The Political Spectrum

From From CNN

Terri Schiavo, the 41-year-old brain-damaged woman who became the centerpiece of a national right-to-die battle, died Thursday morning, nearly two weeks after doctors removed the feeding tube that had sustained her for more than a decade.

May God bless her. My thoughts and prayers are with her and her family.

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If Dave Brooks spent the rest of his time on Earth defending big government conservatism, I do not believe I would be as irate at him as I am for this travesty of a column. It seems Brooks is contemplating switching his baseball allegiance from the Mets to the Nationals.

As a relatively new DC resident who probably will spend of my life here, I am pretty excited about baseball coming back to the District. It is long overdue, and will be a welcome summer amusement. Moreover, the Nats play in the same division as the Mets, and therefore will play 9 or 10 games against them each year at RFK.

I actually will probably roots for the Nats - that is, when they're not playing the Mets. I usually don't root for the teams that play in the locations in which I live. Believe me, I took immense joy while at Emory in watching the Braves, Falcons, and Hawks lose. One of my fondest sports memories was watching the Knicks beat the Hawks in the 1999 playoffs at the Georgia Dome. There were more Knicks fans in attendance, and we pretty much had a fullout party after the game. Actually it was kind of sad. There is no way in hell an opposing teams' fans would be able to carry on like that in the Garden. But that's Atlanta sports for you.

Similarly, I detest the Redskins and take a great deal of amusement watching the Skins fans get all hopeful about the upcoming season, only to have their hopes dashed again and again and again. Though I must say that at least Redskins fans, unlike Atlanta sports fans in general, support their team through thick and thin, and for that they have earned my grudging respect.

But with the Nationals, I feel a little differently. I suppose it's because I already was living here when they arrived, and thus I feel like they are a little bit more my team.

But I can never truly be a Nationals fans. Being a Met fan is part of my identity. I have given enormous amounts of time and energy for this team. I have cried tears of sadness after crushing playoff defeats in 1999 and 2000, and have also been through the enormous joy of a world championship. I still get chills every time I walk into Shea Stadium, even if it is a dump. And, as always, I get to anticipate with great optimism a season that will no doubt end in failure.

This is the team that has given us Bobby Bonilla calling the press box from the dugout after being charged with an error. There was Vince Coleman, lobbing firecrackers at fans. Bobby V in disguise in the dugout after being tossed. Steve "Skill Sets" Phillips. Scott Kazmir for Victor Zambrano. Kenny Rogers walking in the winning run of the 1999 NLCS. Bernie Williams catching the final out in center in game five, and Yankee fans celebrating in our fucking stadium.

But then there's Mookie grounding one through Buckner. Orosco's glove. Mike Piazza blasting one into the night sky in the first home game after 9/11. Ventura's grand single. The Murph's happy recaps. Dwight Gooden's first two major league seasons. Strawberry's first eight. The Kid homering in his first game on opening day against the Cardinals. Dykstra and Backman getting their uniforms dirty every single game. And now Pedro and his midget.

For a very brief period I may have been slightly more devoted to the Rangers, but that ended the day after they won the Cup. Since then there has only been one team in all of sports that can cause as much pain, anguish and suffering within me as the New York Mets. It will be a cold day in hell before another team grabs my heart as they do.

So as another season approaches, it's time to break out the lyrics to this great song.

MEET THE METS,
MEET THE METS,
Step right up and greet the Mets!
Bring your kiddies,
bring your wife;
Guaranteed to have the time of your life
because the Mets are really sockin’ the ball; knocking those home runs over the wall!
East side,
West side,
everybody’d coming down
to meet the M-E-T-S Mets of New York town!


Oh, the butcher and the baker and the people on the streets,
where did they go? To MEET THE METS!
Oh, they’re hollerin’ and cheerin’ and they’re jumpin’ in their seats,
where did they go? To MEET THE METS!
All the fans are tru to the orange and blue,
so hurry up and come on down -
‘cause we’ve got ourselves a ball club,
The Mets of New York town!
Give ‘em a yell!
Give ‘em a hand!
And let ‘em know your rootin’ in the stand!

LETS GO METS!!!

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This is the latest from the Coalition for Darfur.

Please note, by the way, that this site contains more than just these weekly updates. There is so much information about the tragic evnts unfolding in the region, and I encourage all of you, if you have not been doing so, to read this blog regularly.

In her 2001 article "Bystanders to Genocide," Pulitzer Prize winning author Samantha Power recounts how President Clinton was shocked and outraged by an article written by Philip Gourevitch recounting the horrors of the 1994 genocide in Rwanda, prompting him to send the article to his national security advisor Sandy Berger with a note scrawled in the margin reading "Is
what he's saying true? How did this happen?"

After taking office, President Bush reportedly read Power's article on the Clinton administration's failure to intervene during the genocide. He too scrawled a message in the margin - "NOT ON MY WATCH."

Yet we are now faced with another African genocide, this time in Darfur, and the United States and the rest of the world are responding exactly as they did during Rwanda - with paralyzed inaction.

Though there are many key differences between what is taking place in Darfur and what occurred in Rwanda a decade ago, there are also many similarities.

In 1993, the world watched "Schindler's List" and wondered how such horrors could unfold and why they were not stopped. In 2004, it watched "Hotel Rwanda" and asked the same questions. In each case, those questions went unanswered.

Just as in Rwanda, the international military force on the ground in Darfur is far too small, poorly equipped and operating under an extremely limited mandate that does not allow them to protect civilians at risk.

Just as in Rwanda, the genocide is taking place against a backdrop of "civil war," leading the international community to focus more on establishing a cease-fire than protecting those being killed.

Just as in Rwanda, the death toll is nearly impossible to determine.

Just as in Rwanda, the United Nations is more or less paralyzed as individual nations seek to protect their own national interests rather than helpless men, women and children.

Just as in Rwanda, media coverage is almost nonexistent, Congress is all but silent, and the human rights community is having difficulty get the nation to pay attention to a genocide in progress.

Just as in Rwanda, a genocide is unfolding - but this time it is happening on our watch.

We ask you to join the Coalition for Darfur as we attempt to raise awareness of the genocide in Darfur and raise money for the live saving work Save the Children is doing there.

Update: There is a video that more brutally captures the essence of this post. Go to this site to view it. It contains very graphic images, so do not view it if you are in any way squeamish.

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There is nothing more annoying than hearing the words, "An ABC poll indicates . . ." As soon as I hear about some new fangled poll my eyes roll back into my head as I am evidently supposed to take this latest survey as Gospel truth of where Americans stand on some particular issue. Really, when it comes to opinion polls of any sort, my general inclination is to ask, "Who really gives a fuck?"

Opinion polls are perhaps useful to dull idiots who cannot form an opinion without knowing where their neighbors supposedly stand. They are also of use to cowardly politicians who have not a strand of principle in their body and whose fingers are constantly moist from licking.

The problems with opinion polls are manifold. Oftentimes they are loaded or ask misleading questions. Further, they are a sampling of the opinions of people who generally have no idea about the issue under discussion. Most people have deeply held beliefs, but do they really know all that much about, say, the Schiavo case or the International Criminal Court? Probably not, so who really cares about their underformed opinion of the subject?

Most importantly, we do not live in a plebiscitary democracy. Well, at least not yet. Luckily for us the Framers did not implement Rousseau's social contract, and as such we live in a constitutional, representative republic which does not cater to the mere whims of popular opinion. Certainly the people have a voice through both voting and other forms of communication with their elected representatives, but there are various mechanisms the Framers set in place to restrict democratic exuberance.

That leads me to another problem, and this, shockingly to most readers of this site, is one that I have with a part of the right. As many of you know I am no fan of the current judiciary. It is an intolerable mess of quasi-despots who have no problems enforcing their political opinions through judicial fiat. That said, some conservatives are under the impression that the way to circumvent this judicial tyranny is through another form of tyranny, though of the democratic kind.

This is unfortunate. Conservatives are suspicious of human nature, and as such inclined not to blindly follow the crowd. Yet a strand of the conservative movement seeks to place leave all important decisions to plebiscites and other mass movements. Michael Federici, among others, has eloquently discussed the rise of right-wing populism and its deleterious consequences.

The solution to judicial tyranny is not democratic populism. The masses can be just as wrong as the men and women in black. For example, many bemoan the constant overturning of referenda results by the Courts. Well, a plebiscitary decision is not inherently constitutional. A decision arrived at by the body public merits no less scrutiny than one decided by the legislature. As such, an unconstitutional action is just that, unconstitutional, as therefore void. Now, I do not know the specifics of each referenda overturned by the judiciary, and I am quite sure that there have been constitutional actions taken that were unduly overturned. And this is what we must deal with.

John Marshall himself did not say that the Courts were the final arbiter. Much like Coke, he has been misquoted in this regard. What he did say is that any legislative act that contravenes the Constitution is of no force, and the Court has the duty to declare such a law void because it is unconstitutional and of no force. But he did not declare that the Courts and only the Courts could make such determinations.

So who has the final authority? This is the conundrum that I must confess I cannot satisfactorily answer. In a technical sense the people are the final arbiters because they are the sovereign power of this Nation. But what does that really mean? In no place in the Constitution do the people act as a collective, thus the only popular recourse is amendment, and even this is not an action of the people acting in the collective sense, but instead through their respective state legislative bodies.

It is frustrating to come to such an inconclusive close. What I do assert most forcefully is that the answer to resolving one sort of tyranny is not another sort. One thing we can do is of course get better judges on the bench. Now if only the Senate would Confirm Them already, we'd be on the right track.

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Eureka- the essential distinction between dems and reps has come to me. First, values are defined as beneficent values here- ethically and morally good values- and yes, they do exist (Dems are not necessarily relativists). Second, the formula-

Democrats have values, believe in those values, and stand up for those values. They also rarely, but understand it to be necessary on occasion, use those values for political purposes- i.e., to gain political currency to effectuate those values at large. Republicans talk about values and pretend to believe in values but actually only use the rhetoric of the values to accomplish the ends of their own agenda (i.e., what their lobbyists and their financial bases tell them to do). Dems, unfortunately, are having trouble communicating to the general public how much they actually represent their values. I do concede that Reps are more successful at this point in time. Now that we have the overall structure, lets delve into some specifics.

1.) Schiavo. Mr. DeLay- can you make it less obvious that you are trying to woo the public into not indicting you (by a federal grand jury or in the court of public opinion)? Please just go gracefully to prison. Being a Catholic, and a Democrat- yes they can be synonymous- I understand that life IS "precious." That is why I stand up for and represent civil rights and civil liberties. To use a Rep argument- the government has no place in my business- the government has no right in my civil rights because the government wouldn't exist without my consent in the first place. Terry Sciavo's life is precious- and her afterlife is too. Lets face it. This poor woman is no longer with us, regardless of her leaving her vessel behind. Her soul has passed to the afterlife. She is no longer cognitively available here. So this raises the question- why are we keeping her vessel sustained at its present state? Reps respond by hinting at the values underlying her life, but the real message is- "Hey, I'm in trouble with my constituency. Please reelect me!!!" Please stop abusing this very important issue for political purposes. If you are going to talk the talk of values, please also walk the walk of values.

2.) The Second Term. The issue is not dead. In fact, it is very alive. Dems may have slept to recover from the shell shock of it all- we are down, but we are certainly not out. In fact, I really should address this as the mandate that Reps believe has befallen them at their doorsteps. News Flash- there is no mandate. You are not tapping into the Manifest Destiny of the new millennium. What you ARE doing is setting your party up for disarray. Sociological studies have shown that when repressed groups band together for one common purpose (e.g., civil rights actvitist groups), they tend to overcome their majoritarian counterparts (see, e.g., The 14th Amendment; The Civil Rights Act of 1964; The Americans with Disabilities Act). However, once that group achieves the goal it has sought tirelessly, that spirit tends to be directed at its own members. For example, Dems had control of Congress for nearly 40 years. During that time, factions began to develop among Dems, ultimately leading towards Dems becoming the minor party in the Congress. The same phenomenon may occur with labor groups or other organizations with a common goal. Your time is coming soon. You can already see the signs. It makes me happy. Enjoy your brief stay, because your morally devoid policies, your politically charged laws, and your interest-group oriented belief structure will sometime again fall. Enjoy your time where you hoard the world's resources, in your anti-Robin Hood belief structure. Remember, it is on your soul. Oh, and by the way- we will learn from your mistakes and make it another 40 years.

3.) Another distinction between Reps and Dems. Dems sign on to the social contract theory espoused by Locke and Rousseau- inherent value comes from the individual, not from the government- and the source of authority to act comes from the individual. It really is a matter of agency law. When the government acts, it only has the AUTHORITY to act when the majority has granted that authority (standing in the shoes of the individual). Of course, in any particular moment, the ethereal "government" (who can only act through its agents) cannot ask for permission, nor can the real majority give its consent. But let us be clear that the government (both state and federal) has no place acting outside the scope of its authority. Therefore- your choice of marriage, your control of your body, your control of your life- all originate with the individual. The government has no say, unless a clear majority can speak. Of course, there are clearly times when the government must speak and the majority has given its consent- crimes (e.g., murder, robbery, etc.); violations of public policy (e.g., excluding minorities from jobs); and any other balancing of interests. But even then, the existence of a majority ought to be, to steal the phrase, clear and convincing. (I.e., a somewhat questionable win in the State of Florida where your brother holds all the cards is not clear nor is it convincing). Reps seem to not understand the social contract theory. Reps seem to use government authority where it is convenient to achieve their own agenda (e.g., to use the Congress to enhance the coverage of the Schiavo ordeal for political appeal; to elevate the Eleventh Amendment to a position of authority so far beyond its initially intended scope that it deprives private individuals of their Congressionally authorized rights), rather than determining whether the authority exists in the first place. It happens in the Congress. It happens in the courts. And it clearly happens in the Executive Branch. Nor are states immune from attack here.

I digress. The bottom line is this. The real fight is one of good against evil. Dems v. Reps. Even Superman had an arch-nemesis and a substance that made him weak. Fortunately for humanity, he always prevailed. Hubris, my friends, will be your kryptonite. So mandate on...

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The latest from the Coalition for Darfur.

Last week, the United Nations was forced to withdraw its staff from parts of western Sudan after the Janjaweed militia declared that it would begin targeting foreigners and U.N. humanitarian convoys.

Yesterday, a 26 year-old USAID worker was shot in the face when the
clearly-marked humanitarian convoy she was traveling in was ambushed in broad daylight.

It is still unknown just who carried out this ambush, but Sudan expert
Eric Reeves reported yesterday that he had "received from multiple, highly authoritative sources intelligence indicating that Khartoum has ambitious plans for accelerating the obstruction of humanitarian access by means of orchestrated violence and insecurity, including the use of targeted violence against humanitarian aid workers."

If such a plan is truly in the works, it will have dire consequences for the people of Darfur. Last year, Jan Egeland, the UN Undersecretary General for Humanitarian Affairs, warned that as many as 100,000 people could die in Darfur every month if those providing humanitarian assistance were forced to withdraw due to insecurity.

Save the Children has already lost 4 of its aid workers in the last year, yet they continue to provide medical care, food, water, shelter, and protection to more than 200,000 children and families in Darfur each month.

The members of the Coalition for Darfur are working together to raise money for Save the Children and if each coalition partner can raise a mere $10 dollars a week, together we can generate $2,000 a month to support Save the Children's life saving work.

We hope that you might consider making a small donation.

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I've been hesitant to weigh in on the Schiavo business, because I think I may be on the wrong side. All the people I am supposed to respect are on the other side, but here is my best effort to make sense of what is going on.

First, the Catholic position cannot be that the resolution of this situation depends on what the unfortunate woman would have wanted. I have seen no one make any argument -- let alone a convincing one -- that Catholic principles dictate who is the best representative of the woman's wishes in this situation: husband or parents. (After all, we don't believe in divorce.)

If it has any merit, the Catholic position must be that it doesn't matter what the woman would have wanted. The position would be that no one may permissibly choose to ignore this kind of medical care. The position would be: (1) in these circumstances refusing water and nutrition would amount to suicide; (2) suicide is a bad thing that should be prevented; (3) therefore continue water and nutrients.

If that is the position, is it really the Catholic one? Bishop Sgrecia says "yes," but I have my doubts. I do not at all see that the care that was being given the woman is of the ordinary sort that cannot be refused. Catholic positions on suicide are far more refined than Bishop Sgrecia admits (at least, than the article relates he admits). There are reams of print on the various desires that are permissible and impermissible for a Catholic. A Catholic can desire an end to pain; he can't desire death as such; he might desire a painkiller that increases the chances of death; he may not choose to step in front of a bus to end his pain; ad infinitum.

Again, I am hesitant on this point. But much as is the case with (1) the death penalty and (2) the President's position on stem cells, I cannot help but worry that the Catholic opposition is not founded on a rock-solid foundation in this case. Combine this with a worry that the Church spokesmen who have weighed in have had inadequate education (the last adequate Catholic training having taken place in the 1930s in the Toulouse province of the Dominican order), I am very, very worried. Worried to the point of not having time to worry about the poor woman.

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Last Friday I was reading the DC Examiner and came across the story of William Karanja, a man sentenced to 66 years in prison after being convicted of raping two teenagers and attempting to infect them with HIV. His ever-so compassionate attorney had this to say:

"Mr. Karanja is a hardworking 34-year-old who has been convicted of some very serious errors . . ."

Serious errors? Raping two teenagers and attempting to infect them with HIV is a serious error? Excuse me, but NO. Accidentally drafting David Wells during a live fantasy baseball draft because you aren't really paying attention is a serious error. Raping a couple of teenagers is more a horribily monstorus act that indicates you are a worthless piece of scum who, if fortune smiles, will have his balls yanked off while not looking and then stuffed down his throat.

I realize that Madame Attorney has to stick up for her client, but can we knock off the repugnant use of careful language. I'm sure the parents of the teenagers also regret the unforunate errors that will now haunt their children for the rest of their lives. I'm very confident that a few years from now when they wake up drenched in sweat after having yet another horrible dream about this incident they, too, will regret these very serious errors.

It astounds the mind that someone can be so callous in their word choice, but then again this is a culture that hails a woman's right to choose rather than a woman's right to vacuum her as yet unborn child's brains out to make up for the fact that she couldn't be bothered to take responsibility for her actions. And such is a culture that sits idly by in mild disinterest as a woman is allowed to starve to death.

Of course I was getting to that. You'd think I would forget? But what can I add that has not been said by people more talented than yours truly on this horrific case?

I guess I'm supposed to get all wrapped up in moral outrage in the so-called hypocrisy of the Republican Congress' attempts to stop this madness. To tell the truth I'm fifty-fifty on this matter legislatively. But while we debate arcane legal matters a woman is slowly dying due to starvation because a bunch of judges (one, actually, if you study the details of the case) has decided that the husband's sudden realization after several years that Terry had said something in passing at a funeral years back constitutes definitive legal proof that this woman truly did not want to remain alive. Yeah. Right.

Sometimes it's tough to rally the moral outrage at a time like this. Frankly, I am simply beaten and dejected by it all. What about erring on the side of life? What about the medical profession's responsibility to extend life? Have we so completely lost sight of our moral bearings that we don't recognize that this is not a matter of cutting off a life support system, but instead we are willfully murdering a woman (and this is murder, pure and simple) because one man cannot bear burden no one is asking him to carry. Go off with your finace and your two children, and let Terry live.

To be fair, I do not wish to denigrate Mr. Schiavo. I cannot claim to know the workings of his mind, nor can I state with complete certainty that he is acting with malicious motives in mind. But it is difficult to fathom that this man is truly keeping Terry's well-being at the forefront of his mind. No one can prove that she would want to die, and as such it the ultimate in inhumanity to starve this poor woman to death because she has become some sort of burden, or because we deem her unfit for life.

And I suppose that's the greatest moral tragedy of all. All men are created equal, but God have mercy on the poor creature who does not have the same mental capacities as the rest of humanity. Certain individuals have taken it upon themselves to decree what is a lifetsyle worthy of living. A woman in a persistent vegetative state? Eh, she can't function, so off with her. An unborn child in the womb of a single mother? Why, he or she might not get all the toys it wants. Better to kill it in the womb before he or she leads a life of utter misery and depredation and lack of a DVD player.

The wretched hypocrisy of liberals who castigate conservatives as wishing to "force our morality" on others is not lost in this situation. They see nothing wrong with imposing their view of what is life worthy of living upon the world. Poor Terry Schiavo. If only she were an endangered species of animal living in California then maybe she would have some chance at survival.

As it is, the party of death will work to make sure the feeding tubes stay out. What kind of life is it, after all, when you can't enjoy the latest Maureen Dowd column? Now we can get back to the serious work of determining the precise physical and mental characteristics that will allow a human being not to be killed.

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Power Line points out these words of wisdom spoken by Senator Boxer.

Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote. So we're saying we think you ought to get nine votes over the 51 required. That isn't too much to ask for such a super important position. There ought to be a super vote. Don't you think so? It's the only check and balance on these people. They're in for life. They don't stand for election like we do, which is scary.

And to think this woman stands in the upper house of the federal legislature, the supposed quasi-aristocracy.

First of all, I stand in awe the sheer eloquence of this statement. After all, this "super important" position surely does require a "super" vote, as this "super" dumb Senator correctly points out. After all, it's right there in the Constitution.

Wait a second. Holy crap, there's no such requirement in the Constitution? You mean judicial confirmation votes don't require anything more than a bare majority? But surely the esteemed Senator from California knows what she's talking about.

And what the hell does their pay package and retirement benefits have do with anything? What planet is this woman from?

"They don't stand for election like we do, which is scary".
No, the only scary thing is that a majority of the voters in her home state went to the polls and cast their ballot for this dimbulb. The only possible explanation for continuing to allow her to speak is that she makes Hillary look sane by comparison.

But I have to give Boxer her due. At least she has the courage to openly state the Democratic party's plan to completely obliterate the plain meaning of the US Constitution. Congratulations to her for being the only person in her party willing to speak the truth.

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Half of me knows I shouldn’t, but I just can’t help commenting on the latest political attempts by both the Florida Legislature and the United States Congress to intervene in the Terri Schiavo case.

As you probably already are aware, I’ve commented on this before (scroll down to Right to Die?) and at that time concluded that while Mr. Schiavo may in fact be wrong, callous, and greedy in his rationale, nevertheless Florida law, and for that matter likely many other state laws would, and properly do afford him, not her parents, the legal right to make decisions with respect to his wife’s medical treatment.

This issue has been litigated numerous times in both the state and federal courts. Every state case that has heard the issues and reviewed the evidence has concluded that Mr. Schiavo is legally entitled under Florida law to make the decisions with respect to his wife’s medical care. In addition, every federal court that has been asked to review the case has denied review and/or relief based on lack of jurisdiction over the claims presented or deference to the sovereignty of the Florida courts. In other words, the court system has functioned exactly as it is supposed to, in accordance with both statutory and constitutional authority as well as applicable precedent. The problem is that the law allows a result that many people, rightly so, find to be repugnant. Therefore, politics and politicians have interfered with the hopes of rigging the system to achieve its desired results.

I’m going to go a bit easier on the Florida Legislature, in large part because it is their state laws that are the issue, and they of course have total authority to amend and/or alter them as they see fit. Though they have already tried to intervene once and were rightly rebuked, and rightly so, by the Florida Supreme Court for violating seperation of powers principles. Thus, my real beef right now is with Congress. The day before yesterday, quickly and quietly, the House of Representatives passed H.R. 1332, the Protection of Incapacitated Persons Act of 2005, which provides "incapacitated persons" with the right to have their cases heard de novo before federal courts. In fact, the law specifically provides that "no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply." In other words, the fact that these issues have already been litigated and rejected by the Florida State courts will have no bearing on future review by a federal court. Put yet another way, "incapacitated persons" would enjoy a right of review that no other civil or criminal litigant currently enjoys in our legal system, namely, two bites at the apple, one in state court and one de novo in federal court.

While there are numerous problem with this approach, it seems to me that two are the most striking. First, there is the "federalism" concerns, as this bill represents a total disregard for the dual court system that generally the GOP is a strong supporter of upholding. It now appears that even the Grand Old Party is not immune from a bit of forum shopping when it suits their desired policy goals. Recall that it was just last year that the House adopted H.R. 3313 which, if enacted, would have stripped federal courts of jurisdiction with respect to full faith and credit issues involving marriage laws. Of course lest us forget the wonderful habeas corpus statute enacted several years ago that severely curtails, but in fairness does not totally prevent, the ability of the federal courts to review state criminal proceedings for procedural or heaven forbid constitutional violations. Why is it that the federal courts are not good arbiters of marriage or criminal laws, but are perfectly acceptable when it comes to de novo review of cases involving "incapacitated persons?"

My final point and critizim is a bit more philosophical than political, but nonetheless needs to be raised. A couple weeks ago, when the Supreme Court decided the Roper case, much (though not all) of the fervor among right-of-center commentators was "well while the court reached a conclusion that I agree with because I’m opposed to death penalty, but as much as I wish it were different, the Constitution clearly permits the execution of minors and to hold otherwise is judicial activism run amok." Or, phrased another way, the court engaged in conclusion based reasoning that is antithetical to the "interpretation of law" they decided what the outcome was going to be and worked backwards to find a justification. It seems to me that something similar is going on here. People think that they know what the "correct" result is with respect to Mrs. Schiavo, so they are trying everything in their power to work back from that result to find a legal basis to see it prevail. While I understand, respect, and applaud the people who are standing up to oppose the removal of the feeding tube on moral and religious grounds, the fact remains that although they may be right that doesn’t seem to justify the tortured reasoning and blatant disregard for the laws and our legal system that permits the removal to occur. Maybe the law will change, maybe it should, but for now as my previous post indicates, it’s pretty clear that the decision rests with Mr. Schiavo, like it or not and I don’t see any upside to hijacking the federal court system for no other reason that a powerful group of people disagree with the choice that he has made. Call me callous, uncaring, immoral, or what have you, but if we are a nation of laws, we will respect the fact that Mr. Schiavo has a legal right to be an ass and make decisions many may not like, such is life and, for that matter, death in a free society.

UPDATE 1:40 pm: As if things weren't bad enough, Congress, specifically the Senate Committee on Health, Education, Labor, and Pensions (HELP) has decided to subpenoa both Terri and her husband to testify before Congress on March 24. According to a press release by HELP Chairman Enzi, "Federal criminal law protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness’ attendance or testimony. More specifically, the law protects a witness from anyone who -- by threats, force, or by any threatening letter or communication --influences, obstructs, or impedes an inquiry or investigation by Congress. " Thus, the real reason for the subpeona is not to get any testimony from Mrs. Schiavo, but rather to prevent the tube from being removed by threating federal witness tampering charges and contempt of Congress. While I haven't researched the legality of this most recent development, I think I tentatively agree with Orin Kerr over at Volokh.

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For those of you that have not been following this case, Medellin v. Dretke, 371 F.3d 27 (5th Cir. 2004), which will be heard next week by the Supreme Court it raises several profound issues from federalism, international law, and the scope of presidential powers. Nevertheless, it may not result in a decision on the merits at all, at least not at this time.

As you may know the United States is a signatory of the Vienna Convention on Consular Relations. Pursuant to Article 36 of the Convention, each signatory nation bound itself to recognize the rights of consular officials of other nations to protect their nationals who are detained in its criminal justice system, by promising to inform each such national of his rights under the Convention, including the right to have his consulate informed of his detention and to contact consular officers. The consulate then could assist these people as they face the processes of investigation, indictment or charge, trial, and execution of sentence. In addition, the United States also "drafted" and convinced countries to become members of the Optional Protocol of the Convention, which grants the International Court of Justice (ICJ or World Court) compulsory jurisdiction to resolve disputed interpretations of the Convention.

This case involves a foreign national, Medellin, who along with 51 others have found themselves in the center of a international legal quagmire. The typical situation appears to be as follows, as foreign nationals wind up in U. S. prisons, many of them on the death rows of many States, their home countries, usually long after their trials and convictions and sentencing, and thus long after defendants had to have raised their rights under the Convention or be procedurally barred, have sought to compel U.S. courts to observe the Convention and to review convictions and sentences in the absence of the defendants having been informed of their rights. The U.S. Supreme Court has, to date, exhibited very little concern for U. S. treaty obligations. For example, when a Paraguayan national and his Government sought collateral relief, without hearing oral argument and in a matter of hours the Court peremptorily denied relief, exalting procedural bar rules and springing the Eleventh Amendment on foreign States. See Breard v. Greene, 523 U.S. 371 (1998). Subsequent efforts have thus far been met by similar denials of cert. Finally, it appears that the foreign nations wised up and went to the ICJ for rulings that the state and federal courts were misinterpreting their obligations under the Convention.

The first efforts before the ICJ were frustrated by the States rushing to execute these people before the ICJ could do anything, even though the World Court requested stays of execution pending adjudication. Finally, in the Avena decision in March of 2004, the ICJ held that the U.S. had breached parts of the Convention in the cases of 52 Mexican nationals by failing to inform them of their rights, failing to notify Mexican consulates, and failing to give them any relief through use of procedural bar rules. The named party in this case, Medellin, sought federal habeas relief, which was denied by the Fifth Circuit. The Fifth Circuit's ruling appears to be entirely sensible and based on the rationale that while the Supreme Court might conceivably change in mind in light of Avena, the circuit was nevertheless bound by the Breard decision. The case was appealed and the Supreme Court granted review, raising the central question of whether a U.S. court was bound to apply the Avena decision, despite contrary state and federal statutory law.

Despite the fact that the Constitution's Supremacy Clause, Article VI, cl. 2, makes treaties, just like the Constitution itself and federal statutes, "the supreme law of the land" and binds judges in every State to observe this law, regardless of any thing contrary in state law, it appears that most state officers have failed to implement the requirements of the Convention, most likely as a result of ignorance as to its requirements. Although the United States Government has proclaimed itself committed to seeing that our obligations are met, the most that it has done up to now is to plead with the States to become compliant.

Of course this is where things get really interesting, the Bush Administration, as a result of the legal wrangling, has been placed in a bind; on the one hand is its obligation to faithfully follow its obligations under the Convention and the Optional Protocol; on the other is its general denial of its international responsibilities, its law-and-order credentials, and the fuss that would accompany its agreement that an ICJ decision could bind state courts. Initially the Administration filed a brief before the Court announcing that the President had issued a directive under which he purported to compel the state courts to afford these 52 Mexican nationals, and only these 52, some kind of consideration as a matter of comity. Naturally, Texas officials - Medillen was convicted in Texas and is on death row there - as well as other State officials cried foul and responded that the President was not about to tell them what they were going to do and besides he doesn't have the Constitutional authority to do so.

And if that wasn't enough, the Administration last week announced that it was withdrawing from the Optional Protocol. The ICJ was not going to get another chance to adjudicate what our obligations are under the treaty. The usual rule, however, is that a Nation’s ability to withdraw from a treaty is to be discerned in the treaty. But the Convention and the Protocol have no provision for withdrawal. The Vienna Convention on the Law of Treaties has several provisions on withdrawals, one of which is that absent a specific provision in a treaty, a Nation may denounce or withdraw from a treaty only after giving not less than twelve months notice of its intention. Now, the U. S. is not a signatory of the Vienna Convention of the Law of Treaties, but it is generally recognized, as "customary international law," a troubling proposition to be sure, but one that even we appear to accept.

What is critical is what is the meaning of all this on the Medellin case before the Court. Texas is trumpeting that it doesn’t care what the President says. At the same time Medellin has filed a request with the Court that it stay action on the case until he has had a chance to present his case, with the new circumstances, to the Texas courts. It is likely that Administration would really like the Court to dismiss the cert. grant as moot or improvidently granted, and it is likely that the situation has changed so much that the Court should not argue it or decide anything. The Court should adopt Medellin’s motion to stay the case while he attempts to obtain relief in Texas courts. He will no doubt be rebuffed, and in my opinion rightly so, but that would appear to pave the way for the Court to take up the case, perhaps with added briefing on the efficacy of the presidential directive, which also appears to me to run afoul of the Constitution. In its latest filing with the Court, Texas requests the Court deny Medellin’s motion and go ahead to hear the case and decide the issue presented, while Texas argues strongly that the President does not have the authority he claims.

A legal quandary to be sure and something to definitely keep an eye on in the next few weeks.

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A little temporary change in the background to celebrate this glorious day. Unfortunately for me, since I am neither:
a)Currently drinking,
b)Living in a city (ie. New York, Boston, Chicago, or Savannah) that has any meaningful celebration,
or c)Irish,
this day shall not be as entertaining as in years past (think rolling around on rooftops). But I send along my merriest wishes to all those who belong to any of the above-mentioned categories.

And a happy anniversary wish to one particular reader who decided to tie the knot on this day four years ago. Oh look at that, never getting drunk on St. Patrick's Day ever again.

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Here is the latest from the Coalition For Darfur.

Many seemed surprised when UN Under-Secretary-General for Humanitarian
Affairs Jan Egeland recently updated the estimated death toll in Darfur upwards from 70,000 to 180,000. Egeland estimates that 10,000 people have died, and continue to die, per month since the start of the genocide 18 months ago. He also admitted that the new death toll might be even higher (more than 200,000) and stressed that this new figure does not include those who have died violently at the hands of the Sudanese government or their proxy militia, the Janjaweed.

The original figure of 70,000 was an estimate, or rather an
underestimate, as it covered only the mortality in camps accessible to
the World Health Organization between April and early September 2004.
As such, it did not include mortality rates prior to April 2004, nor
did it include mortality rates among the more than 200,000 refugees in
Chad, nor the mortality rates in regions inaccessible to humanitarian
organizations.

It is in these inaccessible regions where most of the violence is
taking place. According to Sudan expert Eric
Reeves, whose ongoing analysis of the situation in Darfur has been vital to understanding the widening scope of the crisis, an estimated 240,000 others have died as a direct result of government and/or Janjaweed violence.

If these numbers are correct, and we really have no cause to doubt them, it is safe to assume that some 400,000 Sudanese civilians have died in the last year and a half from direct violence, disease, or starvation.

That is more than 22,200 per month.

That is more than 740 per day.

That is more than 30 per hour.

That is one death every 2 minutes ... for 18 months.

Despite the seemingly hopeless nature of the crisis, we at the Coalition for Darfur believe that together we can raise awareness of the situation and, at the same time, raise money for the vital work that Save the Children is doing by providing food, water, shelter, and protection to over 200,000 children and families in Darfur each month.

Together, and with your support, we hope to make a small but meaningful contribution to alleviating the massive suffering that continues to plague the region.

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Gerry Adams is still tending to his bruised ego after the White House did the right thing this year and snubbed Adams for this year's White House St. Patrick's Day festivities. Of course Mr. Adams had a stinging rebuke for the President.

"Bill Clinton ran a better gig," he said in a speech in New York.

Oooh, I am sure President Bush is still burning with indignation after that clever quip. It's good to know that the head of an organization (or an organization that is tied to an organization) responsible for blowing up innocent people maintains the mental disposition of a five-year old.

I cannot also but help comment on this genius comment issued by Grant Lally, an Irish-American supporter of the President.

There's certainly less tolerance [after 9/11] for political violence that impacts on private citizens.

Gee, you think? I know that right before September 11 I was just warming up to the idea of murdering innocent civilians for political gain, but boy was I put to shame after that day.

The sad part of this whole affair are the useful idiots here in America, particularly in New York - I am looking at you, Peter King - who have whored themselves for this monstrous entity. Shame on them. Shame on them for lending financial and moral support to an organization that murders the innocent. It is a joke to think that we can deal peacefully and rationally with these barbarians, but I guess certain individuals are taken in by the cute brogue and just can't help themselves.

In the meantime, I send my praise and adoration to the sisters of Robert McCartney, who continue to demonstrate remarkable courage and fortitude. Among other things, they have announced that they will run in opposition to Sinn Fein candidates should there be no breakthrough in the case of their brother's murder. If there can be any good in the wake of this terrible event, it may be the ultimate demise of the IRA and their Sinn Fein counterparts.

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Sleep is overrated, don't you think?

Well then, so are the Yankees. Okay, so maybe they have some freakish forty-year old ten foot monster on the mound, but you just know that at the end of the season, after they've won like 110 games, they'll still falter when they have to rely on the recently come out of retirement Ron Guidry to win game seven against the Sox at the Stadium. It'll be the bottom of the ninth inning, the Sox up 8-6, the tying run on second, and the winning run at the plate in the person of Alex Rodriguez. Unfortunately for the Yankees, with a 2-2 count on him, A-Rod will just remember at that precise moment that he has forgotten his fanny pack with his favorite lipstick in the clubhouse, and Keith Foulke will drill a 95-mile an hour fastball right past him.

Ahh yes, it's that time of year again as baseball springs into bloom. It would be nice if spring itself would spring into bloom. It's that exciting time of year when the cherry blossoms appear for like a tenth of a second. But for that tenth of a second there is no greater place to be on Earth than Washington, DC.

Unfortunately for us DC residents, approximately 8.4 billion other people think along the same lines, and they infest us like cicadas on their every 17-year appearance. As one who has been a resident of the two most important cities in America, I absolutely must take this time to express my deep appreciation for tourists.

I love tourists. There is no greater joy than being on the Metro with half-a-million clueless morons who have all crowded the Gallery Place station to wait 15 minutes for a train so that they can take it all the way to Metro Center. And then when they get off the train they decide to stop right there in the middle of the ever-loving platform, mesmerized by the blinking lights and the moving staircases that the rest of the civilised world recognizes as escalators. Even more endearing is the way that their feet all become magically magnetized the second that they touch said escalators, and the concept of standing TO THE RIGHT is completely foreign to them so they all just stand there looking completely dazed and confused, blissfully unaware of the approximately 2,000 people standing behind them hoping to get the top so that they can get to fucking work on time, thank you very much.

Of course I shoudn't be so hard on the tourists. It's not as though the kind citizens of this fair metropolis are much better. Ever hop on I-95 at rush hour? Is the concept of the left lane being just a passing lane completely alien to the people who poulate Virginia, DC, Maryland and Delaware? Here's a clue. When the car in front of you is travelling at 65.2 miles-per-hours, and you are travelling at just about 65.2000000000000000000001 miles-per-hour, can you maybe wait a split second before you turn into the left lane because, you know, if you look in the rear-view mirror you can see a line of cars approxmately 17 miles long all riding bumper-to-bumper as we wait patiently for you to GET THE HELL OUT OF THE LEFT LANE.

And you know what else. You're late for a train, and the doors are closing - LET THE FUCKING DOORS CLOSE. You are not the most important person in the known universe, and your being 30 seconds later for your appointment will not stop the time-space continuum.

Ditto for all the space cadets who dash for the elevator doors as though their baby was on board, and there was a bomb all set to go off the second the doors closed. Hey, gues what slappy, there are other elevators in this bank, catch one of them. Thank you, have a nice day.

It just goes to prove what I always have said: people are oblivious. People go through their day as if there were no other human beings on the planet. That's right buddy, just stand there in the middle of the street looking up at the tall building, taking somewhere in the vicinity of 35 hours to get your camera positioned just the way you want, and the focus precisely right. Yeah, because there's no one here who needs to maybe get around you. You know what you can do with that camera, buddy? Just give it to me, and I'll turn that sonofabitch sideways, and stick it straight up your candy ass.

You like pancakes?

Anyway, I welcome the re-opening of tourist season. As you can see, I am a real people person. I absolutely can't wait for that moment when I am jogging on the Mall and I get trapped behind some couple from Idaho and their fifteen children who have managed to all escape firmly from their control and walk around like a bunch of drunken midgets. And seeing as how I have to make trips to New York on successive weekends, I welcome the idiot from Pennsylvania that I will have to tailgate up the entire length of the New Jersey Turnpike.

Just give me my Korn cd and a shotgun, and let's have some fun.

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Pop quiz hotshot: Name the terrorist organization that, until 9/11, had killed more US Citizens than any other?

The answer is Hezbollah, the so-called party of God. Just in case anybody had forgotten about them, they woke everyone up earlier this week by staging a massive pro-Syrian demonstration in Lebanon that possibly derailed Syria's exit from that country. And this interview in today's National Review Online with Barbara Newman, coauthor with Tom Diaz of Lightning Out of Lebanon: Hezbollah Terrorists on American Soil paints an even scarier portrait of Hezbollah activities. Newman claims that Hezbollah maintains a very heavy presence in the United States today.

Hezbollah has been operating inside the United States. Since the 1980s, the FBI has deported hundreds of members and had dozens of cases. Mostly, in these years, the Hezbollah cells were busted for criminal activity such as insurance fraud, credit-card fraud, counterfeiting clothes such as Levi jeans, phony marriages which they arranged to get green cards, and cigarette smuggling. Though these are sort of under-the-radar crimes, they raised millions of dollars which were sent to Hezbollah coffers in Beirut and in some cases used to buy highly sophisticated "dual-use" equipment in Canada such as very sophisticated computers, cell phones hooked up electronically to be capable of remotely controlled explosions, and intelligence drones.

They have not hit us here but the FBI and CIA thinks if we push them to the wall, cut off their ability to raise funds, get tough with them in Lebanon, they easily could hit us here.

Remember, they are very tough and sophisticated. Their soldiers don't do solo operations. Think of them as a pistol aimed at our head, which can be shot at will.

More discouraging, US immigration policies have made it easier for Hezbollah agents to infiltrate our Nation.

Without a doubt, U.S. immigration policies and practices made it laughingly easy for Hezbollah members to enter the U.S. illegally. There is a place called Margarita Island off the coast of Venezuela where for $300 you can get phony papers to enter the U.S. When immigration officials noticed the blatant forgeries, the Hezbollah members asked for political asylum and were told to report to court on a certain date. Most didn't. Many found ways to stay here simply by taking identities of friends leaving the country or paying women to marry them and never living with them.

Since 9/11, these politics have been toughened and our people are more vigilant in the pursuit of terrorists trying to enter the country.

But we have porous borders to our north and south and Hezbollah has taken to getting people in the country by hiding in the trunk of cars coming in from Mexico.

Finally, Newman states that Hezbollah just might be an even bigger threat to the United States than al-Queda.

A lot of intelligence officers I have spoken to regard Hezbollah as more a threat to Americans than al Qaeda. One FBI station chief I know very well said he's worried about Hezbollah, he's worried about the Hezbollah cells in the United States, and he's worried about Hezbollah members so secretly ensconced here that even operating cells don't know about them.

But of course, Michael Moore has assured us all that there is no terrorist threat in the United States, so we need not worry. Back to putting our heads in the sand.

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In our fight against terrorism, it seems we have lost sight of a terrorist organization that has been in operation for several decades: the IRA. Recent developments in Britain have reminded us just how dangerous and lethal this outfit remains, and it seems the time has arrived to clamp down on their activities.

The murder case of Robert McCartney has garnered a lot of press recently. It highlights the continued savagery of the IRA, as well as its misguided sense of justice. In a bizarre turn of events, IRA agents allegedly offered to shoot the murderers of Mr. McCartney.

These latest developments have invited the scorn of many Britons, evidenced here, here, here, and here. Particularly insightful is the latter article, an editorial in the Times of London. As it concludes:

Mr Adams, in particular, needs to switch to the short game if he and his party are to have any credibility as actors in the democratic realm and partners in any revived peace process. He must make some dramatic initiatives to restore confidence among nationalists as well as Unionists. They include being willing to swallow the humiliation of the IRA figures linked to Mr McCartney’s murder being placed on trial, acknowledging the PSNI as the sole legitimate policing body in Ulster and ensuring that the IRA orders its “volunteers” to cease all criminality, a pro-cess to be assessed by the International Monitoring Commission. Mr Adams might retort that he has strived mightily for the peace process and deserves credit. But others have also made huge sacrifices and sense that they have been betrayed by republican leaders. Mr Adams’s apologists claim that the IRA would split if there were an effort to wind it down. Yet there is already a far more important split evident: between the IRA and the ideals and values of everyone else in Ulster.

Pardon me for a little hyperbole, but am I the only one who sees Gerry Adams as the Irish equivalent of Yassir Arafat? On the one hand, he presents himself as a political figure attempting to quell violence, while on the other hand he winks at the violence perpetuated by the organization he is associated with.

It is hard to believe that a nominally "Catholic" organization can retain much sympathy as it continues to kill random targets and use violence as a means of achieving its political goals. Even more galling is that the British government not only refuses crack down on the IRA, it makes concessions that further legitimize the group.

At least the United States seems to have gotten the message. As this Telegraph Leader from yesterday indicates, President Bush has invited McCartney's sisters to participate in St. Patrick's Day festivities at the White House next week. On top of that, Sinn Finn leaders have been "left of the guest list for the first time in ten years." The Leader continues:

Mr Bush's splendid gesture sends an unmistakable signal to the world that the White House has woken up to the true nature of Sinn Fein. It also marks a turning point in the long love affair between Irish America and the republican movement in Northern Ireland. For some Americans, the destruction of the World Trade Centre brought the moment of realisation that no terrorists deserved support. For others, the turning point came with the news that IRA killers had been passing on their terrorist expertise to guerrilla groups in Colombia. Others again lost all sympathy with republicans after the Northern Bank raid. Still more have been moved by the courage of the McCartney sisters in standing up to the IRA.

Everywhere, the realisation is spreading that Sinn Fein - and the IRA's refusal to disarm - is the chief obstacle to the lasting peace that all democrats want for Ireland. In Dublin, in nationalist Ulster and now in the White House, too, there is no longer a willingness to give Sinn Fein the benefit of the doubt in the face of overwhelming evidence to the contrary. Even Gerry Adams himself, who has urged Mr McCartney's killers to give themselves up, has come to see that he cannot go on blathering about peace and justice while continuing to stand in their way. Only in Downing Street, where Tony Blair's single public pronouncement on Ireland has been an apology to the Guildford Four, does the fantasy seem to survive that Sinn Fein genuinely wants a just settlement.

It is disappointing that a reliable ally in our war on terrorism would be so lax when dealing with the terrorists on their own doorstep. Lest we think this is merely some internal British squabble, I think that if Britain continues to play nice with Sinn Fein and the IRA it will do much to discredit - at the very least - their own participation in the greater war on terror. In particular, their own designs to severely curtail civil liberties under the broad tent of domestic terrorism seems hypocrtical when they allow men like Gerry Adams to continue to parade around and make a mockery of the Britsh justice system. If the Brits suddenly got tough with their own neighborhood terrorists, on the other hand, it might send a signal to more distant terrorists that they mean business, and that they are willing to kick some proverbial ass.

At any rate, we will soon learn how serious Britain is about fighting terrorism.

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Publius over at Legal Fiction has again beat me to the punch with a post entitled "In Defense of Liberalism"(scroll down to the second post), which I encourage all to read. While I don't agree 100% with everything that Publius asserts, he does a very good job of utilizing classical liberal thinkers to establish and build support for the philosophical underpinnings of more modern forms of liberalism. Hopefully, if time permits, I will be able draft a post focusing on the philosophical positives of modern economic liberalism especially in light of John Rawls and other modern liberal thinkers that Publius does not mention, but until I actually accomplish that goal Publius' excellent work will have to suffice.

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This is the first in a series of weekly posts sent to all members of the Coalition for Darfur.

In May 2004, Roger Winter, the Assistant Administrator for the U.S.
Agency for International Development's Bureau for Democracy, Conflict
and Humanitarian Assistance, told a House
committee that it was inevitable that "more than 100,000 people will
die no matter what" in Darfur, Sudan by the end of the year. Winter
went on to warn that, in a worst-case scenario, the number could reach
as high as 350,000.

One year later, the estimated death toll stands at more than 300,000.
The actual number of deaths is nearly impossible
to determine given that the government of Sudan, fearing the
truth, refuses to grant access to the World Health Organization so
that it can conduct a mortality survey. Nonetheless, knowledgeable
observers agree that thousands have died at the hands of the Sudanese
government and their proxy militia, the Janjaweed (a term meaning
"Devils on Horseback") and tens of thousands more have died of disease
and starvation after having their villages destroyed in government-led
attacks. More than 2 million Darfurians have been internally
displaced, the agricultural economy has been decimated and an
estimated 3-4 million people are in need of humanitarian assistance.

Nearly two years ago, the Muslim government in Khartoum was in the
process of finalizing a peace accord that would end a twenty year
civil war between the government in the North and the Sudan People's
Liberation Army in the South that had taken some 2 million lives.
Fearful that the Western region of Darfur was going to continue to be
ignored in the new coalition government that was being formed, African
rebels launched a series of raids against government facilities.
Rather than negotiate with the rebel forces in the West, the
government of Sudan enlisted Arab militias in a campaign to wipe out
the rebels and anyone suspected of supporting them. In the process,
hundreds of villages have been destroyed, tens of thousands have been
raped and killed, and millions have been displaced.

The international community has responded in a haphazard fashion. The
African Union secured the deployment of some 4,000 troops to the
region, though its mandate was limited to monitoring a cease-fire that
neither side honored. Less than 2,000 AU soldiers have arrived and
they have limited logistical capabilities for covering this area
roughly the size of Texas, nor do they have a mandate that allows them
to protect civilians. The United Nations has been plagued by
inaction, with China and Russia using their veto power to water down
Security Council resolutions seeking sanctions or demanding
accountability. A recent UN investigation detailed
massive war crimes and crimes against humanity but stopped short of
calling the campaign a genocide, a declaration
the United States made last September. For now, much of the debate is
focused on where any cases arising from this situation will be tried:
the International Criminal Court or some Africa-based tribunal.

Angered by the lackluster response to what is widely acknowledged as
the "world's worst humanitarian crisis," a group of bloggers have
formed a Coalition for Darfur to do what little they can. We seek to raise awareness
of the crisis in Darfur, but also to raise money for the vital work
that Save the Children is doing by providing food, water, shelter, and
protection to over 200,000 children and families in Darfur each month.

Together, and with your support, we hope to make a small but
meaningful contribution to alleviating the massive suffering that
continues to plague the region. Please consider making a donation via
our Coalition for Darfur blog.

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When you kill a beast say to him in your heart,

"By the same power that slays you, I to am slain; and I too shall be consumed.
For the law that delivered you into my hand shall deliver me into a mightier hand.

Your blood and my blood is naught but the sap that feeds the tree of heaven."

And when you crush an apple with your teeth, say to it in your heart,

"Your seeds shall live in my body,

And the buds of your tomorrow shall blossom in my heart,

And your fragrance shall be my breath,

And together we shall rejoice through all the seasons." - Kahlil Gibran, "The Prophet"
----------------------------------------------------------------------------------
A couple of weeks ago I picked up an issue of Time while waiting in the barbershop. One of the articles was a feature on dimestore philosopher Kahlil Gibran, author of, among other things, "The Prophet," an insipid bit of drivel that has been swallowed whole by millions of naive Americans who think they have stumbled upon the most profound writings in the world. Among other things, Gibran discussed the war in Iraq, for which he is opposed. Among his rationale, and I paraphrase, was that the children of Iraq did nothing to America. Truly profound.

Gibran is who dumb people - particularly dumb white people - read when they want to pretend to be intellectuals. I read the Prophet, and managed to avoid falling asleep only through sheer will. Luckily for us all, Gibran has also shared his feelings on the war, for which we were all waiting with bated breath. Of course Gibran failed to mention the thousands killed by Hussein, the tortures, the rapes, and complete lack of freedom, but I suppose he was too busy pontificating about talking to apples to read up on the Iraqui situation.

I really don't care what Gibran has to say, and this little rant isn't about his anti-war feelings. Rather, what concerns me is how many people just eat up this namby-pamby bullshit as though he were writing anything meaningful. He is just another in the long-line of vapid pseudo-philosophers that Americans flock to because evidently we can't come come up with anyone who truly has anything profound to say.

It is culmination the Oprah-ization of our society. Americans have been deluged with pap sentimentality, have been trained to get in touch with our "feelings," and have been pussified by a culture that glorifies empty slogans and mushiness.

Because, in the end, all that matters is emotion and feeling. How we feel is supposed to mean more than what we do. Feeling bad about the homeless is good enough. One need not actually, you know, do anything. See, that's for the government to take care of. Drippy sentimentality is all well and good, perhaps, when you're writing love letters to your girlfriend. But in the real world, there is a limit, and we have reached the limit, broken past it, and have been consumed by it.

Sentimentality is a destructive force because, rather than unifying us, it detaches us from humanity. Vague sentimentality seeps into our national consciousness to the point where we feel bad about everything. We become mindless drones feeling our way through lives, but instead of focusing our energy on the important parts of our lives, we become overloaded by all these drippy sentiments and become, in a sense, numb to it all.

Sentimentality robs us of our capacity to feel strongly enough to actually act out on our own. Aggression is good - it can be a driving force to human action. But in Oprah-land, it's all well and good to sit back with a box of tissues and cry over fallen mankind, but there is no martial force imploring us to do anything. We seemingly are doing everything to suck the testosterone out of the Nation and turn our men into a bunch of touchy-feely meterosexuals more concerned with their haircare than the national defense.

I propose that we just go ahead and remove the Eagle as our national symbol. In its stead I think it would be appropriate to replace it with our new national symbol: the vagina. Any why not? There can be no better representation of the continued descent of a people who flock bookstores to purchase sentimental poop like the "Prophet," "Chicken Soup for the Soul," or "My Life." Instead of fighting the terrorists with guns and bombs, we should arrange a world-wide group hug that will be followed by a very large group therapy session led by Dr. Phil. We can express our "rage" in a constructive manner to Osama bin Laden, and tell him that he has hurt our feelings. I think that if we just sat down with all the Middle Eastern terrorists and despots and just talked with them over some mocha lattes, maybe offer them all some backrubs and play some Enya, then we can end terrorism for all-time.

Because, all you need is love, right?

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Some of you may have noticed a new link on the side of the page for the Coalition for Darfur. This site has been created by left-wing blogger Eugene Oregon of the Demagogue blog and Stephen Dillard of the right-wing Southern Appeal blog. A coalition of blogs has been formed to spread awareness of the crisis in Darfur as well as to raise money. Dillard explains more about the project here.

All of the bloggers on this site have agreed to participate as this is an issue that clearly crosses partisan lines. We may have disagreements on specific remedies, but I believe we all feel very strongly that much more should be done to alleviate the crisis.

Speaking personally, I have been woefully lax in keeping informed of what is a terribly important humanitarian issue, but hopefully now we will be able to join forces across the political spectrum (no pun intended) and do whatever little we can to help. Please click on the link to view the site, and if you so desire once there you can contribute whatever donation you might be able to spare.

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When law students derided television shows about the Supreme Court -- there were 2 about 4 years ago -- it was largely because most of the Court's decisions do not make headlines. A sizable percentage are very boring indeed.

But with yesterday's decision the juvenile death penalty, and today's arguments on the 1o Commandments cases, it begins to make sense why people think these are the kinds of cases the Court handles all the time.

On the 10 Commandments cases, there was a very carefully drawn editorial in the NYTimes today. It attempts to pit Catholics and Orthodox against Protestants by noting that both the TX and KY displays used the "Protestant" version. By this, I figure they could mean either of two things. First, the display could be from the King James Prottie translation of the Bible. Second, the display could use the numeration more often used by Protestants. (There are at least 2 lists of the 10 C's in the OT; Catholics tend to use one and Protestants tend to use the other. The difference is solely in how the Commandments are grouped together and numbered.)

But I am just wondering about the Times' attempt to raise Catholic hackles against the displays. Do they think it will work? Does the Democratic machine that was fed by Catholic support in the post-WWII era fear that it has finally lost their support? Any other thoughts?

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I ask my fellow bloggers and readers this with all sincerity. Having read the opinions and perused the blogosphere regarding this decision, I have to admit that while I agree with the "consensus" (I realize this is now a dangerous word) that the majority’s rationale is at best faulty and at times downright disingenuous, I’m not entirely convinced that the "end of our Constitution is near," or that drastic measures such as constitutional amendments term limited justices or legislative action stripping the Court's of jurisdiction is necessary to "reign in" the Supreme Court.

As several commentators have pointed out, this decision really only effects a few states and an even fewer number of actual persons. (See here and here) On top of that, it appears that it was becoming standard practice at the state level not to execute minors even before the Court’s decision. (See here) Now, before Paul, GC, and Unconfirmable jump down my throat and accuse me of being a "liberal sympathizer," let me reiterate that none of these practical effects in any way justify the utterly poor, entirely unconvincing, and wholly unworthy of a Supreme Court Justice reasoning that is the majority opinion. My question is more basic than that. Stated another way, is this really the case to loose sleep over, or is this more akin to a "bad facts make bad law" situation?

At the moment I’m leaning toward the latter, largely because of the apparently limited effect that this decision will have. Now that we have addressed juveniles and mentally retarded persons (Atkins), are there any other classes of people who ought to no longer eligible for the death penalty? Sure, a return to the days Furman v. Georgia and a complete abolition of the death penalty is always an option, however, realistically I don’t believe there are 5 votes on the Court for that position. Even the much maligned "evolving standards of decency" rationale has no application outside of the 8th Amendment, so the fact that it has been shown to be nothing more than a smoke screen for the personal preferences of a majority of the Justices, presents a relatively minor if not infinitesimal problem in the grand scheme of American jurisprudence. Perhaps the one area of the opinion that will have some precedential effect outside of the 8th Amendment is the discussion (note I do not use the words citation or reliance because, as I have indicated in previous posts on the use of international law, those are different) of international law and its applicability to American legal interpretation. Even this development is hardly novel and has appeared in other Supreme Court opinions outside the 8th Amendment, so it is far from certain that this discussion will add or detract in any way from this on-going debate.

Thus, I ask again, has there been an overreaction to Roper? Clearly the decision needs to be scrutinized and criticized for what it is, namely a horrible and extreme application of what Justice Cardozo called "judicial realism," and what I have taken to calling the jurisprudence of the ends justifying the means (which, by the way, in my opinion, is something that we are seeing far too often not only with respect to our law and legal interpretations, but also in the political rhetoric of both major parties these days). All that being said, maybe there is something to the "death is different" point-of-view that needs to be more carefully considered. Hopefully, if nothing else, this post will spur some interesting comments.

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But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Planned Parenthood v. Casey, 505 US 833 (1992)
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Unconfirmable has said in many less words than I am about to use exactly what I think of the decision in Roper v. Simmons. Kennedy makes me physically ill. Who would have ever thought that there could possibly be a more repulsive Kennedy in the United States government than Ted. Well, at least Ted has no real power. Sadly, the same cannot be said from our Nation's worst Supreme Court justice.

Let me begin by stating flat out that I personally oppose the death penalty, and as such agree with the policy outcome of this case. But that's the thing. The Supreme Court's responsibility lies in deciding whether legislation comports with the US Constitution, and not as being a moral arbiter of various state policies. Kennedy's decision is awful for a variety of reasons, inculding: complete rejection of the the federalist principle, reliance on pop-psychological studies, a vague description of "evolving national stanards," reliance on "international law," and almost a complete abandonment of the actual text and intent of the Constitution.

Let's start with federalism. Kennedy approvingly cites the Missouri Supreme Court (by the way, yet another problem with this decision as the Court fails to at the very least rebuke a lower Court for completely disregarding a Supreme Court holding):

a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution since Sanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade

So the Court is saying that since 30 of 50 states in one way or the other have repudiated the juvenile death penalty, this proves a national consensus has emerged against it. Interesting. First of all, note how 30 of 50 states represents a national consensus. 30 out of 50. Why does that number ring a bell? There's something about 30 states and the 2000 election, but I just can't seem to place my finger on it.

More importantly, even if these statistics represent a "national consensus," so what? Texas has obviously not joined the consensus. Supposedly, through the magic of the mystical 14th amendment incorporation doctrine, the federal judiciary can apply its universal standards to the particular states.

De Tocqueville warned that one of the greatest perils of democracy was centralization, a prediction that has proven to be all too true. Some critics of the Court assert that its fundamental problem is that it is anti-democratic. In some ways I believe just the opposite. All too often the Court has fallen prey to the whims of the moment, and instead of preserving the rule of law, it callously applies majoritarian prejudices to inhibit the states from observing their own laws. Even if there is a national consensus against the juvenile death penalty, the Constitution protects minorities from majority tyranny through various mechanisms, none the least of which is federalism. But don't take my word for it, just consult Kennedy's closing words in his majority opinion.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity.

There's a nice bit of Yiddish that applies to Kennedy here: Chutzpah. Kennedy thus crafts an opinion that repudiates the very principle he claims instills the veneration necessary to uphold the document. And let us note the irony here as Kennedy also praises the balance of power while at the same time upholding the Court as the final arbiter of constitutional interpretation and moral standards.

We then must determine, in the exercise of our own independent judgement, whether the death penalty is a disproportionate punishment for juveniles.

Forget what other states might have to say about this issue, the Court has taken upon itself the task of deciding the morality of the juvenile death penalty. Of course, while the Court is setting itself up as a moral arbiter, one has to wonder whether this contradicts Kennedy, Souter, and O'Connor's deeply philosophical sentiment laid out in Casey:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

And yet the Court now sees no problem with defining moral standards for the entire country as it relates to the death penalty. Fascinating. Simply fascinating. Of course, Justice Scalia brilliantly exposes the Court's error of judgement in his dissent.

But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?

It only gets worse from there. The decision relies on dubious psychological studies and other sentimental claptrap that has no relevancy here. Once again, Scalia exposes the flaws in the Court's methodology.

To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

Basically, the Court cherry-picked the scientific evidence it relied upon to determine that juveniles were not mentally developed enough to merit execution.

Speaking of cherry-picking evidence, the Court did much the same in relying on international standards in buttressing its arguments. Kennedy cites the fact that the United States is the only western nation to permit the execution of juveniles as indicitive of what, I do not know. And yet Kennedy seems to have no problem when it comes to the United States' unique position as it relates to abortion. As Scalia notes:

And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability.

Well, that's not fair. It's not as though Kennedy played a major role in preserving the United States as a provider of abortion on demand. Oh wait, yeah, he did. Oooh, awkward.

Simply put, citing international standards is a dubious proposition at best. As Scalia notes many other foreign nations that have the death penalty do not allow juries to consider mitigating circumstances in applying the death penalty. Moreover, it is difficult to compare Nations and apply one's moral standards to another. After all, we have all developed differently, and we have all established different customs and traditions. We can't even necessarily look to our mother country for guidance.

It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War--and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists--a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect.

Finally, our selective application of "international standards" reveals the hypocrisy of the Courts.

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry

It is growing more and more difficult to abide the decisions coming from this so-called "conservative" court. With each repulsive decision it becomes more and more clear why the President must be able to appoint individuals to the bench who will actually, you know, interpret the Constitution. Until then, the Nation is held hostage by a Court that has absolutely no qualms with asserting its own nationalist vision upon the entire country.

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The opinion in Roper v. Simmons was not only a travesty of constitutional law, it was a travesty of law, period.

The only comfort -- slight, at that -- is that the majority opinion displaces law with pure whimsy. States should therefore take comfort that they can ignore today's ruling, just as the Mo. Supreme Court ignored then-binding federal precedent. For, if a state court can re-examine the question of "contemporary values" and determine that the federal constitution makes it unlawful to impose capital punishment for a crime committed by a minor, surely a state executive is free to do the same. A governor can re-examine the question in the future and ignore presently-"binding" federal precedent by ordering his executioner to put a minor to death.

I'd give just about anything to the state that fries a minor in accordance with the above opinion. Kennedy makes me physically ill.

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Listening to the radio on my way home from work in the evenings I generally catch portions of a local talk show hosted by a Washington area host named Chris Core. Mr. Core is a decent host who, by his own admission, is a political moderate, registered independent, and probably leans to the right-of-center, but not by very much. Anyway, last night one of the show’s topics was the Oscars and specifically host Chris Rock’s opening monologue, which to my shock and utter dismay, Mr. Core labeled as "inappropriate" for such an event.

Have we really reached the point where something like the opening monologue at the Oscars is going to be subject to media and political scrutiny? Are we going to have to watch as the freedom, creativity, and expression of our society’s most successful entertainers is nitpicked, criticized, and scrubbed for political correctness or as conservatives tend to label speech they don’t approve of "indecency." Admittedly, when Chris Rock was named host of the Oscars I remember thinking to myself "that’s an interesting choice." It was interesting because I personally didn’t think that Chris Rock could be funny on live network television. Don’t get me wrong, Chris Rock is, in my opinion, hilarious. He is probably the second or third funniest person out there right now (behind only Robin Williams and George Carlin), that being said, Chris Rock is at his best in situations where there is little or no restriction on his ability to use colorful language, racially charged comments, and well let’s face it, ideas that are no longer acceptable for live network TV. Between the 15 second delay, FCC regulations, and Congressional legislation threatening to fine ABC as much as $500,000 for any "indecent" speech, there was really no chance in the proverbial burning location of the afterlife, that Chris Rock was going to be as funny as the host of the Oscars as he is during his live comedy routines, or as he was on his HBO TV show.

All that aside, was Chris Rock’s monologue "inappropriate" as Mr. Core alleged last night on the radio? I don’t even really think this is a close call. Sure, Chris Rock picked on the President of the United States, but he did so in a way that was hardly offensive or inappropriate. Does anyone really equate being POTUS with being a clerk at the GAP? Did anyone really take offense when Chris Rock compared the war in Iraq to a fight between the GAP and Banana Republic? (This joke of course is even funnier if you realize that GAP and Banana Republic are owed by the same parent company, who also own Old Navy. Don’t ask how I know this, but trust me it’s true.) Besides Chris Rock made fun of numerous people throughout the evening, Michael Moore, Tim Robbins, and most of all himself: "If your hoping for Denzel [Washington] and all you can get is me, please wait." Put it this way, I know that there were several people, myself included, out there who would have loved the following to have occurred: 1) Billy Crystal as host of the Oscars (face it, he’s the best that there is for this gig); 2) both Fahrenheit 9/11 and Passion of the Christ nominated for major awards. Why? For no other reason than because we all would have been sitting on the edge of our seat waiting to see how Billy Crystal would have incorporated both films into his opening song and dance routine. Why? Because Billy Crystal is funny, and it would have been great entertainment.

Was Chris Rock as funny as he could have been? No, but in all fairness, as mentioned above, I don’t really think this was possible. Is it fair to criticize Chris Rock for not being funny? Sure, humor is subjective, and therefore, not everyone is going to agree about what is funny and what isn’t (for example, I personally can’t stand Steve Martin, his mere presence bothers and annoys me, so consequently I don’t pay to see his movies or watch them on TV). To use the word inappropriate, however, I think crosses into an area that we don’t really want to tread. Chris Rock’s monologue was a lot of things, but I don’t think inappropriate was one of them. When we start down the path of deciding a priori what is appropriate speech at a pubic event and what is not acceptable we are censoring people. We need to be able to trust our entertainers to use sound judgement. Rules and regulations are fine, to a point, as long as they are not censorship. Parents need to use their judgment as well when deciding what things children should and should not watch.

In my opinion, we can and should have programs that are both acceptable and creative and I think that by and large, with a few noted exceptions, this is the norm for American entertainment. Like I said, criticize away for something not being funny, enjoyable, or suited to your tastes, but don’t ry to censor or label things as appropriate or inappropriate before they happen. I don’t believe that anyone wants to live in a country where everything is run by a censorship committee before it can be shown or TV or discussed on the radio (see Good Morning Vietnam for a reference to what I am referring to). In other words, be careful what you wish for.

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