Thursday, June 30, 2005

Maine and Gay Discrimination

Religious conservatives associated with two state organizations may have collected enough signatures to put a vote on a new gay rights law up for a vote. The law in question probhits anti-gay discrimination in employment, housing, education, public accommodation and credit but does not authorize domestic partnership legislation, civil unions, or marriage. Two groups that collected the signatures urging this repeal, the Christian Civic League of Maine and the Maine Grassroots Coalition, apparently collected 57,000 votes - approx 6,000 more than they needed to. On two prior occasions, they succeeded in their mission to have similarly-worded legislation repealed.

The legislation in question does not provide for gay union benefits of any kind and since the legislators around are well aware of domestic partnership and civil union legislation that passed in other states, the antidiscrimination law they passed in no way can be interpreted to authorize such benefits. If the legislators wanted to provide such benefits, they would have passed domestic partnership, civil union, or marriage legislation to that effect.

The law more than likely was created in order to protect gay employees who either outed or out themselves from being fired on the spot, the a genant tenant from an eviction notice on account of their sexual attraction, and the gay high school student from harrassment or unequal treatment in extracurricular activities.

Our Supreme Court has not yet ruled on this matter, but the banned discrimination referred to here seems constitutionally dubious to begin with and should, as the Maine legislators did, be prohibited. The Equal Protection Clause to the Fourteenth Amendment requires people who are similarly situated to be treated alike provided there is is no rational basis related to a legitimate government interest justifying discrimination. And the law in question in forbids discrimination in those areas where gay and straight Americans have a lot in common. The manager at a Target Store or the CEO at any big company would have no rational basis to discriminate between two employees on account of their sexual orientation, and the landlord would have no basis to distinguish between the gay and straight couple "living in sin."

Maine's voters will have a third opporunity to strike this law down, but they should decline. There is no reason why gays should be deprived of the right to make an honest living, or the right to a home. Gay rights activists fought similar repeal efforts twice arleady and failed, but this blogger hopes the third time is the charm and they finally succeed and stop the voices opposing tolerance.

The President's Speech Continued

"The terrorists know that the outcome will leave them emboldened or defeated. So they are waging a campaign of murder and destruction. And there is no limit to the innocent lives they are willing to take.
We see the nature of the enemy in terrorists who sent a suicide bomber to a teaching hospital in We see the nature of the enemy in terrorists who behead civilian hostages and broadcast their atrocities for the world to see.
These are savage acts of violence, but they have not brought the terrorists any closer to achieving their strategic objectives.
The terrorists, both foreign and Iraqi, failed to stop the transfer of sovereignty. They failed to break our coalition and force a mass withdrawal by our allies. " George W. Bush

Notice that our president is turning what is at best a stalemate into a victory. Did the Vietnamese kick us out of their country or did we give up and leave on our own? So who can afford the stalemate and who cannot?

Wednesday, June 29, 2005

The President's Speech

To no one's surprise, President George W. Bush reaffirmed his commitment to the mission in Iraq and refused calls to set a timetable for our troops' withdrawal from the war-torn country because it would embolden our enemies to retake Iraq when we leave.

This blogger agrees with the president's main point, for leaving now wouldprovide terrorists who owe no allegiance to any country a chance to gain a new foothold for terrorist training to replace the one we took from them in Afghanistan. The costly and still unfinished nation-building efforts in Afghanistan would all have been done in vain should al Quaida and sympathizers take over the even more strategically-placed Iraq. Should a terrorist-sponsoring Iraq overlook weapons trafficking between Syria and Iran, peace efforts in the Palestinian Territories, and Lebanese independence could be seriously undermined.

In all likelihood, Mr. Bush bought some time with conservatives who were beginning to lose faith in his ability to conduct the war. The alternative to winning the peace in Iraq does not look good and his repeated references to the World Trade Center bombings of September 11. reminded them of the reason why we cannot let the terrorists win.

If the president was seeking to win over some critics who believe we need a major shift in strategy in order to win this war, he will be disappointed. The president glossed over the growing sectarian rife in the country to focus on the international community's cooperation in training Iraq's new security forces, and he mistakenly lumped all elements within the insurgency together as a band of anti-liberty terrorists with a "criminal element." (Nor do they, as the president says, need to overthrow the Iraqi government to win.)

The terrorists are united in their anti-American hatred but they differ as to their vision for Iraq. In all likelihood we can expect Sunnis to support the former Baathist rebels should the Kurds and Shi'ites fail to protect their interests but the religious terrorists will find their chief support from al Quaida the Iranians who will stand to benefit if the Kurds win and Iraq is left with a weak central government.

Mr. Bush, to be sure, did refer to the transitional governments' efforts to rebuild a new, viable, multi-ethnic, and democratic state. He pointed to the Shi'ites' acquiescence to allow for more Sunni participation in the drafting of a new constitution but made it appear as if the three major factions would unite behind a strong federalist system like ours when they could just as easily settle for a confederationist system with a very weak central government in Baghdad.

We need to win the peace in Iraq and Mr. Bush is right to keep the troops there until we do win, but that case was already made by his strongest critics. No, he had to provide us with some guidance as to how we will win.

Tuesday, June 28, 2005

Atlases but not Books

"By now the supposedly crucial question is whether to a reasonable observer a religious display on public property constitutes government "endorsement" of religion. So governments try to dilute the displays' religious content, as Pawtucket, R.I., did. In 1984 the Supreme Court declared Pawtucket's Christmas creche constitutional because it included a reindeer, a sleigh, Santa's house and other secular bric-a-brac.

Decades ago, the court ruled that the establishment clause was violated if government supplied books to religious schools but not if it supplied maps. Pat Moynihan wondered mischievously: What about atlases, which are books of maps?" - George F. Will

I think Mr. Will is referring to the Meeks, Wolmar and Regan cases where the Supreme Court were asked to consider what secular services they could fund, from standardized secular multiple choice tests, overhead projectors, to, yes maps, rulers, and books.

Now, my readers should know by now that I tend to align myself with O'Connor on religious establishment cases and like her focus on government endorsement and whether some reasonable observer would believe the government is endorsing religious beliefs or not. They would also know that I oppose school prayer, supported Newdow's quest to remove the phrase "Under God" from the Pledge of Allegiance, and have some trouble with the president's charitable-choice plans but support some religious displays based upon their context, and didn't see any establishment violation per se with respect to school vouchers.

Still, I can see the late Moynihan was talking about, and his humor is well appreciated, for there was no principle distinction between subsidizing maps but not books and vice versa but we are beyond that. Justices Stevens, Souter and Ginsburg would probably vote against all such school funding, but O'Connor and Breyer joined the conservatives in supporting such funding without that dubious distinctions made in earlier cases (Mitchell v. Helms).

By the way, I'm watching "Hannity and Colmes" at this late hour and former Alabama Supreme Court Roy Moore is making a dubious distinction of his own - that between religion and god.
Mr. Moore says professed acknowledgement of god is not professed acknowledgement of religion but that obviously cannot be true since one's own preconceptions regarding the attributes he or she would give to that god (and this is, of course, assuming there is only one or any) is inherently based upon his or her own religious beliefs. Religions are defined by their adherents' allegiance to their gods.

Quotes from Ten Commandment Rulings

1. Well, swing Justice Stephen Breyer win's the O'Connor award for writing narrow opinions that leave policy makers who must abide by these decisions in doubt:

"The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 593—594 (1989); Zelman, supra, at 723—725 (Breyer, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983). Such absolutism is not only inconsistent with our national traditions, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Lynch v. Donnelly, 465 U.S. 668, 672—678 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.
Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp, 374 U.S., at 306 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure “neutrality” alone are insufficient, both because it is sometimes difficult to determine when a legal rule is “neutral,” and because “untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” Ibid. ... If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment."

Oh boy. Try figuring that one out. Wait, here's more and he is referring to analysis O'Connor used in Lynch v. Donnelly and Allegheny County v ACLU.

"On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the Diety. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.
In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)–a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. See generally App. to Brief for United States as Amicus Curiae 1a—7a.

Compare that to O'Connor's statement in Lynch.

"The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective" meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government "speaks" by word or deed, some portion of the audience will inevitably receive a message determined by the "objective" content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning."

"For these reasons, I believe that the Texas display–serving a mixed but primarily nonreligious purpose, not primarily “advanc[ing]” or “inhibit[ing] religion,” and not creating an “excessive government entanglement with religion,”–might satisfy this Court’s more formal Establishment Clause tests. Lemon, 403 U.S., at 612—613 (internal quotation marks omitted); see also Capitol Square, 515 U.S., at 773—783 (O’Connor, J., concurring in part and concurring in judgment). But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular test than upon consideration of the basic purposes of the First Amendment’s Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.
At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U.S., at 717—729 (Breyer, J., dissenting)."

Practical Mr. Breyer but what makes something "divisive?" Is it based upon the number of complaints or protests an ACLU or ACLJ can organize?

2. Justice David Souter on religious neutrality in the other case:

"Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, Wallace v. Jaffree, 472 U.S., at 52—54, and n. 38, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists). "

3. Justice Sondra Day O'Connor on religious liberty and freedom:

"The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions–one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees–of free speech, a free press, and the rights to assemble and petition–the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.
By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. "

4. Justice O'Connor on religious minorities:

"Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside the First Amendment’s protections. There is no list of approved and disapproved beliefs appended to the First Amendment–and the Amendment’s broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all."

5. Justice Scalia's Dissent:

Display of the Ten Commandments is well within the mainstream of this practice of acknowledgment. Federal, State, and local governments across the Nation have engaged in such display.11 The Supreme Court Building itself includes depictions of Moses with the Ten Commandments in the Courtroom and on the east pediment of the building, and symbols of the Ten Commandments “adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom.” Van Orden, ante, at 9 (plurality opinion). Similar depictions of the Decalogue appear on public buildings and monuments throughout our Nation’s Capital. Ibid. The frequency of these displays testifies to the popular understanding that the Ten Commandments are a foundation of the rule of law, and a symbol of the role that religion played, and continues to play, in our system of government."

"Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The “fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 213 (1963). "

And So There Are Three Swing Justices

Yesterday the Supreme Court released its opinions concerning two controversial Ten Commandment displays - one on the Texas court yard near the capitol and one in a Kentucky court room. The Court last heard a challenge to a Ten Commandment display in 1980 when it struck down as unconstitutional displays in public schools but yesterday's two rulings should come of no surprise considering the court's legal jurisprudence on religious holiday displays, in which the Court upheld government-sponsored displays that included some religious references as a part of a more general secular message while striking down those displays that exclusively dwelt on the religious messages.

I am nevertheless surprised by the vote, considering that Clinton-appointee Stephen Breyer, and not Sondra Day O'Connor, provided the key swing vote in both cases. Justice O'Connor voted to strike down both displays as unconstitutional, aligning herself with the majority in Kentucky case and the minority in the Texas case, but Mr. Breyer voted to uphold one display and strike the other down as unconstitutional.

The press considers Justices Anthony Kennedy and Sondra Day O'Connor the key swing justices on the court. We all know of Justice O'Connor and Kennedy's independent streaks. O'Connor has written narrow middle-of-the-road opinions that are not designed to shift our understanding of constitutional principles. She voted to uphold one religious holiday displayand strike down the other. She casted the deciding vote overturning Alabama's "moment of silence" law but left the door open for other "moment of silence" laws enacted in other states. She upheld one affirmative action program but struck down the other. She voted to strike a Texas sodomy law down as unconstitutional but on narrower equal protection grounds and she voted to reaffirm abortion rights while upholding most restrictions against them. And she voted to grant American war combatants some legal rights to representation while not granting them full trial court rights.

For is part, Justice Kennedy has written broad opinions reflecting changes in legal jurisprudence. He cast the decisive vote overturning Bowers v. Hardwick to overturn the Texas sodomy statute. He broadened the meaning ot "coercsion" to forbid school-sponored prayer ceremonies at high school graduations and then joined in Justice Steven's ruling applying that same principle at high school sports events. He reversed a ruling he joined earlier and voted to strike down as unconstitutional the execution of convicted criminals who are mentally retarded or minors. He wrote the "mystery of human life passage" Justice Scalis ridicules for having, in his view, no place in constitutional jurisprudence and even when he joined in Justice O'Connor's narow compromise ruling on American war combatants he undermined that with his own concurring opinion in Rasul, opting to set an unofficial time limit on the presiden't war detention policies.

But yesterday's Ten Commandment rulings prove there is a third regular swing justice on the court - Justice Breyer. The Clinton-appointee surprised almost everybody when he joined Justice O'Connor in a narrow concurrence upholding Louisiana's state education funding program even though it included funding for computers and other non-sectarian equipment at parochial schools, voted to give porn less Free Speech protections than other types of speech on at least two occasions, joined in O'Connor's American war combatant policy, and just recently voted to uphold a Ten Commandment display on narrow grounds. Justice Breyer is proving to be the O'Connor of the left. He generally votes with his ideological partners but every now and then aligns with those on the other side along narrower grounds.

Just goes to show that president's cannot plan for everything when they appoint court judges.

No Resignations on Court Yet and Why That May Be The Case

The Supreme Court ended this session with no resignations from Chief Justice William Rehnquist or his associates Sondra Day O'Connor and John Paul Stevens. Speculation has revolved around Mr. Rehnquist since he suffers from thyroid cancer and is receiving chemotherapy and swing justice O'Connor. Justices could resign whenever they want to, so the confirmation battle could theoretically begin anyday now.

Legal scholar Carl Tobias says Mr. Rehnquist may be holding out until he hears more from his doctors concerning his health but let me speculate for a moment and suggest a more political and perhaps cynical reason - that Mr. Rehnquist or Mrs. O'Connor are holding out until they think our president can fill their seats with someone of his choosing.

The filibuster has been preserved for now but the deal forged by a coalition of conservative mavericks and moderates may not survive another appeals court nominee. Mr. and the potential conservative nominees may believe they have a better shot of getting someone of their ideological disposition if the senate had to ratify a nominee when the court is in session.

The intense political pressure to confirm Mr. Bush's nominees will be strongest when the court is in full session and deciding case law one or two justices short. Fearing voter backlash, Republican and Democratic moderates who might otherwise vote against a Robert Bork will fall into line far more quickly if such a vancy were to occur while the court was in session. Mr. Bush will no doubt expolit that opportunity and let Senator Frist condemn Democratic "obstructionists" who would vote against letting the full court "get on with its business."

Are the Democrats considering that possibility? Have they formulated a battle plan should that happen? We may know shortly.

Monday, June 27, 2005

Lawrence v. Texas and Gay Pride

Two years ago from yesterday, the Supreme Court overturned a Texas sodomy law barring homosexual intimacy and with it, its prior ruling in Bowers v. Hardwick, a ruling the Court admitted was not in compliance with its prior rulings on privacy and sexual intimacy.

June is gay pride month and given that the month is now ending I might as well make a small contribution by re-printing here, several excerpts from that opinion that concern gay relationships and what the gay rights movement is all about. Bold-faced was added for emphasis.

"To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

"When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons."

"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

How far we have come. Yes, we have over-reached in pushing for marriage too soon when we should be concentrating on the beneifts that go with it and when job discrimination on account of one's sexual affectations is still legal in most states and when anti-gay harrassment is still tolerated if not accepted in most schools. We nevertheless have come far. In 1986 our relationships were dismissed as inconsequential. In fact, they were not even recognized as relationships. Here we have Justice Keneedy acknowledging the truth - that in fact gays do in fact enter into relationships that are just as meaningful to them as marriages are to straight people, that the bonds between them may be no less inconseqential or entitled to liberty and that the restrictions upon those relationships can be "demeaning."

Gay rights activists have indeed accomplished a lot. We won a lot because many of our number came out to those around us and they saw that we were just like them, that we had the same dreams they had - to find a good job, find a soulmate, and raise a family. That's why Kennedy voted in the way he did. He saw gay intimacy for what it it could be - an act of love.

The Flag Amendment Proposal

"And, precisely because it is our flag that is involved, one's response to the flag-burner [p420] may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." - Justice Brennan, writing for the Supreme Court (Scalia, Kennedy, Souter, Marshall, Blackmun joined in the opinion) in overturning a flag desecration conviction in Texas.

Flag burning isn't really that popular in this country, so the flag burning amendment that passed in the House and now goes to the Senate for approval allows Republicans to align themselves with the voting public's values while Democrats vote to allow others to descretate the banner our soldiers rally behind as they risk their lives defending our freedom.

We nevertheless don't need a flag burning amendment to renew our patriotic fervor. Most Americans love our country and support the troops making the ultimate sacrifice on our behalf. Flag burning is unpopular, so there is no real need to support it, and as Justice Brennan said in the opinion linked above, we can easily wave our flags in support of our country when others choose a different course of action. We can always teach our children to respect our national symbols since it was founded upon liberty, equality, and respect for all.

The amendment is narrowly tailored to ban flag descration and not all anti-American speech but it certainly amounts to an important symbolic statement limiting free speech. Flag burning allows one to defiantly express his or her contempt towards the establishment and political system he or she abhors short of civil war or insurrection and allows them to distinguish themselves from those protestors who seek merely a redress of grievances in front of an establishement they recognize as legitimate.. To prohibit such desecration is to force one to show respect towards that which he or she may hold in contempt and deny the mainstream protestor from the would-be-flag burner an important means to distance themselves from each other.

Flag burners challenge those of us who want to hold true to our principles on free speech. We hate their message and what it represents, particularly when our husbands, wives, sons, daughters, romantic partners, cousins, and friends die overseas fighting for all that that flag represents. We think their flag burning dishonorable and when the burning is done to express one's opposition to a war, we view it as an act of disloyalty to our troops.

But if we are to remain true to our principles, we cannot restrict freedom whenever somone uses it in a manner we don't like or whenever they promote a message we abhor. The same principle that gives us a right to wave our flags gives others a right to burn it. When they oppose hate crime legislation, conservatives and libertarians like to say we can answer to the bigots with speech of our own. Gay rights groups counter-protest rallies held by conservative theocrats and vice versa. The answer to hate speech is more speech. The same applies here, as Justice Brennan so eloquently noted above.

The Supreme Court has spoken on this issue at length but it cannot strike down as unconstitutional this amendment. Federal Amendments are by self-definition constitutional, but whatever the case, this amendment would represent a break from that principle our founding fathers hold dear.

I could just imagine what our Founding Fathers would have done. We all heard of the Boston Tea Party. Would it not be possible for them to burn the British flag as well? Would Thomas Jefferson, Patrick Henry, James Madison and the others have burned the flag? I don't remember any of them doing so, but I wouldn't be too suprised if they supported it should one colonialist in defiance have chosen to do so.

Justice Kennedy Just Too Liberal for Them

David Souter, Sandra Day O'Connor. Move over. Your more conservative associate Anthony Kennedy has replaced you as the theocrat's new bogeyman given his ruling to overturn Bowers v. Hardwick and extend privacy rights to gays, overturn a Colorado initiative that rendered that class of people unequal in every respect, apply free speech rights to pornography and anything that they view as immoral, and overturn death penalty convictions against the mentally retarded and minors because he said they amounted to "cruel and unusual" punishments when applied to these less culpable minors.

Let's not forget that he is a conservative. He voted to strike down as unconstitutional, affirmative action programs, upheld Boy Scouts' free association rights against a gay rights claim, and supported conservatives on most religious constitutional questions. David Souter has more consistently sided with the liberals and he is in fact, further to the left than Clinton-appointee Stephen Breyer who, after all, did vote to uphold a school funding program that included religious schools (Mitchell v. Helms), support a more restrictive free speech approach with respect to pornography (Souter was on the left), and joined with Kennedy, Rehnquist, and O'Connor on war combatant polices as applied to American citizens.

But Kennedy, in writing the opinions affirming abortion rights, striking down school-administered prayers at graduation ceremonies, and Bowers v. Hardwick has become the new lighting rod.

The conservative theocrats' standards have been upped. They want someone who will overturn these rulings and vote consistently to uphold any law that imposes their moral philosophy on their fellow citizens while striking down as unconstitutional any law that grants their opponents the same rights they have.

Oh boy. Get ready for a real fight and watch as they plan their coup d' etat so the constitution is reinterpreted to uphold the moral tyranny they would impose on the rest of us.

Dan Asumussen

Better late than never.

Friday, June 24, 2005

Private Property Rights Lost in Court Today

"...the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public–such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. ...
Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983)."
Justice Sandra Day O'Connor in Kelo v. New London

I really don't have anything to add. This was a disappointing verdict that only helps wealthy political contributors who want to make some money. As Justice O'Connor said in her dissenting opinion, any big corporation can make the claim that it will bring jobs into a given community, thereby negating any distinction in principle and practice between takings for "public" and "private" use. Get ready for political donations.

So what do we do now? Call your assemblymen and senators now and let them know that we want stronger legislation protecting our property, particularly when the taking involves the very places we live in. The Court said there is not Fifth Amendment right for higher protection but that doesn't mean a state cannot by law grant that kind of protection.

A Few Thoughts On Senator Biden's Iraq Speech at Brookings Institute

This Sunday on "Face The Nation," Senator Joseph Biden of Delaware said he would enter the race for the White House if he believes he has a "clear shot" at winning. The pundits say his junior colleage from New York, Senator Hillary Rodham Clinton, is the presumed Democratic favorite. But in his speech at The Brookings Institute earlier this week, Mr. Biden aptly demonstrated his command of foreign policy analysis and attention to detail, making him a credible alternative.

Senator Biden refuted the administration's "rosy" assessment about the on-going war in Iraq point by point while re-affirming our commitment to the cause and rejecting as disastrous, calls for troop withdrawal from Iraq. Politically, this may be risky if the American public insists upon a complete troop withdrawal or exit strategy just before we vote for a new president. Mr. Biden may have backed himself into a corner by suggesting that important national interests are served by ensuring stability in Iraq but on the substance of what he said, the senator is correct.

Notwithstanding our administration's "rosy" contention that the insurrection is in "the last throes," terrorists from other countries immigrate into Iraq from Syria with impunity and conduct suicide attacks that hamper our reconstruction efforts and have killed thousands. The Iraqi forces are under-trained and have not been able to restore order in their own country, and even if it was trained its mission is in doubt since the national government refused to disarm the sectarian militias dominated by Shi'ites and Kurds.

Even if the insurrection was, as the adminstration suggested, in "the last throes," a new one may potentially arise. Iraq's constitution has yet to be drafted and voted upon, and the conflict between the Kurds over its nature (confederationist vs. national) and over the boundaries (Kirkuk ownership and with it, oil revenues) remains to be solved. News reports from this and last week point to the Kurds' latest campaign to remove through fear Turkomens, Sunnis, and other minorities from the Kirkuk oil field region in northern Iraq. Shi'ite militias are punishing the Sunni population for crimes committed by Saddam Hussein and Sunni terrorists continue to resist the main benefactors (Shi'ites and Kurds) from his fall from power.

Mr. Biden offered a sobering assessment of the present situation in Iraq and the difficulties we will encounter should the administration of future ones choose to remain in Iraq to finish the job we started. He then offers little hope for those choosing the easy way out. Senator Biden says we have four options.

We can either (1) stay the course without a plan which is what he believes our administration is doing, (2) pull out as some Democrats and Republicans now suggest, (3) cut our losses and manipulate the political balance of power and by supporting a loose confederation run by the Shi'ites and Kurds, or (4) engage in the very hard and tedious task of nation-building as he suggests.

If we alter the balance of power and side to the Kurds and Shi'ites, we may hamper terrorists who want to hurt us but we may foster sectarian violence that culminates in civil war that allows the Iranians to gain influence in the Shi'ite-controlled region (and a no-man's Kurdish region that seeks alliances with anyone opposing NATO-ally Turkey). The first option obviously is not working and could very well lead to the civil war he fears if we chooose option 3, as would option 2 (Mr. Biden says the terrorists may decide to wait us out and then go to war or continue to attack us until we leave).

That leaves us with the ambitious and bold but essentially cumbersome task of convincing three groups that do not consider themselves kin to somehow unite under a shared political identity. Senator Biden says we must strengthen Iraq's army through training and suggests that we encourage Baghdad to send these troops overseas for training as some of our allies have suggested so that they will not be interrupted by the daily terrorist attacks that plague Iraq. He also says we should push the Iraqi government to dismantle and disarm the persh merga and al Badr Brigades that act in their sectarian group's interests but undermine Iraq's territorial and sovereign integrity.

The first suggestion can and should be followed if only because our current strategy is failing miserably but it ultimately will not solve the problem if the second issue is not dealt with. As I have said last week, there is no reason to create a third army with an undefined mission when the Iraqis have not even decided upon their country's fate as a confederation, federation, or unitary government and when the two militias that have protected the sectarian interests of the very people they claim to represent have not been disbanded.

The problem with his second recommendation is that it is easier said than done. Neither the Kurds nor the Shi'ites will relinquish the very armies that give them the very bargaining chips they have going into the constitutional debates. These sectarian armies or militias have important symbolic and strategic value to the parties that govern them.

For the Kurds, the Persh Merga serves as its chief enforcer in their reverse ethnic cleansing campaign to remove all non-Kurdish elements from the Kirkuk oil field region, protect their autonomy from any Iraqi campaign to suppress them, and remind their people of their long and delayed but otherwise unrelinquished quest for independence. The Shi'ites can use their own milita to enforce Shi'ite control in Iraq "proper," and punish the Sunnis who once benefited under Saddam Hussein.

Mr. Biden would have us believe that we are in control in Iraq when in fact, we are not. In removing Saddam Hussein we unleashed political forces that are beyond anybody's control and we are now forced to sit back and let nature take its course. We cannot force the Kurds to give up the Persh Merga that is fighting the terrorists making their way into Iraq and we cannot force the Shi'ites who are, of course, the predominant religious group in Iraq, to do likewise. We may, and should, encourage Baghdad to follow his suggestions but at the end of the day, nothing substantive may occur until after the constitution is drafted and put up for a vote by the Iraqi people themselves.

The senator from Delaware would also have the president or members of his national security team give a report to Congress on a regular basis. In an ideal world this cooperation would go without saying. The president should at minimum consult with the leading representatives from both parties on the Foreign Relations and Armed Services Committees on a regular basis but these meetings should conducted in private.

Our adminstration's already questionable credibility would be tattered and rendered impotent if it were forced to give regular progress reports to the Congress, for it would strengthen the perception that Mr. Bush is not a credible commander-in-chief. Mr. Biden knows that our president will decline for that reason so this was probably his way to distance himself from the president and the Republicans without altering his views about Iraq and the mission we have yet to accomplish.

Whether Bush is or is not credible is besides the point. He should as a matter of faith and courtesy level with the public but it should be done on his own terms so that it wouldn't hurts the White House or the presidential office as an institution. Heads of state from around the world should know that our president is strong and speaking for the country as a whole. If the president is forced to give the Congress and the public regular progress reports or report cards, that perception and the president's own negotiating power is substantially undermined.

These disputes aside, Mr. Biden has more than proven himself to be a capable spokes person for his party on national security and will make important contributions to any debate ont he subject. This blogger hopes that Mr. Biden will stay in the race for the long term if only to force others who would seek the nomination to think as criically as Mr. Biden does on this very important but seemingly neglected and unpopular topic.

Thursday, June 23, 2005

Senator Biden's Speech: Leveling with the American People

"The first order of business is to regain the confidence of the American people. In case they haven't noticed, they, the American people, no longer take the administration at their word about Iraq. That is a very important point from my perspective.

I propose in order to regain that confidence, that we forge a new compact between the administration and Congress to secure the informed consent of the American people for the remainder of the job, the difficult job that has to be done so that they will give the prescient the time we need to suceed in Iraq. Specifically,the administration should develop with Congress clear benchmarks and goals in key areas: security, governance and politics, reconstruction and burden-sharing.

We, in Congress, in my view, should aggressively assert our oversight responsibility by insisting the administration report on the progress toward these goals every month in public testimony. I'd expect the administration to detail what they think they've achieved, where they think they've fallen short, why they've fallen short, and what help in fact they need to regain the initiative. "

Senator Biden's Speech: The Four Options

I'll comment on Mr. Biden's speech later butI want to provide more excerpts from the speech in the meantime.

"And fifth, we must refocus the Iraqi government on how to eventually reintegrate all militias in Iraq. The Badr Brigade, the Mahdi Army, the peshmurga, their causing sectarian and social tensions in Iraq. They cannot - you cannot have a functioning state, a unitary government with militias beholding to parochial interest. That cannot be done immediately, but we should begin the process now of making it clear that is what is needed for a unitary state." - Joseph Biden while at The Brookings Institute this Monday

"...These are the stakes in my view. And let me state to you what I think the options are. The options are basically four.

First, we can stick with the status-quo and try to muddle through. I think that is a prescription for failure. It is not working now. And nothing leads me to believe it can work.

Second, we call it quits and withdraw. I think that would be a gigantic mistake for reasons I stated earlier. Or we can set a deadline for pulling out, which I think will only encourage our enemies to wait us out, equally a mistake.

Third, we can limit our losses, which may end up being our only option if we don't do the right thing in the near term. We may limit our losses by manipulating the emerging balance of power in Iraq and throwing our weight behind the Kurds and the Shiite. Our bottom line national security interest, which will be preventing the new springboard for terrorism, might be preserved if we took that route. But there will be a real risk of a Lebanese-style civil war.

Mr. Biden would have us remove Iraqi armed force trainees from the country and be taught in other countries free from terrorist activities, crack down on immigration at the Iraqi-Syrian borders, and pressure the Iraqi government into dismantling and disarming the sectarian militias run by the Kurds and the Shi'ites.

Wednesday, June 22, 2005

Senator Biden's Speech at Brookings

Senator and likely Democratic presidential contender Joe Biden spoke at The Brookings Institute and refuted our administration's contention that the insurgency is in the "last throes" and consequently we are winning the war in Iraq. I'll let him do the talking (PDF file). If I have anything to add or refute it will be done later. In the meantime, this blogger will leave you with a quote for thought.

"Success, as I define it, is leaving Iraq better than we found it, not a Jeffersonian democracy, which I for one have never believed as a remote possibility, but a unified country with a representative government where all the major factions think they have a stake in the deal, a stake in the government, with the territorial integrity in tact, and not a threat to its neighbors nor a haven for terrorists. That is success from my perspective.

Let me define what I call a disaster: a country which left to its own devices disintegrates and becomes a playground for Iraq's neighbors and a training ground for terrorists. That is a real possibility. If it becomes a reality it would embolden our enemies, encourage terrorism, undermine moderates in the region, badly damage our credibility that we are going to need to lead other countries against new threats. It will even send oil prices even higher. In short, it will hurt our national security interests for at least a decade to come."

Comments will folllow later.

"Balancing" Speech

"There is more than a trace of irony in the fact that the most freedom-loving people on the planet have decided collectively that some words, in some situations, are just too threatening to good order and comfort to allow.
But there it is. We can and do punish words far beyond that narrow list of unprotected expression that includes obscenity, defamation, fraud and fighting words. Indecency, hate speech, violence in the media, advertising aimed at children — you name it and there’s a group of Americans who believe it shouldn’t have First Amendment protection.
So we lower the value of speech that we do not consider as contributing sufficiently to the marketplace of ideas or that does not help govern or that might inflict injury or give offense. We do this in the name of the children, or morality or civility. This process is called a “balancing” of other rights and interests with the freedoms guaranteed in the First Amendment. ...
Balancing, by definition, turns over to those in power and the majority the right to direct and decide what those without power or outside the majority can say. That, of course, is precisely what the First Amendment was written to prevent.
- Paul McMasters

I of course tend to agree with Mr. McMasters but if in fact balance is what he says it is, how can we support it and still hold true to the First Amendment? It's like the "difference" between liberty and license. Conservatives often speak of a supposed difference between liberty and license in order to distinguish between the freedoms they want from those they do not want anyone having. Where exactly is the boundary between the two and where is the principal upon which to justify that boundary? They never did answer that question to my satisfaction. After all, one might consider another's liberty as a license and another might view that same license as the proper exercise of one's liberty, so on what principle do they distinguish one from the other?

The same principles applie here but it's worse since we are talking about speech. One person's speech may be offensive but nothing deprives the offended person from responding in kind so I am not quite sure what we need to balance in most of these cases. Either we have almost unlimited free speech rights or we have almost none. You know which side I am on in that debate.

Hitler and Stalin Analogies

The Washington Post has an article on Hitler analogies that have been used recently by members from both parties. I guess it wouldn't be too hard to find some humor in it if the politicians from both parties weren't comparing and contrasting their grievances with that of Jews, Gypsies, Slavic people, gays, and the others who were sent into the concentration camps to work and die.

Of course, few would buy into these comparisons made by Senators Rick Santorum, Robert Byrd, Dick Durbin, and that representative from Amnesty International.

John R. Bolton

Senate Majority Leader Bill Frist once again failed to win the necessary senate votes needed to bring John R. Bolton's nomination to the floor for a vote. President George W. Bush nominated Mr. Bolton to become our new United Nations representative but his nomination was called into question when one Republican, Senator George Voinavich of Ohio, broke with his party and said he would not vote for him should the nominee get an up or down vote. Critics say Mr. Bolton does not get along well with his employees and has bullied intelligence officers who disagreed with him and made some disparaging remarks about the United Nations. Democrats now are requesting some classified information concerning some remarks he said about Syria and possible intel that would help determine whether he was seeking information on some rivals within the intelligence agency.

The PoliticalHeretic does not know if these accusations are true or false because the documents which the predominantly Democratic critics are seeking have not been released for review. While he believes that our president should be allowed to appoint ambassadors, executive bureacratic leaders and cabinet officials without the partisan warfare that takes place in Washington , the PoliticalHeretic considers the critics' request modest. If the senate is supposed to advise and offer its consent to the president, it should be provided the very information it is requesting to help it reach a good decision.

Some skeptics may say the Democrats are seeking to weaken our president and force him to appoint someone who is less controversial. While the PoliticalHeretic does not dispute this, he believes the public would see through that tactic should the Democrats drag the hearings on endlessly with a fishing expedition. Mr. Bush is our head of state and the commander-in-chief of the armed forces. On issues relating to foreign policy and national security especially, we must present a united front but the senate's squabbling and recess appointments would undermine our president. He would be entitled to an up or down vote on his nominees with as little obstructionism from Congress as possible.

Tuesday, June 21, 2005

Condoleeza Rice's Speech in Cairo

Secretary of State Condoleeza Rice challenged some of our strongest allies in the Middle East when she pushed for democratic reforms in a speech she delivered at the American University in Cairo yesterday. The news reports suggest she did not go far enough to win over political dissidents in Egypt and Saudi Arabia and her comments were dismissed by the governments within both countries.

Dr. Rice's comments were measured, saving her most strident criticism for our enemies. Syria was referred to as a "police state" which continues to "harbor or directly support groups committed to violence" in Lebanon, Israel, the Palestinian territories, and Iraq while Iran was referred to as "theocratic state" run by an "oppressive regime" which masks its cruelty with the "appearance of elections." Our Secretary of State urged Syrians to make a "strategic choice" and join its neighbors in their path towards democratic reform and the war on terror and the Iranian mullahs to free the Iranians from their grip.

The Saudis and Egyptians, no doubt, received some praise for some minor reforms their governments have pushed through but the criticism and push for democratic reforms could not be so easily dismissed by authoritarians in both countries. Condoleeza Rice said the Saudis have made "some good first steps" towards open government by conducting free municipal elections but pointedly reminded Saudis of three political dissidents were thrown in jail for petitioning their government, all but urging for their release. She urged their government to allow women to vote as well.

Dr. Rice praised Egyptian President Hosni Mubarak for his leadership in the Middle East and allowing for an opposition candidate in Egypt's upcoming elections but outlined in detail some requirements before the international community and the political dissidents within the same country could view those reforms as legitimate. She called for an independent judiciary, an end to emergency decrees, the right of opponents to assemble and speak to the media, fair and competitive elections free of violence, and for international monitors to monitor elections freely.

This blogger would have found her remarks troubling if not for the important caveats she mentioned. During her speech and later when questioned, Dr. Rice said our administration has no designs to force democratic reforms on either government and when pressed about any economic sanctions should Mr. Mubarak or the Saudi Crown Prince fail to implement promised reforms she declined to get into any specifics. Dr. Rice nevertheless is treading on thin ice. The more radical Muslim Brotherhood is one of the more popular opposition groups in Egypt and anything which may destablize Mr. Mubarak's regime could hamper our efforts in the war on terror should the Brotherhood win in free elections. She would better serve our interests by pushing the Israelis and the Palestinians to work more on the Gaza Strip pull out, and in the deteriorating situation in Iraq.

Monday, June 20, 2005

Enter Senator Biden

One week after I made this prediction, Senator Biden proved me wrong.

"And then there's Senator Joseph Biden of Delaware. The PoliticalHeretic believes he will not run for the White House unless he is willing to give up his senate seat which will be up for a vote at the same time but should he be tired of the senate and ambitious he would be a worthy candidate." - your now humbled blogger

"I know I'm supposed to be more coy with you. I know I'm supposed to tell you, you know, that I'm not sure. But if, in fact, I think that I have a clear shot at winning the nomination by this November or December, then I'm going to seek the nomination." - Senator Joseph Biden

Oh well. I can't be right all the time, and I think Mr. Biden would contribute to our debate on national security and boost his party's poor image on that topic. The senator from Delaware is sufficiently liberal on economic and social issues to win his party's base but his semi-hawkish war record will help him win over some left and right of center moderates who find the Republican Party's courtship with the religious right disturbing.

"This blogger considers him a leading Democratic spokesperson on foreign policy given his position as Ranking Minority Leader on the Foreign Relations Senate Committee, his consistent and forceful support of military and peace-keeping operations pushed by President George W. Bush and his predecessor, and his willingness to speak out on these matters on the talk shows. He voted to authorize military force in Bosnia, the breakaway Serbian province of Kosovo, Afghanistan, and Iraq and unlike Senator and former presidential candidate John Kerry, he has not wavered from his support. The Democratic senator from Delaware has criticized our president on the implementation and on the president's policy on war combatants but he re-affirmed his support for the war and opposes any efforts to withdraw our troops from Iraq. "

Senator John Kerry may have been an intellectual heavyweight whose views on national security had to be taken seriously but he an indecisive candidate who could not compete with against the "we know where he stands" alternative voters were looking for. Mr. Biden's work on foreign relations and his bipartisan approach to getting things done will serve him well when he runs for the White House.

The Supreme Court and the Death Penalty

Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the transcript, or whether there were circumstances extenuating the behavior described by the victim. The obligation to get the file was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and Rompilla’s sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.5
The notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense. As the District Court points out, the American Bar Association Standards for Criminal Justice in circulation at the time of Rompilla’s trial describes the obligation in terms no one could misunderstand in the circumstances of a case like this one:
“It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.” 1 ABA Standards for Criminal Justice 4—4.1 (2d ed. 1982 Supp.)
.6 - Justice David Souter, writing for the Supreme Court

The Supreme Court narrowly overturned convicted rapist and murderer Ronald Rompilla's death penalty sentence because his legal counsel failed to review evidence - evidence that might have led the jury considering his fate to spare him his life had they known about it. The Constitution requires states to provide defendants with adequate representation and a fair trial to contest the charges made against them.

Mr. Ronald Rompilla was convicted of capital muder after repeatedly stabbing Allentown bar owner James Scanlon and setting his body on fire.

Pennsyvlania warned Mr. Rompilla's attorneys that it would use his prior convictions for violent crimes as an aggravating factor but they did not review that file, depriving their client of any chance to refute the prosecution's use of any evidence found in the file and any evidence that might diminish Mr. Rompilla's moral culpability. The convicted murder's new defendants found evidence concerning Mr. Rompailla's troubled childhood, alcoholism, schizoprenic personality, and mental condition at the time he commited the capital crime that might have been used to spare their client from certain death.

Last week, the Supreme Court overturned two death penalty setences by votes of 8-1 and 6-3 on equal protection grounds because the prosecutors in both cases used peremptory challenges in jury selection in a racially discriminatory way. In March the Supreme Court used the Eighth Amendment's prohibition against "cruel and unusual punishment" to overturn a death penalty conviction and permanently bar its use with respect to minors and two years earlier it voted 6-3 to use the same constitutional amendment to prohibit the execution of the mentally retarded.

While these decisions refer to different constitutional rights rights, they do suggest concern regarding the death penalty's use on those who are morally less culpable than the average murderer or the morally depraved murderer the justices believe warrant a death sentence. Convicted murderers who are mentally retarded are less culpable for the commission of their crimes than your average killer and minors are not as mature as their older brothers, sisters, and neighbors.

This court does not oppose th death penalty and will likely affirm its use should its constitutional legitimacy be re-visisted but the justices are not blind to the apparent miscarriages in justice that might occur should it be applied to someone who is not as morally culpable as the average murderer whose life is spared.

Today's ruling is welcomed by this blogger. No defendant who is denied a fair chance to refute evidence put forward by the prosecution team should be put to death. Mr. Rompilla committed a brutal crime that warrants punishment and because it was so brutal few would feel sorry for him but even he deserves the right to challenge the prosecution and offer a more balanced view of himself to the jury considering his fate. Jurors reviewing his case might nevertheless have voted to setence him to death after weighing the mitigating factors against the aggravating factors but then again they had been aware of his problems the jurors mighthave spared him his life.

Mr. Rompilla's conviction was not overturned but then again that was not disputed by members of either party. The Court has ordered the state to either re-order a hearing of the death penalty prhase of this trial or sentence him to life in prison without the possibility of parole. Either way his right to a fair trial and freedom from a "cruel and unusual" punishment is now assured.

Friday, June 17, 2005

Dan Asmussen

The connection between the "snapping fingers" Michael Jackson jurors hated and Wendy's chili written about in The Bad Reporter this week. Enjoy your weekend. Be back Sunday evening or Monday morning.

Free Speech in Trouble

"There is no need to shelter us from the concepts of homosexuality, premarital sex and religions other than our own, but there is a resounding need to bring these so-called controversial themes out into the open so that people will no longer have reason to be afraid of ideas different from their own," - Armanda Ellis on the Loudon County School Board's attempt to silence controversial topics from high school plays.

So what is the lesson the board wants to teach our students? Oh wait, I know:

We believe all are entitled to free speech if we like it but if the topic or the stance is not one which we approve of then it is not free speech.

Parental Rights v. Children's Rights

This blogger is confused. Sometimes I hear conservative Christians speak about our right to life from the moment we start out as a one-celled zygote to the 90-year-old comatose man or living we may yet become and then I hear them speak of the very "parental rights" that deprive those children of that right.

Take for instance the story of Katie Wernecke. Katie is 13-years old and suffering from Hodgkin's Disease, a malignant cancer of the lymph nodes. Doctors say she needs to continue her radiation therapy but her father, who I guess presumes to know more about medical practice than the very doctors who examined her, said she did not and repeatedly clashed with them. Her mother took her and hid at a relative's place so she would not have to receive further chemotherapy.

If Katie did not get any treatment, the cancer could spread to other organs in the body and she would eventually die. The state's Child Protective Services took custody of Katie to ensure that she receives any medical treatment she will need to stay alive. The parents objected but the court sided with the state and ruled that she will remain in its custody until another hearing is conducted in late July.

So who is right? I don't know what treatment is best for Katie but the judge who heard the case sided with the state for good reason. Katie's life-sustaining care should not be denied because the doctors and parents cannot agree on what is best for her. In the meantime, she will get a full medical examination at M.D. Anderson Cancer Center.

But that leaves me still questionioning why the religious right does not support the child's rights and express outrage when parents, for religious or non-religious reasons, refuse life-sustaining medications or medical procedures. Presumably they believe parents' custodial rights are designed to protect the vulnerable children in their care. Their rights to care for the child are terminated once they fail to provide for that care. We in general would not object if the parents are charged for murder if they beat or starve them to death. Would it be any different if they denied their child life-sustaining medication or procedures?

No Withdrawal From Iraq Yet

Chris Matthews interviewed Senators Russell Feingold of Wisconsin and Senators Trent Lott of Mississippi concerning our exit strategy from Iraq. Some critics and disheartened supporters believe our president has no strategy for obtaining success and want him to outline his strategy for reversing our misfortunes so we could leave or set a tim table for our withdrawal.

To date our president has not offered a coherent message or policy. This blogger questions our hope in training a new Iraqi military force when the central government in Baghdad has no inclination to disarm and disband the two ethno-religious and potentially rival militias (Shi'ite and Kurd). These two groups challenge Baghdad's claim for supremacy, as does Iraq's unresolved status as a unifed state. Mr. Bush must level with the voting public and help us understand what we can and cannot achieve in Iraq in the near future. Our interest in a stable and unified Iraq has not changed, but our ability to impress our will on the Iraqi general public is limited.

Talks for a withdrawal are premature at this point. Should we leave now, Baghdad will fail to contain the insurrection. Muslim extremists and former Baathists will continue their jihad against the new Shi'ite coalition, Kurds will press for independence and push the Turkomen and Arab minorities out of Kirkuk and the rich oil fields surrounding it, the Shi'ites will brutally punish the Sunnis for years of oppression, and the Iranians will try to influence the political turn of events in Baghdad.

As bad as the situation is now, it could and will get worse if we leave. This blogger hopes the Iraqis charged with drafting a new constitution can in fact reach an agreement that people on all sides can accept and rally behind, and that the public would overwhelmingly vote for it. I believe success can only be declared once those who would govern Iraq or its successor states can reach an agreement without war. Ideally, we would be able to foster that kind of dialogue and stay until they reach that agreement. What we can do in reality has yet to be seen and explained by our president.

Thursday, June 16, 2005

Notice to My Readers

Since I will be going away for the weekend there will be no blogging updates tomorrow, Saturday, and perhaps even Sunday. Blogging may continue into the night but will stop by 1:00 am after the storm passes. My regular blogging should continue in full on Monday. I want to extend to all my readers a good weekend. May it be as enjoyable for you as it wil be for me.

One Last Thing on Terri Schiavo

The Washington Post web site includes a link to the autopsy report. I'm not going to read all 39 pages but anyone who does not trust the media's reporting can certainly do so.

More op-eds on China

I linked to an op-ed written by Former Secretary of State and National Security Advisor Dr. Henry Kissinger a few days ago. Here is a link to an op-ed written by Richard Holbrooke, former assistant secretary of state for East Asian and Pacific affairs, and another, in answer to Dr. Kissinger's op-ed, by Robert Kagan.

Here's the money quote from Robert Kagan:

"The majority of today's policymakers and thinkers hold much the same general view of global affairs as their forebears: namely, that commercial ties between China and the other powers, especially with Japan and the United States, and also with Taiwan, will act as a buffer against aggressive impulses and ultimately ease China's "integration" into the international system without war. Once again we see an Asian power modernizing and believe this should be a force for peace. And we add to this the conviction, also common throughout history, that if we do nothing to provoke China, then it will be peaceful, without realizing that it may be the existing international system that the Chinese find provocative."


So now the question is why the Iranians have lied? What did they have to gain by lying about the time they quit their research with plutonium and moved onto uranium enrichment (if they are not using both methods)?

Did the Iranians start work on both projects at about the same time and quit using plutonium after they found the uranium-enrichment process more promising? Why would they find it promising? Is the difference in usefulness based solely on their different potential use in war or are there differences in energy output in general?

Wednesday, June 15, 2005

Student with Migraine Problems Sues for Getting an "F"

I don't know about the merits of her argument but I never heard of a lawsuit in which you sue your professor for giving you an "F" after flunking a test while having a migraine headache. Wow. I'll have to read up on the case, found here (PDF file as usual).

The law student suffers from "intractable migraine syndrome" for which she takes medication. She had a severe migraine at the time she was taking the test and asked for an extended period of time to finish it. She was denied, complained to her teacher, and exhausted her appeals with no success. After publicly criticizing appeals procedures, she was offered a second chance to re-take the examination and was told she could take it in June. but was e-mailed in May 17, 2003 that she would have to take the test on May 21 (three days later) or forfeit her chance to re-take the test. She refused, and reminded them of their promise to let her take it in June and the rest is history. She sued, claiming they were trying to punish her for exercising her free speech rights and discriminating against her because she has a disability.

The Fourth Circuit Court of Appeals overturned the district court which dismissed the case. The summary is found on pages 3-5 and the opinion basically takes up the rest). I'll read it when I have more time.

In the meantime, enjoy.

Terri Schiavo Update

The controversy surrounding the removal of Terri Schiavo's feeding tubes has of course died down but the issue concerning the right to die will probably resurface in another case in the future. Since this commentator has written extensively on the subject as the battle between the Schinlder's and Terri Schiavo's husband headed into the final stages I thought it would only be right to close with the latest concerning the authopsy report.

The autopsy apparently confirms the account given by the husband in so far as there is no evidence of strangulation or any other beating before Terri Schiavo collapsed and in so far as it suggests she was in a persistent vegetative state and would no chance to recover.

But here are some interesting facts. Those advocating to keep her alive said Mrs. Terri Schiavo was conscious and would move her head and blink her eyes but shat one piece of information used to prove Terri Schiavo was aware of her surroundings was refuted isince she was blind as reported in the autopsy report.

Moreover, she did not suffer froma sleeping disorde as was previously believed, so the cause of the potassium deficiency and her life as a vegetable remains a mystery.

Ex-Senator Edwards

Former Vice presidential candidate and one-term senator John Edwards looks like he will make a second run for the White House. Mr. Edwards delivered a speech in Iowa today criticizing our president's "failure in leadership" and avoiding health care reform. The senator, as The Washington Post reported, will focus on the war on poverty and on what in his view is our moral duty to help those who live in poverty to get out. As a vice presidential candidate, Mr. Edwards spoke or two Americas, one for the rich and one for the poor.

The former North Carolina senator was appointed by his senate colleague John Kerry to be his vice presidential running mate last time. Mr. Edwards was outclassed in the vice presidential debate by a seasoned veteran who had more experience in national security and foreign affairs. He obviously did not help Kerry win the presidency with his two-America theme but the voters were looking at the presidential candidates more than the vice presidential candidates. We'll see if Mr. Edwards could define him and his campaign better this time.

Tuesday, June 14, 2005

Democratic White House Thoughts

Media pundits consider Senator Hillary Rodham Clinton of New York the presumed Democratic frontrunner should she win her re-election and enter the Democratic race for the White House. The former First Lady may prove to be a tough, resilient campaigner but she would be a polarizing candidate known for offending those whose sensibiltiies are more in tune with those in the Bible Belt and middle America.

Unfairly in some cases and fairly in others, Hillary Clinton will inherit problems associated with her husband's White House behavior, from campaign finance irregularities, the pardon of Mark Rich, and the president's decision to lie under oath concerning his sexual indiscretions. Democratic operatives seeking to repair damage inflicted upon them by his first term excesses, and Dean's latest verbal gaffes would do well to look at other potential Democratic candidates befores settling on a one-term senator who may be using her term as a foothold to win herself back into the White House.

Hillary Clinton no doubt has moved to the center in the senate. She won for herself a seat on the Armed Services Committee, supported our war in Afghanistan and voted to authorize the use of force in Iraq. Not too long ago, Hillary Clinton said abortions should be rare and supported those who say men and women should be encouraged to abstain from premarital sex while re-affirming her pro-abortion choice and sex education views.

But the very centrists who may provide the necessary votes to win an election may not trust her and opt for others who over the long haul have proven their centrist credentials. Senator Evan Bah of Indiana, for one has won re-election in a conservative state and like Hillary Clinton, voted with the president on Afghanistan and Iraq. He has strong credentials with the small and big business communities while maintaining a fairly strong pro-envinronmental record and he has voted with the party on most social issues but has kept himself out of the spotlight on these social issues and has voted for a ban on partial birth abortion.

Republicans will remind centrist voters of Hillary Clinton's botched health care plan that failed to garner the necessary votes in the then Democratic controlled senate and her vote against a partial brith abortion ban notwithstanding her declared support for one that provides for exceptions should the life or "health" of the mother be threatened.

The junior senator from New York will have to run for re-election in a fairly liberal and Democratic state two years before she can really position herself to the center, making the recent speculation concerning her White House ambitions seem premature. Senator Bayh will merely need to reaffirm his centrist credentials and will not have to defend his seat until 2010, two years after the presidential elections.

Virginia Governor Mark Warner is also looking at a White House run and has started to run and like Senator Bayh, he won his election in a state that leans Republican in presidential elections. He has largely avoided votes on hot-button social issues though he cannot win run for a second term (one-term limit in Virginia). Mr. Warner will have the executive experience Evan Bayh and Hillary Clinton lack but his foreign policy credentials have yet to be established.

Governor Bill Richardson of New Mexico may enter the race as well but he lacks the charisma and Hillary Clinton's celebrity status. Pennsylvania's Governor Ed Rendell has a 2006 re-election campaign to win but he might consider a run for the office if he wins and Hillary Clinton declines to run for the White House.

And then there's Senator Joseph Biden of Delaware. The PoliticalHeretic believes he will not run for the White House unless he is willing to give up his senate seat which will be up for a vote at the same time but should he be tired of the senate and ambitious he would be a worthy candidate.

This blogger considers him a leading Democratic spokesperson on foreign policy given his position as Ranking Minority Leader on the Foreign Relations Senate Committee, his consistent and forceful support of military and peace-keeping operations pushed by President George W. Bush and his predecessor, and his willingness to speak out on these matters on the talk shows. He voted to authorize military force in Bosnia, the breakaway Serbian province of Kosovo, Afghanistan, and Iraq and unlike Senator and former presidential candidate John Kerry, he has not wavered from his support. The Democratic senator from Delaware has criticized our president on the implementation and on the president's policy on war combatants but he re-affirmed his support for the war and opposes any efforts to withdraw our troops from Iraq.

Senator Biden sides with the liberals within his party on the social issues more often than not. He supports abortion rights, most gay rights legislation, environmental regulations, affirmative action like the others mentioned above which will serve him well in the primary but he did vote for the ban on partial birth abortion but of those who are thinking of a White House run he alone has the gravitas neded to successfully challenge the Republicans' dominance on national security.

Monday, June 13, 2005

Fred Hiatt Defending His Paper

Here's Fred Hiatt's response to any assertion that The Post is devoting too much human rights criticism to the United States military when it could editorialize against ethnic genocide, terrorism, and other barbaric acts perpetrated by dictators, warlords, and some of the revolutionaries that oppose them.

"The United States and this administration in particular continually assert the moral right to behave differently than other nations. We will not be bound by the International Criminal Court. We insist that other nations give up their nuclear weapons while we keep our own. We wage war without U.N. Security Council approval. We publish annual report cards on everyone else's human rights records.
The premise of this highhandedness is that the United States is, on balance, a force for good in the world -- a superpower that uses its might not to subjugate others but to allow them to live freely. This is a premise that The Post's editorial page on the whole accepts -- to the dismay of many readers.
But any nation asserting such a high calling will be judged by an equally high standard. Are we better than the beheaders, the mass killers, the U.N. peacekeepers raping young girls in the Congo? That's not close to the right question."

Kissinger on China

Former Secretary of State and National Security Advisor Dr. Henry Kissinger offers sound advice in today's Washington Post concerning China's eventual rise to superpower status (if it is not already there), its potential, and how we should respond to the challenges and opportunities Chinaj's rise poses to American interests in the Pacific and Asia.

I won't comment on his op-ed at this point because this blogger believes his visitors should read it for themselves first.

Saturday, June 11, 2005

Classroom Education: Make Love, not War or Is It The Other Way Around?

Here are some weird and quite disturbing stories about teacher-student relationships in central New Jersey. One teacher encourages his students to fight in order to let off some steam, culminating in an after-school stabbing, and another kisses hers.

Dan Asmussesn

The Bad Reporter only brings you Terrorist ice cream this week.

The Sunday Preview

Better late than never (unless the preview was given after the shows aired of course). Up front and center, foreign policy, with most of the attention on the war on terrorism in the Middle East and Iraq in particular.

1. "Meet The Press:" Senator Joseph Biden (D) and Representative Curt Weldon (R) talk about Iraq, Iran, and terrorism. Roundtable discussion includes Judy Woodruff, Gwen Ifill, David Broder, and John Harwood.

2. "Fox News Sunday:" Representative Duncan Hunter (R) and Tom Malinowski of Human Rights Watch on Guantanamo Bay and whether the detention camp there is comparable to a gulag. Historian David McCullough speaks about George Washington's soldiers during the Revolutionary War. Britt Hume, Mara Liasson, Juan Williams and Bill Kristol in the roundtable discussion.

3. "Late Edition:" What remains to be done with the war on terror still going on. Interview with two members of the 9-11 commission, Lee Hamilton and John Lehman, as well as interviews with Senators Chuck Hagel (R), Dianne Feinstein (D), Henry Kissinger, William Cohen, and Syrian ambassador to the U.S. Dr. Imad Moustapha.

4. "This Week:" Financial adviser Suze Orman, the ranking Democrat on the House Finance Committee Rep. Barney Frank and Anthony Hsieh, CEO of on whether there is a housing "bubble." Representative Walter Jones (R-NC) speaks about the mounting casualties in Iraq and whether he is having second thoughts on the war, Actor Brad Pitt on his trip to Africa.

5. "60 Minutes:" Steve Croft reports on "The Canadian Lottery" scam. Bob Simon profiles an African girl whose life was changed when her family received a donated goat. Ed Bradley interviews Bob Dylan.

6. "Face The Nation:" Bob Schieffer interviews Senators Patrick Leahy (D) and Lindsey Graham (R) about the Patriot Act, Guantanamo Bay, and Iraq.

7. "The Chris Matthews Show:" Howard Dean's insults and whether they help his party, Chris' thoughts about Australian heroes in Hollywood (I guess Russell Crowe), and a comparison between Senator John Kerry and President Bush on intelligence. Guests are Julia Reed, Joe Klein, Andrea Mitchell, and Andrew Sullivan.

Chrystal Meth

Not that I want to be a drug czar or anything (I tend to be one says "to each his own") but The New York Times reports on one reason it would be wise for anyone who is thinking of trying chrystal meth to think again.

The Koreas and The United States

Mr. Roh reached, through his interpreter, for the same tone. "Every time we meet together," Mr. Roh said, "questions abound regarding the possible existence of differences between Korea and the United States surrounding the North Korean nuclear issue."

"But every time I meet you," Mr. Roh went on, "I come to the realization that there indeed is no difference between our two sides with regard to the basic principles. In fact, we are in full and perfect agreement on the basic principles. And whatever problem arises in the course of our negotiations and talks, we will be able to work them out under close consultation."

- from The New York Times news report on the meeting.

The South Koreans and the Americans may agree on some "basic principles" regarding nuclear proliferation and the threat of a nuclear Korean peninsula but Pyongyang will use future talks to drive a wedge between the two allies on negotiating tactics. South Korean President Roh Moo Hyun favors efforts to entice North Koreans back to the negotiating table in part, because he fears a mass exodus of North Koreans down south should the Pyongyang. Mr. Roh does not yet support our government's efforts to bring North Korea's record of noncompliance record to the United Nations Security Council for a vote on sanctions. The Chinese and Russians oppose our administration's policy as well.

The Bush administration knows it can't do much for now. One group would like to push for a vote before the United Nations but we do not have the votes in the Security Council to win and an emboldened North Korea would be even more likely to raise its demands after any American proposal is voted down by one of the permanent members of the United Nations Security Council. The administration cannot afford to hold the vote now, but it should develop a policy to win the votes it will need to enforce any economic sanctions in the future.

Mr. Roh's alternative solution is no better. The South Korean president said we should offer the Pyongyang government economic sanctions and/or a commitment to respect Noth Korea's sovereignty and administration to lure it back to the negotiations. Commitments made now will not easily taken back in the future, so the communist-led north would get more benefits in order to sit down at the table and get even more. Negotiations at this point can only benefit the North Korean government. It would join in the six-member talks knowing that we do not have the votes to enforce their compliance to any agreement they sign on to, and given this country's history its government would have no problem signing onto an agreement in which it gets trade in return for an unenforceable promise.

The PoliticalHeretic welcomes further negotiations at this point with further lobbying to our allies behind the scenes but opposes any commitments made on our behalf until the principal enforcers of any agreement publicly back and agree to comply with an embargo should the North Koreans fail to deliver on their promise to dismantle its weapons program. The North may have nuclear weapons but at this point could do litle with them. Pyongyang's administration will not launch nuclear missiles against South Korea, Japan or any other future trading partner knowing it will expose itself to an immediate response from the United States.
It knows any sale from its weapons would, if exposed to its neighbors, may convince its neighbors to get behind the very embargo we would propose and it fears.

The South Koreans know this and that is why they are willing to bargain with the administration to the North. Mr. Rhoo thinks his neighbor to the north will use its weapons to extract concessions from his country, its other neighbors, and the United States. He probably fears a nuclear meltdown like Chernobyl more than anything Pyongyang would or could do with the weapon.

The PoliticalHeretic suggests a wait-and-see approach in which we re-affirm our commitent to the talks but refuse to concede anything that cannot be backed up with the treat of force or economic reprisals. The North Koreans cannot really use the weapons yet so its refusal to compply with its old promises will hurt the South more than us in the short term. We can afford to wait longer than the South Koreans who are, after all, its neighbors. Should our allies refuse to back an enforcement regime we should refuse to sign onto any agreement with the North. Any concessions from our part should not be made in vain.