gayness.

Then I found my word, in the sociologist Erving Goffman’s book “Stigma.” Written in 1963, the book describes how various groups – including the disabled, the elderly and the obese – manage their “spoiled” identities. After discussing passing, Goffman observes that “persons who are ready to admit possession of a stigma. . .may nonetheless make a great effort to keep the stigma from looming large.” He calls this behavior covering. He distinguishes passing from covering by noting that passing pertains to the visibility of a characteristic, while covering pertains to its obtrusiveness. He relates how F.D.R. stationed himself behind a desk before his advisers came in for meetings. Roosevelt was not passing, since everyone knew he used a wheelchair. He was covering, playing down his disability so people would focus on his more conventionally presidential qualities.

As is often the case when you learn a new idea, I began to perceive covering everywhere. Leafing through a magazine, I read that Helen Keller replaced her natural eyes (one of which protruded) with brilliant blue glass ones. On the radio, I heard that Margaret Thatcher went to a voice coach to lower the pitch of her voice. Friends began to send me e-mail. Did I know that Martin Sheen was Ramon Estevez on his birth certificate, that Ben Kingsley was Krishna Bhanji, that Kirk Douglas was Issur Danielovitch Demsky and that Jon Stewart was Jonathan Leibowitz?…

The new civil rights begins with the observation that everyone covers.

One might expect serious resistance to a startlingly dramatic new notion of Civil Rights, to a new progressive demand for something far beyond mere tolerance of the forms of minority status which are innate or unchosen, which persons cannot ( or are believed, at least, to be unable to) do anything about, but Yoshino has considered this, and believes he has the answer.

When I lecture on covering, I often encounter what I think of as the “angry straight white man” reaction. A member of the audience, almost invariably a white man, almost invariably angry, denies that covering is a civil rights issue. Why shouldn’t racial minorities or women or gays have to cover? These groups should receive legal protection against discrimination for things they cannot help. But why should they receive protection for behaviors within their control – wearing cornrows, acting “feminine” or flaunting their sexuality? After all, the questioner says, I have to cover all the time. I have to mute my depression, or my obesity, or my alcoholism, or my shyness, or my working-class background or my nameless anomie. I, too, am one of the mass of men leading lives of quiet desperation. Why should legally protected groups have a right to self-expression I do not? Why should my struggle for an authentic self matter less?

I surprise these individuals when I agree. Contemporary civil rights has erred in focusing solely on traditional civil rights groups – racial minorities, women, gays, religious minorities and people with disabilities. This assumes those in the so-called mainstream – those straight white men – do not also cover. They are understood only as obstacles, as people who prevent others from expressing themselves, rather than as individuals who are themselves struggling for self-definition. No wonder they often respond to civil rights advocates with hostility. They experience us as asking for an entitlement they themselves have been refused – an expression of their full humanity.

Civil rights must rise into a new, more inclusive register.

In the end, the School of Ressentiment proves universally inclusive. The answer to each and every individual id’s discontents with Civilization’s restraints is Universal Revolution. Everyone just needs to let his freak flag fly. For the Old Adam and the New Caliban alike, from the crudity of the lower classes to the depravity of the elite, all norms and standards must be swept aside, and any negative judgment of the self in any form or kind prohibited by the ideology of the new Enlightenment. A new liberated mankind will march forward into an idyllic future of self-realization and universal equality, just by each individual human being “being himself.” Koombayah!

Marty Lederman in the fourth of a series of postings, linked by Orin Kerr at the Volokh Conspiracy, reviewing the John McCain-sponsored Al Qaeda Bill of Rights, notes what he regards as potential negatives, including: (the possibility of the) Admission of Evidence Obtained by Torture and Limitations on Detainees’ Access to Judicial Review.

Lederman’s position implicitly involves vesting detained terrorists and illegal combatants with rights to treatment and protections pertaining to persons enjoying the status of prisoners of war. But what is the actual status of such persons? To be entitled to be treated as a prisoner of war, the individual apprehended under arms in some form must be either a uniformed individual serving in the regular armed forces of a recognized state, which these detainees are not; or meet all of the criteria required for recognition of equivalent irregular status in

Section 2 of Article 3 of the Geneva Convention:

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

Terrorists and unlawful jihadist combatants fail all four of the above tests, and should be consequently regarded as ineligible for the honorable status of prisoners of war, and should be regarded and treated, as hostes humani generis, “the common enemies of humankind.” See Joseph P. Bialke, Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict.

As Mackubin Thomas Owens writes:

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — “the common enemies of mankind.”

The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution.

While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human-rights groups told the Washington Times, “I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war.”

The Supreme Court will hear appeals from four plaintiffs’ groups, representing democrats, minorities, the city of Austin, and it surrounding county, of Appeals Court rulings upholding the Republican redrafting of Texas’ congressional districts map.

PJM is going to have a blogfest on trying Saddam tomorrow. We’re utterly and completely opposed to this sort of nonsense. Trials of defeated war opponents are only hypocritical exercises in victor’s justice, and embody the worst kind of wet, liberal impulses in the direction of internationalism and empty formalism. We ought to behave like rational adults.

When we capture an adversary like Saddam, we ought either to decide to be genteel and humane about the whole thing, and exile el supremo to some remote form of permanent imprisonment on a little St. Helena of his own. Or, we should avoid fooling around, and instruct the US commander on the scene to whistle up a drumhead court martial, followed directly by a firing party, as soon as the malefactor falls into US hands. In cases where we have good reason to eliminate a tyrant with extreme prejudice, we should hang him. C’est tout.

What we do these days is all empty ceremony and folderol designed to humbug ourselves into believing that we have become superior superhuman entities, that we are above mere vengeance. Of course, we still desire vengeance, and fully intend to have it, and enjoy it. But we insist on lying to ourselves and the world, and pretending that, so omnipotent is our materialist and bourgeois way of life, that, by us, even vengeance and killing can be rationalized and domesticated.

Walter Olson reports that two secretaries will share a settlement of around $450,000 from the Atlantic City, N.J. school district and its insurer after filing sexual-harassment charges based on a fallacious interpretation of an assistant superintendent’s remark.

The third-year students at Yale Law find the dominium of orthodoxy at their elite school troubling.

Yale Law School’s almost universal disapproval of the nomination of Judge Samuel Alito to the U.S. Supreme Court has made clear, yet again, the stark lack of ideological diversity here in New Haven… Notably lacking among Yale’s professors has been any vigorous defense of Judge Alito or of the conservative judicial philosophy he’s believed to hold. No one has stepped forward to defend or even suggest that the country would be better off with another Roe vs. Wade skeptic on the court who is also an “originalist” (believes the Constitution should be interpreted as it was originally written) and a federalist (believing in strict separation of federal and state powers). Such ideas supposedly belong to conservative extremists, who are considered beyond the pale at Yale Law School… We don’t say this to whine about being underrepresented as conservatives at Yale Law School. But the school’s lack of diversity increasingly represents a scholarly and pedagogical problem for Yale. For example, the Rehnquist court was a revolution in the country’s jurisprudence. Except as fuel for denunciations of the court’s conservative majority, these developments have gone largely unnoticed in the scholarship of Yale Law’s professors…. There is something odd when a major strain of American jurisprudence can’t find a single defender at the country’s top law school.

The Yale branch of the Federalist Society constitutes the solitary voice of heresy able to be heard within the Gothic corridors of the nation’s highest rated institution of legal education.

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Juan Non-Volokh links an article by Yale Law Professor Peter Schuck in the American Lawyer on the lack of viewpoint diversity at elite law schools. Professor Schuck observes:

… a teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm-and also to exemplify-core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren’t-as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view-on our own faculties, debated before our own students-to keep us intellectually honest and to enrich learning.

Yale University has become the latest victim of a world-wide trend, fueled by resentment and leftist ideology, in which backward countries seek to regain possession of archaeological treasures removed long ago by scientists from wealthier and more advanced nations. Just as the Slavic and Turkic-descended inhabitants of modern-day Greece, seeking the return of the Parthenon’s Elgin Marbles from the British Museum, have no more real personal connection to the Greek civilization which actually produced the art than did the British Lord Elgin, who saved them from destruction; the Spanish-descended litigants from Peru have no more connection to the previous inhabitants of their country who produced the artifacts in the first place than did their discoverer, the American Hiram Bingham.

CNN reports:

LIMA, Peru (AP) — Peru is preparing a lawsuit against Yale University to retrieve artifacts taken nearly a century ago from the Inca citadel of Machu Picchu, a Peruvian cultural official said Wednesday.

Peru in recent years has held discussions with Yale seeking the return of nearly 5,000 artifacts, including ceramics and human bones that explorer Hiram Bingham dug up during three expeditions to Machu Picchu in 1911, 1912 and 1914

“Yale considers the collection university property, given the amount of time it has been there,” said Luis Guillermo Lumbreras, chief of Peru’s National Institute of Culture, in an interview with The Associated Press.

Lumbreras said former President Augusto B. Leguia gave Bingham “permission to temporarily export the objects for scientific ends,” with the agreement that the artifacts would be returned after one year, and that the time frame later was extended by 18 months.

“Theoretically, they should have been returned after January 27, 1916,” Lumbreras said. “The fact is, they weren’t returned.”

For decades, Peru did not pursue the matter, he said.

“It stayed that way for nearly 100 years,” Lumbreras said. “The 100th anniversary of the scientific anniversary of Machu Picchu is coming. We believe it is time to return the collection.”

Glenn Reynolds links the abstract of a prepublication law review article, titled Harry Potter and the Half-Crazed Bureaucracy, by Benjamin Barton, a University of Tennessee Law School colleague, arguing that the Harry Potter series is capable of being read as a sustained critique of government. Rowling’s portrait of the Ministry of Magic, its decisions, and operations represents so negative a view that

The most cold-blooded public choice theorist could not present a bleaker portrait of a government captured by special interests and motivated solely by a desire to increase bureaucratic power and influence.

Instapundit tells us that Barton believes that Rowling’s disenchantment with government may be the product of her experiences dealing with the British Welfare bureaucracy during her early years of poverty.

Peter Lushing of the Benjamin N. Cardozo School of Law discusses, and rejects, claims that the Graham Amendment, denying habeas review to War on Terrorism detainees held prisoner by US forces outside the territorial boundaries of the United States, constitutes a possible violation of the Suspension Clause of the Constitution, Article I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

to put it in the language of talk radio, the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad.

Judge Robert Bork contemplates the modern judicial assault on democracy and American values, and warns of further judicial overrulings of democracy via the internationalization of law:

What has long been true has now become obtrusively apparent: There exists a fundamental contradiction between America’s most basic ordinance, its constitutional law, and the values by which Americans have lived and wish to continue to live… First, much constitutional law bears little or no relation to the Constitution. Second, the Supreme Court’s departures from the Constitution are driven by “elites” against the express wishes of a majority of the public. The tendency of elite domination, moreover, is to press America ever more steadily toward the cultural left…

nothing prepared us for the sustained radicalism of the Warren Court, its wholesale subordination of law to an egalitarian politics that, by deforming both the Constitution and statutes, reordered our politics and our society… Today’s Court, though generally more honest in interpreting statutes, is, if anything, even bolder in rewriting the Constitution to serve a cultural agenda never even remotely contemplated by the founders. This Court strikes at the basic institutions that have undergirded the moral life of American society for almost four hundred years and of the West for millennia. As John Derbyshire put it, “We Americans are heading into a ‘crisis of foundations’ of our own right now. Our judicial elites, with politicians and pundits close behind, are already at work deconstructing our most fundamental institutions—marriage, the family, religion, equality under the law.”