Friday, June 27, 2008
Thursday, June 26, 2008
The SCOTUS 2007-08 term in review
The Supreme Court ended its 2007-08 term this week, and I'd like to briefly analyze (applying the Governance Imperative paradigm) a few of the more high-profile opinions that the Court issued this term. The opinions that I want to focus on are the following:
In this opinion, the Supreme Court rules Washington D.C.'s total ban on handgun ownership as unconstitutional, clarifying for the first time that the Second Amendment's "right to bear arms" is an individual right. Along with the Boumediene decision, this opinion will go further to securing the constitutional rights of Americans than any Supreme Court decision in a long time. It is also no coincidence that these are two decisions in which the Court most faithfully interpreted the Constitution on its own terms. It applied the structural framework of the Constitution to reign in the excesses of government, the original reason for the inclusion of rights in the Constitution. Justice Scalia's review of etymological and historical analysis of the words in the Second Amendment is well worth the read.
The Supreme Court ended years of extra-constitutional probing by the Bush Administration and confirmed that the Constitution does indeed follow the flag. The Boumediene ruling rejected the Bush Administration's notion that enemy (i.e., illegal or non-uniformed citizen) combatants in the custody of the military at Guantanamo Bay do indeed fall within the purview of the federal court system. These prisoners do have the right to file petitions of habeas corpus and are not relegated to the woefully inadequate military commissions, established by Congress in the Military Commissions Act of 2006 (MCA).
The Constitution is rather vague on the process of how to suspend habeas corpus in Article 1, Section 9, but is clear on when the writ may be suspended: "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." Since the Suspension Clause is present in Article 1, it is generally recognized that only Congress may suspend the writ. Congress did limit the habeas rights of the Guantanamo detainees in the MCA, but the Court found that Congress did not provide an effective substitute "to correct any errors [of the tribunal], to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceedings." Given that the "habeas court must have the power to order the conditional release of an individual unlawfully detained," the MCA does not meet the constitutional requirements (demanded by case law) needed for suspending the habeas corpus.
The Court's opinion reminds us of the reason why the writ of habeas corpus is so vital to the American constitutional order. From the opinion:
As in the Heller opinion, we see the Court applying the structural framework of the Constitution to reign in the excesses of the Government (in this case, the Bush Administration and Congress through the MCA).
This is another very good decision by the Supreme Court, holding that "to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing" is a violation of a defendant's Sixth Amendment right (to be "confronted with the witnesses against him"). This is understandably troubling in society's attempts to prosecute domestic violence cases, but constitutional rights cannot be swept aside when they prove inconvenient. The Court seemed to have forgotten this fact over the past few years (e.g., its 2005 Kelo v. City of New London decision), but this term produced several opinions that evidence a shift back to remembering the role and function of the Constitution.
The Court held that the application of the death penalty as a punishment for the crime of child rape is a violation of the Eighth Amendment ban on cruel and unusual punishment. This decision exhibits the worst in the Court's tendency to substitute an objective application of the Constitution's structural framework to enforce fairness with its own moralizing, subjective opinions on what is right and wrong. This case, along with cases like Roe v. Wade and Lawrence v Texas, usurps the constitutional role of the legislative branch, politicizes the judiciary, and works to de-legitimatize the court system.
In our constitutional system, it is solely the place of the legislature to decide what is right through the framework of the law. This is a very imperfect process and can lead to sloppy, imbalanced punishments between laws of similar "severeness", but this can only be effectively remedied through the constant, untiring vigilance of the people, working through their legislatures, demanding justice and equality.
D.C. v Heller
In this opinion, the Supreme Court rules Washington D.C.'s total ban on handgun ownership as unconstitutional, clarifying for the first time that the Second Amendment's "right to bear arms" is an individual right. Along with the Boumediene decision, this opinion will go further to securing the constitutional rights of Americans than any Supreme Court decision in a long time. It is also no coincidence that these are two decisions in which the Court most faithfully interpreted the Constitution on its own terms. It applied the structural framework of the Constitution to reign in the excesses of government, the original reason for the inclusion of rights in the Constitution. Justice Scalia's review of etymological and historical analysis of the words in the Second Amendment is well worth the read.
Boumediene v. Bush
The Supreme Court ended years of extra-constitutional probing by the Bush Administration and confirmed that the Constitution does indeed follow the flag. The Boumediene ruling rejected the Bush Administration's notion that enemy (i.e., illegal or non-uniformed citizen) combatants in the custody of the military at Guantanamo Bay do indeed fall within the purview of the federal court system. These prisoners do have the right to file petitions of habeas corpus and are not relegated to the woefully inadequate military commissions, established by Congress in the Military Commissions Act of 2006 (MCA).
The Constitution is rather vague on the process of how to suspend habeas corpus in Article 1, Section 9, but is clear on when the writ may be suspended: "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." Since the Suspension Clause is present in Article 1, it is generally recognized that only Congress may suspend the writ. Congress did limit the habeas rights of the Guantanamo detainees in the MCA, but the Court found that Congress did not provide an effective substitute "to correct any errors [of the tribunal], to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceedings." Given that the "habeas court must have the power to order the conditional release of an individual unlawfully detained," the MCA does not meet the constitutional requirements (demanded by case law) needed for suspending the habeas corpus.
The Court's opinion reminds us of the reason why the writ of habeas corpus is so vital to the American constitutional order. From the opinion:
That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.”
As in the Heller opinion, we see the Court applying the structural framework of the Constitution to reign in the excesses of the Government (in this case, the Bush Administration and Congress through the MCA).
Giles v. California
This is another very good decision by the Supreme Court, holding that "to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing" is a violation of a defendant's Sixth Amendment right (to be "confronted with the witnesses against him"). This is understandably troubling in society's attempts to prosecute domestic violence cases, but constitutional rights cannot be swept aside when they prove inconvenient. The Court seemed to have forgotten this fact over the past few years (e.g., its 2005 Kelo v. City of New London decision), but this term produced several opinions that evidence a shift back to remembering the role and function of the Constitution.
Kenndy v Louisiana
The Court held that the application of the death penalty as a punishment for the crime of child rape is a violation of the Eighth Amendment ban on cruel and unusual punishment. This decision exhibits the worst in the Court's tendency to substitute an objective application of the Constitution's structural framework to enforce fairness with its own moralizing, subjective opinions on what is right and wrong. This case, along with cases like Roe v. Wade and Lawrence v Texas, usurps the constitutional role of the legislative branch, politicizes the judiciary, and works to de-legitimatize the court system.
In our constitutional system, it is solely the place of the legislature to decide what is right through the framework of the law. This is a very imperfect process and can lead to sloppy, imbalanced punishments between laws of similar "severeness", but this can only be effectively remedied through the constant, untiring vigilance of the people, working through their legislatures, demanding justice and equality.
David Broder on Gerrymandering
Op-ed columnist David Broder has an article discussing the distorting effects of gerrymandering on our elections and political system.
Broder mentions two states, Iowa and Washington, "have instituted nonpartisan or bipartisan redistricting systems, and have been rewarded with much more competitive House races". This is a good idea as far as it goes, and I would encourage all States to adopt such a scheme. Nevertheless, I've been around long enough to know politicians, and politicians do not easily relinquish such powers as the ability to draw congressional districts.
Kelly and I have long been considering the value of a constitutional amendment to remedy this distasteful practice that might provide the motivation politicians would need to reform their drawing skills:
The idea is that congressional districts must be based on boundary lines that already exist for sovereignty or governing purposes. The spirit of the proposal is to force county lines, city borders, river boundaries, etc to be the basis for drawing districts, which would prevent the arbitrary (skillful) slicing and carving of population-dense areas to create "safe-seats" for one Party or the other. The wording of the amendment might need to be tweaked to ensure the spirit is secured in its interpretation, as the use of jurisdictions like school districts or home-owners association boundaries is not what we have in mind as "existing political boundaries."
So while the wording of the amendment might need to be tightened some, the spirit of the idea would give the Constitution teeth to force a return to fairness and adequate representation in our system. I dare say it would also help increase participation in the political system and voter turnout.
As a number of scholars have pointed out, the scarcity of real competition in nearly all districts has many consequences -- all bad. It makes legislators less responsive to public opinion, since they are in effect safe from challenge in November. It shifts the competition from the general election to the primary, where candidates of more extreme views can hope to attract support from passionately ideological voters and exploit the low turnouts typical of those primaries.
Gerrymandered, one-party districts tend to send highly partisan representatives to the House or the legislature, contributing to the gridlock in government that is so distasteful to voters.
Broder mentions two states, Iowa and Washington, "have instituted nonpartisan or bipartisan redistricting systems, and have been rewarded with much more competitive House races". This is a good idea as far as it goes, and I would encourage all States to adopt such a scheme. Nevertheless, I've been around long enough to know politicians, and politicians do not easily relinquish such powers as the ability to draw congressional districts.
Kelly and I have long been considering the value of a constitutional amendment to remedy this distasteful practice that might provide the motivation politicians would need to reform their drawing skills:
Congressional districts must be based entirely on existing political boundaries, excluding boundaries solely used for voting purposes.
The idea is that congressional districts must be based on boundary lines that already exist for sovereignty or governing purposes. The spirit of the proposal is to force county lines, city borders, river boundaries, etc to be the basis for drawing districts, which would prevent the arbitrary (skillful) slicing and carving of population-dense areas to create "safe-seats" for one Party or the other. The wording of the amendment might need to be tweaked to ensure the spirit is secured in its interpretation, as the use of jurisdictions like school districts or home-owners association boundaries is not what we have in mind as "existing political boundaries."
So while the wording of the amendment might need to be tightened some, the spirit of the idea would give the Constitution teeth to force a return to fairness and adequate representation in our system. I dare say it would also help increase participation in the political system and voter turnout.
Wednesday, June 04, 2008
Our Forefathers Forbearance
Craig sent me a blog post, linked in the title of this post, and pointed out that he agreed with the first comment. After reading both the article and the comment, I wanted to save my thoughts here and show how they apply to governance.
I think the commenter is describing a valid point but one that does not mesh with the intent of the original poster's reason for making the statement in question. When Pursiful says, "because there is no knock-down argument for the existence of God, then by definition people are going to disagree about God." he is speaking about forbearance. The quoted statement is just a way of reminding the reader that what constitutes "proof" to one person may not be accepted by another.
The commenter goes on to say
First, I do not think that Mr. Pursiful is stating that Christ's resurrection is in question, rather he is admitting that what he himself accepts as fact can be held as 'not-fact' by someone else. Secondly, the commenter is falling prey to the same logical fallacy that the article covers.
Let me use an example. I believe that the Earth is round but my brother believes that it is flat. I use a Foucault Pendulum to prove Earth's rotates and thus is round. My brother refuses to accept my proof and instead of trying to convince him further I tell him that he's free to believe the world is flat. In doing so, have I turned my back on my own beliefs? Can it be said that I no longer believe in the Earth as Sphere? No, I do not. He being my brother, I take him as he is rather than harangue him for not agreeing with my beliefs. He's not stupid or evil, he just doesn't believe in something that I do.
An even better example may be the small group of people who deny the Holocaust which is described by the Wikipedia article thusly:
Even if you have perfect evidence to 'prove' God's existence, there would still be those who choose no to believe it. I'm tempted to go into a discussion on epistemology but I doubt the commenter would appreciate a discussion about how we know what we do, the distinction between truth and belief and the limitations of knowledge.
The point is that there are people who will refuse to believe in things easily proven with ample evidence available and instead of the common choices he describes, "we assume that those who disagree with us are either ignorant or evil" he offers a third choice, forbearance.
With regard to governance, the gentlemen who gathered to contemplate a new type of Republic had to deal with this subject head on. How to build a strong society that doesn't let the small divisions between individuals form the cancer that drives men to accumulate power so that they can use the force of the State to control what others are allowed to believe. The heart of the First Amendment is forbearance, the willingness to allow people to believe in things that others do not. The two main political parties engage in battle along this very fault-line every election cycle. Two parties who see the same evidence but reach different conclusions.
Forbearance.
I think the commenter is describing a valid point but one that does not mesh with the intent of the original poster's reason for making the statement in question. When Pursiful says, "because there is no knock-down argument for the existence of God, then by definition people are going to disagree about God." he is speaking about forbearance. The quoted statement is just a way of reminding the reader that what constitutes "proof" to one person may not be accepted by another.
The commenter goes on to say
It's one thing if an atheist speaks as if *the atheist* doesn't find it to be conclusive proof of anything because he thinks it is make-believe, but it's another entirely for a Christian to speak as if *the Christian* doesn't find it to be a knock-down argument for God's existence either because of his own unbelief or someone else's.
First, I do not think that Mr. Pursiful is stating that Christ's resurrection is in question, rather he is admitting that what he himself accepts as fact can be held as 'not-fact' by someone else. Secondly, the commenter is falling prey to the same logical fallacy that the article covers.
Let me use an example. I believe that the Earth is round but my brother believes that it is flat. I use a Foucault Pendulum to prove Earth's rotates and thus is round. My brother refuses to accept my proof and instead of trying to convince him further I tell him that he's free to believe the world is flat. In doing so, have I turned my back on my own beliefs? Can it be said that I no longer believe in the Earth as Sphere? No, I do not. He being my brother, I take him as he is rather than harangue him for not agreeing with my beliefs. He's not stupid or evil, he just doesn't believe in something that I do.
An even better example may be the small group of people who deny the Holocaust which is described by the Wikipedia article thusly:
Holocaust denial is widely viewed as failing to adhere to rules for the treatment of evidence, principles that mainstream historians (as well as scholars in other fields) regard as basic to rational inquiry. The prevailing — and indeed virtually unanimous — consensus of mainstream scholars is that the evidence given by survivors, eyewitnesses, and contemporary historical accounts is overwhelming; that this evidence proves beyond a reasonable doubtthat the Holocaust occurred; and that it occurred as these sources say it occurred.
Even if you have perfect evidence to 'prove' God's existence, there would still be those who choose no to believe it. I'm tempted to go into a discussion on epistemology but I doubt the commenter would appreciate a discussion about how we know what we do, the distinction between truth and belief and the limitations of knowledge.
The point is that there are people who will refuse to believe in things easily proven with ample evidence available and instead of the common choices he describes, "we assume that those who disagree with us are either ignorant or evil" he offers a third choice, forbearance.
With regard to governance, the gentlemen who gathered to contemplate a new type of Republic had to deal with this subject head on. How to build a strong society that doesn't let the small divisions between individuals form the cancer that drives men to accumulate power so that they can use the force of the State to control what others are allowed to believe. The heart of the First Amendment is forbearance, the willingness to allow people to believe in things that others do not. The two main political parties engage in battle along this very fault-line every election cycle. Two parties who see the same evidence but reach different conclusions.
Forbearance.
Tuesday, June 03, 2008
Galileo Redux
I've been reading "Galileo's Daughter" about the 16th century genius and his encounters with the religious authorities involving his pursuit of the truth. The first part of the books doesn't have as much about the relationship with his daughter but it does have a very good rendering of the historical events dealing with his desire to teach what he felt was confirm-able (if not yet confirmed) truth and the church's dictate that Copernicus's theory went against holy scripture and should not be taught.
I see an interesting parallel between Galileo's story and the current debate between evolution and Intelligent Design. The sides are using very similar arguments and approaches. The only difference I can tell is that the ID proponents are trying to pass it off as an acceptable scientific theory vs the Churches insistence that Copernicus's ideas remain hypothetical.
I see an interesting parallel between Galileo's story and the current debate between evolution and Intelligent Design. The sides are using very similar arguments and approaches. The only difference I can tell is that the ID proponents are trying to pass it off as an acceptable scientific theory vs the Churches insistence that Copernicus's ideas remain hypothetical.
Monday, June 02, 2008
The Bush Who Cried 'Wolf'
I think one of the main roots of our troubles began when we started defending "America's Interests" overseas. We're all for self-determinism until a country crosses us. We did pretty good for ourselves in that first 150 years. I'd ask, what happened to change it, was it Roosevelt and his 'Speak softly and carry a big stick" speech? Your question about when to intervene is apt. At some point, we had so much potential power, we started asking why should we put up with these behaviors when we have the means to enforce our will? We didn't mind looking the other way with the whole invasion of Columbia to create Panama and it's been downhill from there. What do the poor countries do? Without the resources to throw around the world they actually have to get along with their neighbors and even _talk_ with them. That gives me an idea. What if we characterized the debate like apartment dwellers who share a wall/floor. When one of them becomes disruptive, what are the appropriate responses? The initial stages are normally to talk to the neighbor to resolve the problem. If that does not help then we can petition ever higher authorities to take action on our behalf. That's all well and good but doesn't exactly fit the situation we're discussing. Let's change things around a bit and talk about an apartment complex in which the owner lives in one of the units. Let's also change the scenarios to clarify the difference. In this scenario the problem neighbor is the apartment owner. If you lived in another unit of the same complex, you'd have to deal with your landlord in such a way that if you were to get on his bad side, you could find yourself without a place to live. The landlord wields power disporportionately compared to just another tenant. Now, let's say that the landlord, which I'll call "Laurie" doesn't like you. It wouldn't matter if you were as quiet as a churchmouse or as on-time with your rent as a Swiss watch. Laurie could refuse to renew your lease for any reason and there isn't much you could do about it. What does this have to do with the U.S. use of power on the global stage? Bear with me because I'm headed to a point here. If Craig owned his own apartment complex, he wouldn't necessarily care about how Laurie treats her renters but if Laurie were to convince Craig that a particular renter, Kelly, was a troublemaker then Kelly could find himself with fewer and fewer options but to capitulate to Laurie.
Here is the Geo-Political connection. At what point would Craig stop listening to Laurie and give Kelly a fair shake regardless of what Laurie says? If Laurie is the U.S. then she should be careful how much of her weight she throws around because the loss of her reputation among apartment-owning circles isn't that apparent at first. The question she should ask herself is whether a particular outcome will increase or decrease her influence and whether repeated uses of her influence could create a situation where the other owners turn a deaf ear to her requests. If she were to appear to be unfair to her own tenants, that might influence the other owners, much like the boy who cries wolf.
The U.S. needs to treat it's foreign influence like a rare and precious thing. Horded and collected, it becomes desired and respected e.g. financial advice from Warren Buffet; diluted and dispersed everywhere, it becomes cheap and ignored, e.g. paper money from a government who won't stop printing more and more money. So what if Hamas won an election, isn't the principle of elections more important than which party won? We're so interested in elections in Iraq but we're shown as hypocrites when Hamas wins a fair election and we refuse to aid to a government to which we've previously pledged our support. We show through our actions just how much we believe in free and fair elections so we should not be surprised when our foreign influence wanes.
Here is the Geo-Political connection. At what point would Craig stop listening to Laurie and give Kelly a fair shake regardless of what Laurie says? If Laurie is the U.S. then she should be careful how much of her weight she throws around because the loss of her reputation among apartment-owning circles isn't that apparent at first. The question she should ask herself is whether a particular outcome will increase or decrease her influence and whether repeated uses of her influence could create a situation where the other owners turn a deaf ear to her requests. If she were to appear to be unfair to her own tenants, that might influence the other owners, much like the boy who cries wolf.
The U.S. needs to treat it's foreign influence like a rare and precious thing. Horded and collected, it becomes desired and respected e.g. financial advice from Warren Buffet; diluted and dispersed everywhere, it becomes cheap and ignored, e.g. paper money from a government who won't stop printing more and more money. So what if Hamas won an election, isn't the principle of elections more important than which party won? We're so interested in elections in Iraq but we're shown as hypocrites when Hamas wins a fair election and we refuse to aid to a government to which we've previously pledged our support. We show through our actions just how much we believe in free and fair elections so we should not be surprised when our foreign influence wanes.
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