June 2008

WHAT? The local bird cage liner of record writes its \”news\” articles in a politically slanted way? I’m stunned. Obama ahead of McCain by 12% is sizable, but a 19% gap in favor of a constitutional amendment to ban same-sex marriage is slim.  That reminds me of the unemployment stats during the 1996 elections sitting at 5.7%, which was treated as evidence of a booming Clinton economy whereas unemployment stats of 4.5%-5.5% during the last year are evidence of Bush’s policies producing Depression-era-like economic disaster.

If you are a recent college graduate, here is some comforting news.  If you’re depressed and angry, you’re not alone. Just get over it, which you will eventually.  Just think of it as the “seven-year bitch.”

On the other hand, no matter how depressed you are, it could be worse.  Here are some jobs that take particular dedication.  Some of these sound rather like buzz-killers for dating.

With the end-of-term rush of Supreme Court cases now past, I want to return to a case that I covered briefly in an earlier post.  I would like to address the arguments made by the Supreme Court in the Guantanamo detainee cases, Boumediene and al Odah, along with the replies in the dissenting opinions of Chief Justice Roberts and Justice Scalia.

The Court addresses two main points, the existence of a constitutional right of habeas corpus for detainees at Guantanamo and the sufficiency of the procedural protections under the Detainee Treatment Act of 2005 as substitutes for the protection offered by habeas corpus.  The Court concludes that there is such a constitutional right, and that the DTA procedures are an inadequate substitute for habeas corpus. I will address the habeas issue in this post and the procedures in the next one.

As to the existence of a constitutional right to habeas corpus, the Court rejects the apparent historical reliance on formal de jure sovereignty in favor of “practical sovereignty” and “functional considerations.” The immediate problem here is that the U.S. has no de jure sovereignty over Guantanamo (Cuba does). This the Court concedes. The Court maintains, however, that the U.S. has practical sovereignty, since Cuban courts cannot exercise jurisdiction there. Nor can Cuban personnel enter the base. Nor can Cuba cancel the lease, so long as the U.S. wants it. On the other hand, the U.S. can only use Gitmo as a naval base and could not use the area to set up some self-governing municipal outpost that would be a component part of the Union.

The Court concedes that it has never held that a non-citizen held by the U.S. in territory over which another country has de jure jurisdiction has any constitutional protections. Moreover, the Court faces the problem of English practice under the writ as it existed in 1787. Even if the scope of the writ is not limited to the reach accepted at the founding of the U.S., the Court faces the precedent of Johnson v. Eisentrager. That is a 1950 case that rejected the claim to habeas corpus made by German nationals who were turned over to American forces in China at the end of World War II, convicted of war crimes, and transported to and held at Landsberg Prison in the American Occupation Zone in Germany. Here is a link to that case.

To establish a basis for its practical sovereignty focus, the Court relies on several arguments. One is that the writ makes no distinction textually between different territories and types of jurisdiction. A second is that there is no specific historical English case that rejects on lack of de jure sovereignty grounds a writ of habeas corpus claim by foreigners held abroad. The Court and Justice Scalia duel over the precise scope of the common law writ.  Especial attention is devoted to Lord Mansfield’s opinion in King v. Cowle.  Scalia concludes (rather convincingly, in my opinion and that of historical commentators) that Mansfield made a distinction between writs to courts where formal sovereignty existed and where it did not, regardless of purely practical differences or lack thereof in enforcing the writ:

“The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante, at 19–20. But the very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating that English courts had the “power” to send the writ to places within the Crown’s sovereignty, the “only question” being the “propriety,” while they had “no power to send any writ of any kind” to Scotland and other “foreign dominions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600. The writ did not run to Scotland because, even after the Union, “Scotland remained a foreign dominion of the prince who succeeded to the English throne,” and “union did not extend the prerogative of the English crown to Scotland.” Sharpe 191.”

The Court also relies on The Insular Cases and Reid v. Covert to argue for its “practical sovereignty.” As to the former, the Court (correctly) points out that those cases rejected a theory that the Constitution only applied outside the U.S. if Congress specifically authorized it.  On the other hand, of course, The Insular Cases also rejected the theory that the Constitution automatically follows the flag, a theory that the Court’s “jurisdiction-follows-the-king’s-officers” approach at one point implicitly adopts, though Kennedy doesn’t say so. Instead, The Insular Cases developed a theory of territorial incorporation: The Constitution applied in full force to territory that was intended to become a part of the U.S., such as the Louisiana Purchase, but only in undetermined parts (as developed by Congressional intent and judicial analysis) if the territory was not to become a formal component of the U.S. (such as the Philippines or Cuba after the Spanish-American War). The latter case involved the murder trial without jury of the wife of an American serviceman in an American military court pursuant to an executive agreement between the two countries. While the case has several opinions that compose the majority, the Court here interprets Reid and a precedent distinguished therein (the Ross case) as relying on “practical considerations” (including the fact of American citizenship as one factor) in determining the scope of constitutional rights available to Americans being tried by American military tribunals in the sovereign territory of another country.

Justice Scalia easily distinguishes The Insular Cases by pointing out that, unlike Guantanamo, each of the territories there at the time was under the de jure sovereignty of the U.S., thereby making the cases inapposite to the question whether habeas corpus runs outside formal U.S. control.  As to Reid and Ross, Justice Scalia points out that the Court in Ross and at least the concurring justices in Reid, if not the plurality as well, may have concluded that, for practical reasons, U.S. citizenship alone does not necessarily protect your constitutional rights abroad. But even if citizenship is not enough for full constitutional protections abroad, that does not show that such citizenship is unnecessary for any protections to apply abroad. 

As to the Eisentrager case, the Court concedes that there was no de jure U.S. sovereignty over Landsberg Prison, but folds that point into its overall functional analysis as simply one factor to consider. Kennedy concludes that the Eisentrager case rests on “objective factors and practical concerns.”  The Court finds three factors for its determination of the scope of constitutional protection available, including access to the writ of habeas corpus: 1. Broad considerations of citizenship and status of the detainee, and the procedures through which the status determinations are made; 2. The nature of the sites where apprehension and detention took place; 3. The practical obstacles inherent in resolving petitioner’s entitlement to the writ.

It is that kind of judicially-created uncertainty that leads critics to declare that Kennedy just makes things up as he goes along.  Mind you, the military in capturing and detaining enemies is now required to guess as to what kind of procedures and evidence suffices for this “balancing” of lawfare factors, which, of course, itself can change on the whim of the Court. The Court’s factors are puzzling. Why should the detainee’s citizenship matter when the Court seems to conclude that habeas applies to non-citizens as well as citizens held under similar circumstances? Why is number 2 necessary when number 3 exists?  After all, in the Court’s attempt to distinguish the practical problems associated with the writ as to Gunatanamo versus as to Landsberg Prison, the site of detention supposedly caused the practical problems that the last prong addresses.

Scalia rejects the Court’s new framework.  He points out, correctly, that Eisentrager never discussed “lack of practical sovereignty” for the denial of the writ.  Moreover, the case never mentioned factors such as a planned long-term occupation, or lack thereof.  Its list of practical considerations was to illustrate the absurdity of the petitioner’s (and the lower court’s) position above and beyond the limited historical availability of the writ to aliens within U.S. territory.  It was not a new holding of constitutional law.  One has to wonder how the practical considerations that the Court assigns to the Eisentrager situation are so different from that of the Gunatanamo detainees.  Certainly there were a lot fewer Germans in Eisentrager than detainees at Gitmo.

Finally, the Court in a statement that drips with arrogance as well as condescension to the political branches, declares that the writ is required for the separation of powers and cannot have its scsope manipulated by those it is intended to restrain.  Scalia mockingly turns the Court’s lecture against it. He points out that the separation of powers restrains the Court, as well. Separation of powers is not an amorphous and judicially made-up concept.  It is one contained in the specifics of the Constitution itself.  And the Constitution has never extended the writ to aliens held abroad.  He accuses the Court of engaging in manipulation of that principle. (Given the sheer indeterminacy of the Court’s “standard,” there will be room for judicial manipulation for many cases to come.)

The Court attempts to distinguish Eisentrager by saying that there the German prisoners were subject to the jurisdiction of the combined Allied Forces.  That is odd, in a functional sense, since they were tried by an American military commission and kept in an American-controlled prison in the American occupation zone, if we want to be ”functional” about this. Scalia retorts sarcastically that the Court seems to be more comfortable if the American military is subject to control by foreigners than if it is subject to control by American civilians.

Further, the Court insists that in Eisentrager, the Germans had been given a rigorous adversarial military process to test their detention.  In the Gitmo case, the procedures were more informal and defective.  As Scalia points out, the Germans were tried for war crimes after hostilities had ceased.  Here, these are mere detentions while hostilities are occurring.  Of course one would expect fewer protections in the latter than in the former (just as there are for civil detentions versus criminal proceedings).

In my next post, I will review the Court’s review of the DTA procedures, and the dissent by Chief Justice Roberts.

Mention the word “speculator” and people immediately get an image of a sly and rather odious capitalist, wearing a vested suit and top hat, and insidiously enriching himself at the expense of the honest, hard-working multitude.  Such a negative image is a useful tool for class-warfare-inclined, grand-standing politicians.  Stories over the past year about housing market speculation, stock speculation, and commodity speculation have focused public scrutiny on “speculators.” Few stop to think that, one, speculators may serve an important economic function, and, two, that we are all speculators.  As to the latter, I bought a dozen bottles of Ocean Spray cranberry juice last week.  The usual price of the juice at that store is $4.59 per bottle.  They had a sale, with a price at $1.99 per bottle.  I speculated that after that “sale,” the store would increase the price to $4.59 again.  Had the store thereafter set the price at $1.29, I would have made a poor decision.  As it is, I now have bottles of a juice I like that I will not need to buy at the higher price.  Of course, if you really like that juice and missed the sale, I’ll sell it to you for less than $4.59 per bottle (though more than $1.99).  In that case, my speculation has moderated the high price for the juice that you would otherwise have to pay.  So my speculation has not only helped me, but you. Done by enough people, this limits the amount by which the store can raise its price, thereby moderating potential price increases and volatility.

My friend and colleague, Butler Shaffer, has posted his take on the latest anti-speculator fever.  He raises the important point that government policies (e.g., environmental restrictions) increase economic and business uncertainties, thereby increasing risk.  Increased risk not only makes “speculation” more likely, but necessary to act as hedges against volatility.

John Stossel\’s thoughts on the matter make the same point. I also agree with his remark that, in the short term, speculators can sometimes fuel volatility, especially in a product (such as petroleum) where a government or business cartel can throw Professor Shaffer’s “brick through the spider web” by reducing availability of a product for which demand is rather inelastic and that requires time and capital to produce. But the typical government response to target speculators in general because of a temporary distortion is, as usual, overkill and will probably come too late anyway.  It’s easier politically, though, as Professor Shaffer notes ruefully, for government to “fix” the problem with more regulation than really to fix the underlying conditions (significantly in the form of government regulation) that create volatility in the first place.

Is Obama an insufferable elitist snob?  Or are his advisers tone-deaf, even after his previous pratfalls?  Or both?  Slate magazine has had great fun over the past several years (as has the Doonesburycartoonist) mocking “Bushisms,” examples of the President’s misstatements. I wonder (well, not really) whether they will be as enthusiastic in lampooning Obamaisms?  Haven’t heard any?  Gee, I wonder why.  Let me help with just a couple: Obama\’s geography lesson—are there 48 states plus Alaska and Hawaii (that’s a mistake McCain might make due to his age)? 50 states? 57 states? The Obamessiah\’s raising of the dead—all those “fallen heroes” that made it to his campaign rally.  BTW, why would you make political statements like that at a ceremony to honor the war dead? Does the concept of “shame” mean anything? OK, I’ll throw in a bonus—the infamous “bitter clingers to religion and guns” remark.  Then, of course, there are the shifting statements about various radical clergymen and other advisers, and the public campaign financing two-step, the Iran policy pirouettes.  Just a preview, folks, of what we can expect, a change from mangled syntax to mangled comprehension.

This is the kind of headline that will not instill confidence.  The qualifiers and disclaimers may be scientifically valid, but they just sound alarming.  “No, Katie, there probably won’t be an end to the world this August, but, hey, if there is, at least Bush and Cheney won’t get to finish their terms of office.”

Fall-out from the Supreme Court\’s Guantanamo detainee decision. It will be interesting to see how the lower courts and the Supreme Court deal with the flood of petitions from detainees.  While many are reading the Supreme Court’s decision as a green light to release the detainees, I think the jury is still out.  The Supreme Court’s action in the mentioned Bismullah case is quite opaque.  It looks like the Circuit Court may have gone too far for the Supreme Court’s taste, in interfering with government detainee determinations.  BTW, if the detainees win, expect them to demand asylum and release within the U.S., rather than being shipped back to their home countries as I would want.  In past cases, the Uighurs’ attorneys have claimed that they would be subjected to torture if they were returned to China and asked the courts to order the government to keep them at Guantanamo!  Why? Because the Chinese believe them to be terrorists, even if our courts (or military) don’t.

Of course, we will see extensive media coverage of this, right? On second thought, we probably will, starting with press releases by Trinity United Church in Chicago, saying that this is further proof of racism and, as Kanye West put it, that President Bush doesn’t care about Blacks. After all, Iowa has a far lower percentage of Blacks than does New Orleans.  That might not be true of East St. Louis, which is also benefiting, but truth isn’t usually the point with such claims.

Without addressing the particulars here, such as the levees and broad flood control issues, I am still amazed that people expect the level of government physically and constitutionally most removed from their everyday affairs to help them with ordinary relief.  We’re not even talking about some kind of flood insurance or rebuilding.  We’re talking about ordinary relief and repair efforts.  Individuals should be their own first source of relief, followed by local government, then state, and, finally and most remote in time and scope of relief, the feds.  But as Katrina showed in the difference in reaction between New Orleans and Mississippi, the people in the former had learned to live on the welfare plantation whereas the latter were more self-reliant. Moreover, the local government of Mayor Ray Nagin (the man who proclaimed that Katrina happened because God was punishing the U.S. for invading Iraq), and the state government of Governor Kathleen Blanco were totally inept and corrupt, unlike the Mississippi authorities under Governor Haley Barbour (or the Iowa authorities under Governor Chet Culver). That’s why eventually federal troops under Lt. General Russel Honore of “Don’t get stuck on stupid” fame had to deal with the mess created by the local and state governments.  FEMA was in a similar spot, dealing with matters that they weren’t really equipped to do.  But they were just worse at rising to the occasion and cleaning up other people’s messes than the military was.

Via Michelle Malkin. Obama has proclaimed how the United States has lost standing among international elites, and how he talks their language and can sit down without preconditions and negotiate prodigal America’s return to their good graces. Well, that’s not exactly how he puts it, but it’s the gist of the matter. Looks like at least some of the foreign elite (Castro, Khaddafi, Hamas leadership, Justice Kennedy et al.—just kidding as to the last) have signed on.  Others are still off the reservation, such as—get this—France’s Sarkozy, whose views of the dangers of a nuclear Iran parallel those of Bush, not Obama.  Well, at least not pre-May’s Obama, whose views then changed in a speech before AIPAC before sort of changing back, or maybe not; it’s hard to say.  Now comes the main man, none other than Kim Jong-Il, North Korea’s Fuehrer, I mean, Dear Leader.  I dare say that now that this pompadour-sporting, platform-shoe-wearing, film-collecting thug has joined the Obama team of supporters, a pattern is clearly emerging. Obama is right: He will do things that will make America’s standing with these folks better than Bush did. Some of us who like W (though not necessarily all of his policies) join with the sentiment uttered in the 1884 speech nominating Grover Cleveland to be president: “We love him for the enemies he has made.”  The sentiment for Obama will be the reverse.

This is an excellent analysis of Justice Scalia’s opinion in Heller.  Of course, that just means that I agree with it. Had I written an analysis myself, this is what I would try to have it look like. One very minor point.  Regarding the Miller precedent, I think that Scalia not only (correctly) sees the case as supporting an individual rights view, he also in Heller wrote very dismissively about any attempt to read Miller as representing a collective rights (military) view of the Second Amendment. Yet that is precisely what many (liberal) professors and courts of appeals had done.  The latter were wrong, of course, as a reading of Miller easily shows.

Here is the long-awaited decision of the Supreme Court in the Heller case.  Justice Scalia, writing for a 5-4 split, upholds the “individual rights” view of the Second Amendment.

Bottom line:

1.   Right to own guns is not limited to military use.

2.   Right historically extends to guns commonly used for lawful purpose, including hunting and self-defense, but does not extend to “dangerous” or “unusual” weapons or to all purposes.

3.   Trigger lock requirement that effectively disables guns unconstitutionally burdens the right to use guns for self-defense.

4.   Leaves open the application to state laws through the 14th Amendment, but strongly hints that this right limits the states, as well, in light of the 14th Amendment’s history and application of other Bill of Rights provisions to the states.

5.   Leaves open the level of scrutiny to be applied to restrictions on the right, but suggests a high burden on government to show need to limit gun ownership.

6.   Strongly suggests that traditional bans on felon-in-possession, commercial gun sale regulation, concealed weapons laws, and restrictions on carrying in schools and government offices would be constitutional.

7.   Does not resolve the right to carry in public or in cars for self-defense.

As usual, the devil will be in the details as further litigation refines these issues.  It’s a victory for individual freedom at the broad level of the affirmance of the individual right to own guns. But the Court’s cautious tone leaves the door open to plenty of regulation and, at least sometimes, prohibition of that right.  The whole “assault weapons” issue is not addressed.  Such an approach of reaching a superficially broad result, with the real scope to be determined through future cases, is not uncommon.  For example, I read the Guantanamo cases the same way. The tone there was broad, but that doesn’t necessarily foretell exactly what procedures will meet constitutional demands. 

The Court’s tone here, then, was driven in part by general institutional reluctance (not always evident) to avoid deciding issues not necessary to the outcome. That contributes to the gradual and incremental nature of most constitutional evolution. It is the right way to go as a general rule. In part, the very cautious tone here may also be due to the desire to have a clear majority on such a contentious issue that is being clearly addressed for the first time.  If I had to point a finger at someone, it would be (you guessed it) Justice Kennedy.  During oral argument, Kennedy was emphatic that the Second Amendment protected an individual right, but he may well have been reluctant to go beyond that.  So the pressure was on the writer, Justice Scalia, to go as far as he could without risking that Kennedy (or, less likely, someone else) would defect and leave only a plurality prevailing opinion on the constitutional issues.

We read a lot about how terrible conditions are at Guantanamo and how poorly those rights-deprived detainees are treated.  Usually those reports quote professors and attorneys for the detainees (sometimes one-and-the-same). Finally, a report from a prosecutor. I have gathered the occasional similar article over the years, but generally the press coverage has been to look in sympathy at the detainees. There is another side to the story, though, and it needs to be heard.

I have posted about the Cheshire Cat news coverage of the Iraq War before.  The better things get, the less coverage there is. While we can still see a bare outline, perhaps soon it will be gone entirely. Powerline cites to a New York Times article that has some concrete figures on this phenomenon.  Some journalists are concerned about this failure of journalistic responsibility, probably for economic reasons but maybe for reasons of presenting a full and fair picture, as well. Particularly intriguing is the speculation that first hand coverage of Iraq by news organizations through bureaus in the country will cease after the election. It just couldn’t be that the election and attitudes toward the Bush administration have anything to do with the “importance” of the Iraq War, could it?

Along similar lines comes this report about Anbar province.  This, the “worst” of all Iraqi provinces is sufficiently secure to be turned over to Iraqi control. How much press time and “talking head” attention will this get? Will Harry Reid and Barack Obama, Nancy Pelosi and Jack Murtha be holding forth on the failures of Al Qaeda’s Iraq policy? Will the Lakers be NBA champs this year (or the Clippers ever)? I didn’t think so.

The Supreme Court today decided that the death penalty is unconstitutional as a cruel and unusual punishment for child rape in which death does not result, no matter how often the rapes occurred, how young the victim was, how many victims there were, what the extent of the physical emotional injuries were, or what the rapist’s prior criminal history was. It is another Kennedy opinion.  You know where this is going.

As a matter of public policy, I do not believe the death penalty to be appropriate for non-murder offenses. I have two reasons. One, I believe that the death penalty has a value as both a specific and a general deterrent for many, though not all, crimes.  If a sudden knife fight in a bar resulted in a death, I don’t believe that the death penalty for such a homicide would have deterred the particular combatants, though, arguably, it might make people in general more reluctant to bring their weapons in the first place. However, a rape (as in the case here), especially of an eight-year-old, is not a sudden hot-headed event. I am concerned that imposing the death penalty for the rape is likely to increase the chance that the rapist will then kill the victim, whereas limiting the death penalty to murder may make the rapist more inclined to let the girl live.  I think that this danger outweighs any salutary deterrent effect the death penalty would have on the commission of child rape. I admit that this is not the kind of thing that is easily confirmable by statistics, so I am basing this on an assumption of rationality in criminal behavior that I believe exists, but which assumption may be misplaced.

Two, I believe as a matter of policy and ethics that the death penalty can be a proper form of retribution, whether under an Old Testament justification or under a more secular and metaphysical Kantian conception. Retribution must be left for a crime of similar type as the death penalty, that is, the taking of another’s life. As the Court has noted in the earlier Coker case, while rape is emotionally and physically traumatic, it does not end one’s life.  One can hold out the hope of recovery. Homicide is qualitatively different than other offenses. I agree that child rape makes the trauma perhaps worse than if it were an adult (although, on the other hand, kids often seem to have more resilience and better ability to cope with problems than adults). So, the retribution argument in favor of the death penalty on a non-Kantian, utilitarian basis (emotional closure for the victim, preventing lynch mob justice, and such) may be particularly strong here for a non-homicide crime, more so than even for adult rape or aggravated robbery. But I still believe that, on balance, the death penalty would be excessive under an ethics-based retribution theory. I will readily agree, however, that this is a close case, and that reasonable people may differ.

That said, from a purely emotional reaction, I can think of a few things I’d like to have happen to this rapist, more robust than the Court’s anodyne suggestion to confine him so ”the system will find ways to allow him to understand the enormity of his offense.” Yes, that really is what the Court said.  It’s a Kennedy opinion, remember. Perhaps the state can let the word out to the prison population what this guy’s offense is and then leave his cell door and that of some others unlocked at night. Or, along Kantian lines, we could tie him down and let the biggest and most hirsute Bubbas in the prison have a go at him repeatedly so as to produce similar injuries. But that’s an emotional reaction, and certainly not the basis of an ethical jurisprudence of punishment.

The Court mentions the same concerns about the death penalty as I do. But as I wrote earlier, these are policy considerations. It is the Court’s role to decide constitutional issues, not policy issues. So, Justice Kennedy’s discussion of the death penalty’s deterrence efficiency and its retributive qualities seems constitutionally inappropriate to me.

On the strictly constitutional side, Kennedy refers to “evolving standards of decency that mark the progress of a maturing society” to determine whether the death penalty is cruel and unusual. Let us leave aside the justified criticisms leveled at the indeterminacy of that test and its relevance to the correct interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court has referred to the development of a national consensus in regards to the particular application of the death penalty as the appropriate test of the contemporaneous standards of decency. As I see it, the problem with this test is that the Court’s application of it makes it doubtful that the standards of decency can also evolve in the direction of recognizing the needs for justice of crime victims and society at large, rather than just in the direction of protecting the criminal. Previous opinions have specifically said that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling states from giving effect to altered beliefs and responding to changed social conditions.”

But the Court’s application of the test give the lie to its theory. By the Court’s prior precedents that progressively have curtailed the use of the death penalty, the Court has sent a message. Dictum from the Coker precedent that held the death penalty for adult rape to be unconstitutional strongly implied that the death penalty could not apply to any non-homicide crime.  I think the key to the opinion is the very last page: 

Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

The Court’s evolving standards of decency test provides a deviously effective cover of constitutional “law” for the Court’s project.  The dissent focuses on this problem: Once the Supreme Court speaks, how can enough states pass laws of the type that the Supreme Court has struck down, or is likely to strike down based on precedent?  That simply isn’t how the political system works.  Dozens of states aren’t going to pass laws if the effort is likely to be hopeless under existing precedent.  Any state that takes the plunge is quickly going to find its innovation challenged, and the Court will strike it down as not reflecting an “evolving consensus.”

In its effect, then, this is an insoluble problem for democratic constitutionalism.  If the Court sees itself as entitled to act as a roving constitutional convention under an amorphous “evolving consensus of decency” standard, the consensus, and the constitutional law reflected thereby, will be frozen in place by the first case that takes exception to the particular application of the death penalty to that type of crime. The Court’s disingenuous attempt to respond on the last page falls short of the mark. The “evolving decency” standard has the veneer of flexibility, adaptability, and reasonableness—a “living Constitution,” if you will. But the judicial manifestation of this test operates in just the opposite manner and prevents democratic adaptation of policy to society’s actual changing standards (except in the Court’s foreordained direction).  The opinion, viewed through this prism of constitutional adaptability, is of the same tone and raises the same problems as other cases decided on vague standards that define judicially-created “rights.”  Two cases come to mind immediately, the abortion case (Planned Parenthood v. Casey) and the sodomy case (Lawrence v. Texas).  It comes as no surprise that Justice Kennedy had a role in writing both opinions.

From Canada\’s National Post comes this review of an exhibition at the Canadian War Museum.  The exhibition details the connection between socialism and eugenics.  Even then, committed socialists were elitists.  Of particular interest is the quote from H.G. Wells.  Talk about a “war of the worlds.” As an aside, Wells’s own book The Time Machine seems to me to refute his position.  The effete upper-class Eloi, unable to fend for themselves and dependent on the efforts of others for their sustenance, resemble nothing so much as the elite from which the socialists are drawn, while the brutal, but productive Morlocks resemble the church-going “inferior” (to the socialists) general population. Wells’s prescriptions are right out of the Left’s reading of Plato’s Republic. What the Left forgets is that The Republic is a deep and multi-layered work.  One layer is a warning about the dangers and totalitarian tendencies of eutopian schemes to remake society, a warning not heeded by the socialists of the 20th century and not likely to be heeded by the current crop. Anti-religious measures, forced abortions, collective raising of children (because “it takes a village”?) and redefinition of the family all are or have been on the socialist table as plausible social policies.

With the courts, state and federal, more and more deciding fundamental political issues through exercises in constitutional creative writing; with the massive growth of bureaucracies over the past two generations; and with more and more power going to unaccountable and unelected transnational political bodies such as that cesspool of corruption and inefficiency, the U.N. kleptocracy, I have long had a feeling of unease about the future of democratic self-government in even a modest form.  Now comes the example of the European Union.  When their previous attempts at a European “constitution” foundered because of rejection by the French(!) and Dutch electorates, the EUnuchs at Brussels headquarters tried again.  This time they decided that ratification would proceed through Parliaments that could more easily be “persuaded” to surrender local control and liberty to a centralized bureaucracy.  Ireland, though, insisted on a popular vote before it would sign on.  Despite overwhelming support from the dominant political parties and various private organizations in Ireland, and despite (?) European pressure, the Irish people saw through the blarney and rejected the treaty.  So now the EUnuchs are insisting on a vote by the Irish Parliament and threatening Ireland to knuckle under and join.  As an aside, this situation reminds me uncomfortably of how the United States under the new constitution in 1790 cajoled and threatened Rhode Island, which had declined even to attend the Philadelphia Convention, much less ratify the Constitution.

Here is an article by Tony Blankley that makes my concerned musings appear positively pollyanna-ish.  He raises the point that, contrary to our optimism of twenty years ago, perhaps the idea of democracy has passed, a Western political movement over a half-millennium that is being consigned to the ash-heap of history.  Democracy’s moment has passed after contributing to the achievement of singular success in promoting freedom and prosperity. He worries that the true state of existence for most people is in a kind of tutelage by, and submission to, dominant groups.  When one sees that most people’s concern is focused on bread and circuses material benefits (what can my employer, the government, etc. provide for me?) and entertainment (what’s the score in the game?), one understands his point.  If the wheel has turned and time for democracy is past, worries about this or that Supreme Court decision are like spitting into the tide.  The problem we face is of a different order of magnitude.  Though I have no illusions about the systemic problems associated with democracy, I hope Blankley is wrong about its twilight.

Another cherished myth of the politically correct cognoscenti is that of the American Indian as ecologically sensitive.  This is a story held onto with the same child-like faith and devotion as most 5-year-olds bring to the appearance of the Easter Bunny.  Yet it is complete buffalo scat. Through the years, I have run across a couple of stories debunking this nonsense.  Here is another.

Over the course of American history, we have had a schizophrenic view of the aboriginal inhabitants.  On the one hand, they are the “merciless Indian savages” Jefferson described in the Declaration of Independence. On the other hand, they are the noble “men of nature” who issue philosophical profundities with an intellectual depth and soaring rhetoric, all the while exhibiting a child-like naivete and sensitive, yet manly, character.  In other words, they come across like the Indians found on (and between) the covers of women’s pulp romance stories formerly found in display cases next to supermarket checkout lines, but with the intellect of Kant Obama and the rhetorical prowess of Cicero Obama.  And, at times, they have been pictured as both archetypes, as in James Fenimore Cooper’s Leatherstocking Tales.  Given the multiculti identity group mania of the last three decades, and the desire of many vanilla White persons to associate, at least vicariously, with someone “of color,” we are in the midst of a “noble savage” revival. Reading a column such as Medved’s is a refreshing change of pace from this cloying aspect of political correctness.

Harvard University professor of government and politics Harvey Mansfield on liberal uniformity among the faculty at Harvard.  As one might expect of this bane of modern feminism, he mostly blames that ideology for the attitude of political intolerance towards dissenting views.  I think he overstates his case on that point.  Surely, feminism as it has mutated in the last generation has much to answer for in social dislocation and dysfunction.  But it hardly stands alone.  There is a much broader current of intolerance founded in Marxism, especially a kind of Maoist version, that seeps through campus life.  Feminism is just one manifestation of this.  Modern liberalism, broadly speaking, is its ideological incarnation, which is why I also disagree with Mansfield’s view that liberalism is founded in liberty.  As classically understood, that is true, but current campus “liberals” are much more the heirs of Karl Marx, Georges Sorel, and Antonio Gramsci, than of Thomas Paine or John Stuart Mill, never mind of Ludwig von Mises or Robert Nozick.  Mansfield is certainly correct in describing multiculturalism as a strange blend of relativism and moralism. If anything, he understates the problem posed by the modern academy’s wholesale acceptance of the irrelevance, if not malignancy, of standards and Truths. My colleagues get annoyed with me when I bring this up, though they do not generally try to disprove what I say.  They claim that there is nothing they can do about the ideological conformity.  As Mansfield suggests, maybe they should begin by shedding their personal intolerance of opposing intellectual views.

The Supreme Court\’s upcoming decisions.  This week likely will see the announcement of the Court’s remaining 2007-2008 Term cases.  The big one for me is the D.C. gun ban, the Heller case.  The betting is that the law will be found unconstitutional as violating an individual’s right to own guns. The real speculation is about who will write the opinion.  If it is Justice Scalia, as many believe, it might be a plurality opinion on the specific holding. If the Chief Justice keeps the opinion for himself, it may be somewhat less expansive, but is more likely to include a majority.

The California Supreme Court’s same-sex marriage decision redefined marriage as simply reflecting a deep personal bond.  No sex required, let alone children.  I have posted about the conceptual and practical problems that will come from this redefinition, unless the court is as unprincipled about applying its own precedent there as it was in concocting a right to same-sex marriage.  Why shouldn’t any number of folks share that bond with each other?  Why shouldn’t very close relatives share that bond? Heck, we increasingly give legal significance to the view that pets are not really property because of the deep bond of affection that often exists between human animal and non-human animal.

So, here comes the New Jersey Supreme Court in another bout of judicial wackiness.  Henceforth, there is not even a need to cohabit together as if you were married to collect support under an implied contract-type “palimony” claim.  All that is needed is to show a “marital-type relationship” based, presumably, on a deep personal bond. Let’s see, I can be married to someone whom I am obligated to support, but with whom I need not cohabitate, have children, or have (or ever have had) sex.  Contemporaneously, I can have a marital-type relationship (no children, no sex, and, now, no cohabitation) with another person or, I would have to assume, persons, and I may have an obligation to support him or her.  So, I have all the obligations of a polygamous spouse, and I may not even be enjoying the usual perks of such a relationship (sex, cohabitation, children) beyond, again, a deep personal bond.  Of course, in the California view, if a relationship is like a marriage, then it must be recognized as such.  That was the core of their opinion.  Ergo, polygamous marriages must be recognized, but, according to the New Jersey court’s reasoning, on a case by case basis and only if that particular arrangement was “marriage-like.”  That should introduce clarity and predictability, right?  Do we really want more family law situations that have to be resolved by courts in an ad hoc manner?

I’m not entirely sure what to make of this, though.  The whole trend looks like yet another manifestation of flaky feminism’s ideal opposite-sex couple: No need to have sex with him; no need to have children with him; no need even to live with him and have him insist on putting a Barcalounger in front of the wide-screen TV in the living room; you just have to be able to persuade a court that you have an emotional connection with him, and that he promised to support you financially for the rest of your life in return for basking in the glow of your emotional bond.  Or, and I know this seems far-fetched, is this part of some clever judicially-crafted plan to shift public welfare costs onto working men?

See here for an additional thought.

Obama believes that the only way to reduce the price of oil is to reduce demand. He has also said that, instead of funding the Iraq War, the government could have spent a quarter trillion dollars and developed a whole new type engine.  Well, it looks like a 19-year-old already has the solution.  I can just see thousands of these things during rush hour on the 101 Freeway in between trucks and the mass of public transportation vehicles envisioned by enviros.

A month ago, I posted my thoughts about what participants in graduation ceremonies should, and should not, do. To graduation speakers, I suggested that they be brief, dignified, and deftly humorous, and that they avoid controversial topics such as politics. I based those comments on my experience of having sat through many hours of graduation ceremonies. Well, judging by what happened this weekend, it seems that there is another piece of advice I should have given. But I just didn’t think of it.  Imagine.

My eldest son, Christopher, graduated Sunday from Revelle College at UC San Diego. It was a beautiful late afternoon in La Jolla, California.  The arena was rather less beautiful, an athletic field surrounded by construction equipment.  The University’s and California’s much-lamented budget crises that are blamed for several years of unusually high fee increases seem to be phantasms, if judged by the amount of new and ongoing construction.

Anyway, the pomp and circumstance of the ceremony was expected to be enhanced by the graduation speaker, Visiting Assistant Professor Amanda Roberts, from the Psychology Department.  Apparently, she has been visiting for a long time under what appears to be a kind of “adjunct” professorship with the nearby Scripps Research Institute.  Prof. Roberts intimated as much by mentioning that she has a “day job” (not the UCSD position). This disclaimer (or boast) caused me to wonder why she would be selected by the students as their graduation speaker.  Things would soon become clear in that regard.

An audience of several thousand parents, grandparents, siblings, small children, other relatives and friends, and a couple of small lapdogs (not a reference to my school’s “Dean’s Council” professors) were present for the festivities. When Prof. Roberts’s speech began, those present seemed in a kind of suspended state waiting for the time when “their” graduate would have his or her 2.5 seconds between names to cross the stage.  One expected the usual vague testimonials to the achievement of the students in surviving four or more years of dorm food, registration frustration, and re-education seminars in political correctness (Yes, I know the speaker wouldn’t say that last one). The speaker likely would offer some gently uplifting admonitions about the importance of making friends and a commitment to humanity rather than just making a lot of money. Since this is an elite university, perhaps there would be references to Shakespeare or Buddha. Or, more likely, to Foucault or Maya Angelou. Since this was a “science” school, there might be a quotation from a philosopher of science, such as Karl Popper, or a famous scientist, such as James Watson or Francis Crick. Since she is a psychologist, perhaps there would be something about the theories of learning of Plato, Descartes, and Locke.  Or, some bon mot from Sigmund Freud or Carl Jung. If that’s what you expected, you obviously do not know (Long-time) Visiting Assistant Professor Amanda Roberts.

No, ma’am. Professor Roberts (may I call her “Amanda”?) instead showed how ”kewl” she was by basically recounting her experience teaching what appeared to be a sex education course and what she learned from her students. I didn’t get the exact name of the course, as I was tuning her out until I thought I heard repeated references to “vagina.” This not being a word I remember from reading Popper, Plato, et al., nor a word I can say ever to have heard in a graduation ceremony, my interest perked up considerably. So, for example, she mentioned how the class had taught her about the song “My Vagina,” which is sure to become a camp fire favorite at Grrrl Scout gatherings.

Amanda is really “down with” her students. She regaled the audience with her interesting lab assignments, such as the one where each student went home and measured a component of his/her genitalia to determine which side hung lower, the left or the right. It turns out, she concluded, that the outcome does not correlate to which hand one, ahh, favors. Does someone have the phone number of the Nobel Prize foundation?

And who says that egghead college professors don’t teach anything practical? Amanda warned us not to blow air into a vagina. Well, shoot, there goes the plan for my next birthday party. It’s back to the boring balloons, then.

For those of you planning to fly abroad (oh, stop it) despite the weak dollar, Amanda recommends the “penis festival” in Japan. Given Japan’s aging population, it might be said that the penis festival has been shrinking, so they can use a larger American presence to firm up attendance. I’ll stop with that one now.

Part of what makes Amanda such a classroom hit, apparently, is what she proudly proclaims is her frequent in-class recounting of her ex-husband’s “embarrassing” sexual practices. I haven’t tried an analogous tactic yet as a teaching tool, but maybe I should use it during my next business law course to discuss unsuccessful mergers or unwanted tender offers. According to postings on the UCSD lesbian, gay, bisexual, and transgendered (yes, that’s what it means) student group website, and according to a newspaper article I found, Amanda is heavily involved with the student LGBT group.  In fact she now enjoys life with her two children and her domestic partner. I wonder whether the ex-husband and his sex practices caused her to turn to the domestic partner, or whether the domestic partner caused there to be an ex-husband.

Amanda prides herself on her cultural curiosity and broadmindedness, having queried her students about their background cultures’ courtship, sexual, and child-raising practices. In light of her cosmopolitan attitude, how could she not anticipate what effect this Jerry Springer Show-throwback of a speech would have on the listeners of all backgrounds, but particularly, say, on recent arrivals of Middle Eastern or Asian ancestry? As it was, we noticed at least one nearby family with children leaving because of the speech.  My wife kept trying to distract our 7-year-old daughter from the words, though, to our relief, our daughter seemed to be more focused on counting the number of times Amanda uttered “Okay.” In oratorical delivery, Amanda favors South Park’s Mr. Mackey’s okay-style more than she does Patrick Henry’s firebrand-style or Abraham Lincoln’s reverential-style.

I have related here only some of the trove of information and useful learning conveyed by Amanda of what really amounts to a collection of her teaching notes. But one can see what makes her class so popular. Having the hottie from the Tri-Delts help you calibrate what Austin Powers referred to as your “naughty bits” has to be more ontologically rewarding in an immediate sense than writing a paper on the Pre-Socratics’ theories of change and constancy, or of having to do the chromatography lab for the third afternoon because the first result suggested a fuel additive in methanol and the second suggested Wild Turkey on ice. While I can think of a ribald comment or two, what any of her remarks have to do with graduation I cannot say. So, as another piece of advice to graduation speakers, I will add this:

What happens in the sex education class, stays in the sex education class. Don’t validate every (false) stereotype about college education in front of those who have just spent tens of thousands of dollars to help pay your salary. And, especially if you’re speaking at a UC San Diego graduation, don’t make people wonder whether they’ve gone to the San Diego State University graduation by mistake.

NOTE: If you think the title to the post is a risque parody, see this reference.

UPDATE:  My wife emailed the provost of Revelle College to register her indignation at the speech.  The provost quickly emailed her back (and it appears to be a personal response) that others had expressed similar sentiments, and that both he and the chancellor were appalled at what had happened.

Departments of Ethnic Studies Grievances are known as centers for the assigning of easy grades and the promotion of self-esteem for members of their groups.  The case of one intellectually courageous (liberal) professor to take on the Wellesley College franchise is detailed in this article by George Leef.

Just wait until our human rights professionals get wind of this decision by British courts.  They will have to stop gloating about getting the Supreme Court to overrule centuries of precedent in habeas corpus law and about frustrating U.S. efforts to deal with enemy combatants. They have been outdone by their English counterparts.  How long before American lawyers demand not just release, but asylum for their clients, plus welfare and special police protection? Five-four-three….

Numerous times over the past four years I have heard the differences between the parties explained as “the stupid party” (Republicans) and the “insane party” (Democrats).  In 2004, the former won, in 2006 the latter.  The latter looks poised to win in 2008, having become even more insane. This is a powerfully written article on the danger to the United States from the leftward plunge of the Democratic Party and the failure of the Republicans to offer a strong alternative. The author blames the current political problems on the Democrats’ willingness to plumb the depths of political divisiveness in the middle of a war, all for political advantage.  They knew in 2003 that Republican success in Iraq would insure GOP political dominance for at least a decade.  So they and their media allies had to do everything possible to undercut that for their own survival, even if it meant distorting facts and placing American soldiers in jeopardy because the terrorists falsely believed the press reporting that the U.S. was losing in Iraq.  The Democrats lied; soldiers died.  But he also blames the ineptness of the President and the Republicans in general in being politically tone-deaf.  The President’s apparent inability to go on the stump in favor of the war and to maintain the people’s focus with patriotic oratory has been mystifying.  When he roused himself to do so on occasion, polls showed an increase in popular support of him and his Iraq policy as a result.  But, too often, the President engaged in a Rose Garden campaign of meaningless homilies delivered with botched syntax in a soporific tone.  So there is plenty of blame to go around, from the Democrats’ cravenness to the Republicans’ obtuseness.

I do not agree with some of his overly-harsh characterizations of the Democrats and their motives.  Words like “disloyal opposition” and “treachery” ought to be used with much more care and discretion. But, in general and discounting the loaded adjectives and nouns, I think this is a remarkably good analysis.

On November 19, 2005, a roadside bomb planted by “insurgents” killed a U.S. Marine and wounded two others in Haditha, Iraq.  At least one group of Marines began shooting at men in a taxi and throwing grenades and spraying gunfire into three houses.  After the shooting stopped, there were allegations that several Marines had murdered 24 innocent Iraqi civilians in cold blood and that there had been command failure and cover-ups by superiors in reporting and investigating the matter, among other things.

The matter initially was investigated internally and probably would have ended there.  The Marines concluded that 8 of the dead were insurgents and that the other 15, mainly women and children, had been killed by the roadside bomb. However, as a result of video provided by the founder of an Iraqi “human rights” group, a reporter for Time magazine, Tim McGirk, kept the story alive by challenging the Marines’ version that the civilians had died as a result of a bomb.  Instead, McGirk’s approach strongly suggested that the Marines had simply shot the civilians.  Anti-war Rep. John Murtha (D-Pa) of Abscam scandal fame accused the Marines of killing in cold blood.  The subsequent internal investigation eventually concluded that 15 civilians were killed negligently by U.S. Marines (presumably in clearing the houses with grenades and close-in gun fire).  Later, the investigation determined that all 24 Iraqis were unarmed.

The story soon developed into the Iraq War version of the My Lai massacre from Vietnam War days. The media, including The Washington Post on May 27, 2006, basically swallowed the story of the Marines’ guilt hook, line, and sinker.  The ever-restrained Sidney Blumenthal (the Clintons’ most determined attack terrier) in Salon and the equally restrained John Dickerson and Dahlia Lithwick of Slate crowed about this black eye to the American military and the Bush administration.  The latter mockingly demanded that the Marines be turned over to the Iraqis for “justice.”  Like many liberals, they probably profess “support the troops, bring them home” sentiments.  But they can’t disguise their contempt for the soldiers.  Would they demand that the people at Guantanamo be turned over, say, to the Afghan government or to the Egyptians for “handling,” or would they claim that to be a grave human rights violation?  But that’s OK if it involves American military. As a result of this pressure, eight Marines were charged with various crimes, including first-degree murder.

Bloggers, including milbloggers, found holes in the story as told by the accusers and believed the claims of the men that, far from having killed anyone in cold blood, they believed themselves to be under attack and were operating according to their training for such situations. Here’s an account from June, 2006, that details the media’s one-sided coverage of the event and its position that the Marines’ guilt was a foregone conclusion.  The Marines’ own individual stories regarding small arms fire coming at them from houses were remarkably consistent, and the squad on the ground had informed their superiors on the day of the shootings how the civilians died.

Then there is this report that shows that al Qaeda in Iraq, together with local insurgents planned the whole attack as a propaganda incident to draw the Marines into this trap and video recorded it. The Marines had the signal intercepts to back up the story.  The story contains a link to a report the Marines prepared analyzing this.  Of course, this development didn’t make it into the media.

The Time reporter who started this has declined to testify at the hearings.

Then there is this internal investigative report (the Watt Report) from March, 2006, that concludes that the Marines were not cold-blooded killers and that the fault lay with insurgents fighting from houses occupied by civilians.  See the findings beginning on page 3.

Eventually, the cases against the 8 charged Marines began to fall apart.  The testimony against them was insufficient.  Such evidence as there was tended to corroborate their account.  There was, however, evidence of undue command influence in seeking to have the trials go forward. As of now, charges against 7 of the 8 have been dismissed or they have been cleared of the charges.  The eighth, the squad leader that day, has had his trial postponed indefinitely.  This is despite the military’s increasing use of immunities in the case to try to get someone, anyone.

The latest dismissal involves the charges against Lt.Col. Jeffrey Chessani, the commander of the Marines.  The charges were dismissed without prejudice, on the grounds of improper command influence by the general in charge of the investigation. Here is a synopsis from Chessani\’s attorneys at the Thomas More Law Center. Note the colonel’s qualifications. He apparently was a particularly good anti-insurgency officer.  By this propaganda coup and the media’s credulousness, the insurgents were able to remove him from the theater of war.  Here is another post describing the dismissal of charges and the background of the case.

I don’t know what happened there.  Maybe the Marines acted in good faith but with too much force, not, probably, as Rep. Murtha would have it, for lack of discipline, but because they acted as they were trained.  These kinds of things always happen in war, particularly if the enemy violates the laws of war by hiding behind civilians.  That’s why the laws of war are not intended to protect them (please note, Justice Kennedy). That is a regrettable consequence of war and to be avoided if possible.  What is telling to me, though, is the initial, knee-jerk reaction by the media who fell all over this story and covered it sensationalistically in a way they wouldn’t for real and intentional atrocities committed by the enemy.  They also presumed the guilt and dishonor of these Marines and, by extension, indicted the war effort in their coverage.  That is disreputable, but expected.

UPDATE: The prosecution will appeal the dismissal of the charges against Lt.Col. Chessani.  The author of the post quotes Chessani’s attorney’s view that the appeal will fail and notes further that a similar motion to dismiss will be made by the last charged Marine.

First comes the U.S. Supreme Court’s Guantanamo detainee decision. Next, and not to be outdone, comes a Canadian judge with a decision freeing this detainee.  How long before the internationalists on the U.S. Supreme Court agree that American children deserve the same rights under some penumbra of our Constitution as are recognized by the great Dominion of the North? Perhaps Justice Kennedy can concoct a “functional test” related to the “right to travel” that the Court has discovered. Indeed, if foreign terrorists trying to kill us, and captured and held outside the U.S., enjoy the protections of the Great Writ of habeas corpus, how much stronger is the case for little domestic terrorizers just trying to annoy us, and captured and held within our very houses?

My wife and I decided that we needed a new commuter car, now that a gallon of gasoline costs about as much as a triple venti low fat latte with extra foam.  Problem is that one cannot just go into the dealership and expect to get charged the same price for the same product by the same tattooed seller, as happens at every Morebucks. Instead, there is the de rigeur stereotype of car salesmen as slippery, ethically-challenged mountebanks ready to sell you a molehill as the Taj Mahal.  No, wait, those are real estate brokers.  My mistake. But you know what I mean.

Going into a car dealership requires the planning of a military strike.  The enemy—just kidding, make that the dealer—has a tactical asset that you need to acquire as part of your bigger strategy of avoiding “insolvency through commuting.”  But he won’t give up that asset without making you pay dearly.  He has arrayed his fanatical mercenaries against you.  There is the initial trooper guarding the entry doors whose eyes quickly size up your potential fighting ability. This warrior begins to soften you up with a barrage of questions to pin you down and limit your maneuverability in securing the asset.  Through various feints, he then attempts to divert you from your goal to a different asset that he is willing to surrender, but which is of less use to you or at least will cause you to expend more resources.

Should you exhaust the fighting ability of this soldier, he will quickly be reinforced by the more experienced professional “closer.”  This battle-scarred fighter has been trained to anticipate and counteract all your maneuvers to capture the asset on your terms.  As you skirmish in face-to-face combat, he will use his years of experience to turn the force of your own probes and movements about price, trade-in value, and financing against you like the car-a-te master that he is.

Then, to distract you during a lull in the struggle there is the Mata Hari from customer service who, wearing high heels and a tight blouse and skirt, offers you water with an expression of faux concern.  She has noticed the perspiration stains under your armpits as much as you have. You must resist her blandishments and not betray your battle fatigue further.

Finally, there is the suave but fiendishly brilliant finance advisor with his arsenal of multiple state-of-the-art warranty and insurance offers.  Each of these is a brutally efficient weapon designed to make you bleed your limited resources even after you have captured the asset.

Knowing the odds that you face, you must prepare.  Without relentless preparation, your mission will be like the charge of the Light Brigade at Balaclava, especially if you go in there wearing a cardigan (little historical humor).  After all, the dealer has the car and determines under what terms he will part with it. The key here is information.

There are valuable sources of information.  First, there is the high-tech approach.  I searched the internet, looking at the Kelley Blue Book website, the websites of Toyota, Ford, Nissan, Chevrolet, and Honda, and a website with listings of late-model used cars available within 30 miles of my house.  I tentatively decided on a Porsche 911 Carrera as the most suitable asset. Just joking.  Acquiring that car would require me to sacrifice several offspring, and, after long deliberation, I decided that I wasn’t willing to pay that price—yet. I settled on the Corolla.

I then talked to an acquaintance who works car auctions.  He is normally an auxiliary of the enemy and works in close coordination with them.  He has a keen knowledge of the locations of potential assets. Would he be able to use his connections to scout out a vulnerable target or perhaps even be able to produce a mutually-agreeable peaceable surrender of such an asset?  After talking to his own sources, he had bad news.  Though he was willing to switch sides and work against his usual allies, the limited number of low-mileage, late-model assets caused the dealers to protect them ferociously.  Acquiring such an asset would still require a large commitment of funds.  My agent decided that he would not be much help and recommended that I strike out on my own to acquire a new model Corolla.  Paradoxically, if I were careful and prepared enough, I might be able to acquire such an asset for little more than what would be needed for a late-model used asset.

I was skeptical and assumed that he just could not break his loyalty to the enemy, not even for cash. Nevertheless, I decided to test his assertion. This time, I went low-tech.  The most low-tech source of information I know is The Los Angeles Times.  It turned out that many of the dealers were advertising new 2009 Corollas at prices comparable to what I had run across for late-model, low-mileage used Corollas. The enemy was flaunting the ease with which such an asset could be acquired.  They were taunting me to come in and try to capture one.  Indeed, each tried to get me to do a headlong frontal dash to his redoubt with the challenge “Only 1 [or 2, 3, or 4] available at this price.”

All successful military campaigns require boots on the ground. Internet searches and telephone calls would not be enough. So I collected these notices from several of the enemy and set out Sunday morning.  The first stop was DCH Toyota in Simi Valley, which had proclaimed it had 3 assets at that price.  As I feared, the notice was a clever ruse. The trooper guarding the front door informed me that there were no more such assets.  With easy disdain, Kabir repulsed my pitiful efforts and declared that the notice had appeared on Friday.  I was too late.  He tried to lure me to “the back” where there were more such assets.  But, to capture one of them I would have to expend more resources than I had available.  I resisted his attempt to draw me into a field position more favorable to him.  Instead, I undertook a tactical retreat from the theater of operation.

The next location of a suitable asset was Toyota of Northridge, which also claimed to have three of them available.  Ostentatiously brandishing my most powerful weapons, the notices from the various dealers, I opted for a frontal assault on the enemy.  Surreptitiously scouting the displayed assets and waiting for the enemy fighters to approach me made no sense here.  Let’s get this over with quickly, in victory or defeat.  I strode up to the enemy fighter, whose name tag revealed him as “Dan.”

Upon hearing my challenge, Dan checked with his superiors. He informed me that there indeed was one such asset available.  I confidently expected that the asset would be the one with the Dijon mustard-colored exterior and the Highlander tartan-patterned interior. To my surprise it was a nice-looking sea-green one with a beige interior.  OK, it must be one of those that is used as a demo model.  Actually, it had only 1 mile on the odometer.  The enemy’s tactics were disorienting me.  I was making the classic mistake of militaries, namely, fighting this war by the last war’s methods.

After the necessary test drive found the model to be eminently suited to my needs, the struggle moved to the room where the expected face-to-face combat would arise. Sure enough, the closer arrived. But all he did was take information for down payment (he wanted 20%) and financing (he offered 7% and 4 years).  I wanted 0% down and 6% for 5 years. OK, the struggle was on—for about 5 minutes while a credit check was done. I got the terms I wanted, except for the interest rate. He assured me I could prepay if I got a better rate somewhere else. While I think that I probably could have got 6% at my credit union, the difference of $7 per month was not worth my time.

I was going through the enemy ranks without breaking a sweat.  So when Mata Hari asked the question about the water, I had my guard down enough to agree.  I was so relaxed I didn’t even notice whether her open-cuff white blouse and above-the-knee black pencil skirt were tight, and whether they matched her 3 1/2 inch-heel black stiletto open-toed pumps. Really, I couldn’t tell you.

I knew I had made a mistake because I was soon ushered into the domain of the finance advisor.  This is where the mother of all battles would be fought.  This would be my Salamis, Lepanto, Yorktown, and the Bulge rolled into one. Sure enough, here came the list of add-ons, the warranties, extended and new, the insurance offers, and more.  I turned in full battle-mode and said boldly, “No, thank you.” He replied, “Then please initial here and sign here.”  What? That’s it? No doomsday scenarios about how terrible the car is and how inadequate the manufacturer’s warranty?

It was done, except for the washing and cleaning of the car plus the full tank of gas they provided.  Oh, and the three different “thank yous” from Dan and the closer.  Since then, I have received two phone calls and one letter asking how I liked my asset and whether I was pleased with the manner of acquisition. This is not the enemy I expected. Northridge Toyota must be a particularly devious foe, making the car buying experience, dare I say it, appear enjoyable.  I need to acquire another such asset in the next year or so.  I’ll have to be careful not to fight that war based on my experience in this one.

This news item about the sisterhood of the stretch-panel pants has puzzled the nation. Assuming that the story is reported accurately, why exactly would this be puzzling? First, in a nation of 300 million, a large percentage of whose adults seem to be engaged in some effort to make themselves look cool well short of their years, there are going to be some who do things that strike the others as odd (perhaps because the latter didn’t think of doing that first). And at least a few are unable to get 15 minutes of fame and an audience by appearing in a “reality TV” show. Teenagers emulate the example of adults, and these kids have made a name of sorts for themselves.  At least they didn’t start shooting people.  A little less public narcissism as a cultural attribute of contemporary adults would be a welcome start in setting proper standards for children.

Second, the problem here has less to do with teen pregnancy than with single parenthood. Teen pregnancy is not unknown as a historical practice.  While it is certainly not desirable in our social and economic system, the very real problems associated with it would be far less daunting if the pregnancy occurred within a stable two-parent relationship.  I agree that often there is little that is “stable” in teenagers, but cultural standards can nudge even teens in appropriate directions. In prior generations there were stronger social, religious, and cultural forces that exerted pressure against fornication.  If fornication occurred and produced offspring, there was, through the dominant cultural paradigm, pressure to marry.  Going against those rules was branded scandalous and wrong.  I remember as a young teenager that the very topic of the Supremes’ song “Love Child” was deemed controversial.  Now, popular music is likely to discuss romantic relations nonchalantly in terms of “f…ing,” “b…ches,” “ho’s,” and similar unprintable terms of endearment.  The partners in the relationship are made expendable and insignificant.

Similarly, the problem in Juno is less the allure of teen pregnancy than the perception that the father is just a sperm-donor and otherwise irrelevant, except maybe to get some monetary support out of him while mom gets to control what happens with the child. That is why those girls could look upon the currently available homeless guy as equally suitable to some more socially elevated guy who might not become available until the girls themselves matured and became more socially elevated.

I have posted about the dangers of same-sex marriage.  One of those dangers is the further minimizing of the importance of the two-parent, opposite-sex family.  Recognition of same-sex marriage exacerbates that trend. If society must, as the California court said and the Massachusetts court at least implied, give formal recognition to any family-type relationship, that sends a message.  On top of that, these girls see pop icons and movie stars flaunt single-parenthood, and that, too, sends a message. How can one be shocked when the girls simply do what they see adults doing very publicly with the apparent approval of the culture? I am surprised that there aren’t more such cases.  As an aside, I seem to remember self-congratulatory statistics being cited within the last year about the decline in teen pregnancy since the 1990s because, it is claimed, contraceptive education is so successful.  If that’s true, these few girls are not exactly a cause for handwringing. I would not be surprised, though, if the teen pregnancy rate has increased.

Third, I’d like to know the socio-economic and ethnic background of these girls.  Illegitimacy rates for Whites are currently about what they were for Blacks shortly before the break-down of the Black family structure in the 1960s.  Black illegitimacy rates are now about 70% for the first child a woman has. While it seems a bit dubious to assign a single cause for this social disaster, I have heard of studies that assign a good part of the blame to new welfare laws in the 1960s that provided more generous benefits for children, but reduced those benefits if the recipient married the father. There is at least a correlation between those developments, and it may well represent a cause-and-effect connection.

Finally, in a complete non sequitur to the subject matter, the article claims that sex education can prevent teen pregnancy.  That may be correct as far as it goes, and it is one reason why I am in favor of such factual information being made available with cautionary advice to teens at a suitable age (not 13). The writer then predicts ominously that, unless Americans get over their hysteria about giving teens access to birth control, they’ll continue to have the highest teen pregnancy rates in the Western world. So, countries like Ireland, Mexico, and Chile, say, have lower teen pregnancy rates than the U.S. because they make birth control so much more readily available and not because of a host of cultural and religious restraints?  And the U.S., where teens have a constitutionally protected right to birth control that they can exercise with greater independence and less government involvement than taking a vitamin tablet to school, is “hysterical”?

What, in any event, does this story have to do with access to birth control? These girls wanted to get pregnant.  They made a pact.  Those that didn’t succeed in their task were disappointed.  They set upon the nearest available male to get things done. They could have had a class in “Advanced Condom Rolling” to go along with their basic elementary school, middle school, and high school sex education courses (plus labs), and it would have made no difference.  No one proposes that the cure for arsonists is to make them aware of the availability of free fire extinguishers and instructions for how to use them. If one is intent on setting a fire, that information is irrelevant. If one is intent on getting pregnant, installing yet another condom dispenser (in lieu of the harmful soda vending machine, perhaps) is an exercise in futility.  Far more fundamental steps are required.  Changing the perception that a child is simply a woman’s choice would be a good start.

This is about the closest I feel comfortable to sharing even humerous sexual matters directly with my children.  But then I’m not a judge on the 9th Circus Court of Appeals.

That explains, though, why they have Rear Admirals in the Navy, but not in the Marine Corps.

There are two sentences in the Supreme Court majority’s opinion in the 5-4 decision in the Guantanamo detainee case that should have decided the issue in favor of the political branches:

1.  “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”

2.  ”Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”

Thank you.  Case dismissed.  Lack of constitutional and historical precedent plus institutional incompetence to act equals “You lose, detainees.”  But, no, apparently having the law and common sense against you will not hurt you before this result-oriented and expansionist Supreme Court.  What’s going on here?

Recall that the Congress in 2001 and 2002 formally authorized the use of military force in Afghanistan and Iraq, respectively (the “AUMF”). As a part of those military efforts, American forces took prisoners.  Those that fought in the Afghan (Taliban) and Iraqi armies with proper insignia were treated as POWs and protected under the provisions of the Geneva Conventions.  However, the U.S. also captured or had turned over to it various alleged combatants who were not part of organized and uniformed military forces.  Eventually several hundred of them ended up at the U.S. Naval Base at Guantanamo, Cuba.  The base is leased from Cuba under an arrangement that allows the U.S. to use it under a renewable lease for as long as the U.S. wants, provided it is used as a naval base.  Cuba retains formal sovereignty over the area.  After conducting reviews, the government has released hundreds of the detainees over the years.  Fewer than 300 remain, some of whom may yet be released.

The President in 2001 directed the Secretary of Defense to set up procedures through which to review each detainee’s situation to determine whether he was an enemy combatant, and, if so, an unlawful enemy combatant (not part of a formal military force).  If he was, he might be detained until the end of hostilities or until he no longer was a threat to the U.S.  There would be periodic reviews of each detainee’s status.  There were certain protections given for access to evidence, legal advice and representation (though not necessarily “his own” lawyer), and appellate review.  Unlawful enemy combatant detainees might also be tried in front of military commissions for war crimes such as terrorist activities against civilians.  Additional protections were provided in those cases in the form of military and civilian lawyers and access to evidence.  While all these protections exceeded the protections to which unlawful enemy combatants were entitled under the articles of the Geneva Conventions, there would be no access to civil courts through a petition for a writ of habeas corpus.  Instead, an appellate review of, arguably, a more restricted kind would be available.

Lawyers for various detainees challenged these procedures.  In Rasul v. Bush in 2004, the Court determined that the federal habeas corpus statute allowed detainees to challenge their confinements in civil courts.  This was a creative reading of the statute by Justice Stevens, as Justice Scalia in dissent amply dissected.  While the case was merely a statutory interpretation, Stevens’ effort was a shot across the bow and served notice that the Court was not likely to be controlled by its traditional deference to the executive branch in the conduct of war.  Under traditionalseparation of powers constraints, courts are institutionally incompetent and politically unaccountable to deal with delicate matters of war and peace and military necessity in the conduct of war.  If any branch is to deal with the President, it is Congress.  In particular during war, the Court rather punts on such issues through procedural delays and narrow technical holdings, or devices such as the doctrines of non-justiciable political questions, standing, and ripeness.

That same year, the Court decided Hamdi v. Rumsfeld. Hamdi was nominally an American citizen, his mother having given birth while the Saudi-born family was residing temporarily in Louisiana on a visa. He was not held on Guantanamo.  The military, on learning that he was technically an American citizen (though the family had long since returned to Saudi Arabia), transferred him to the mainland.  The main questions were whether an American citizen could be detained as an unlawful enemy combatant, and, if so, what procedures were due him to determine his status.  The Court plurality, led by Justice O’Connor, concluded that Americans, too, could be detained as enemy combatants based on precedent (Ex parte Quirin) such as the German WW II saboteurs, at least one of whom, and possibly two, were American citizens.  Further, Congress had implicitly authorized the President as part of its 2001 AUMF to detain enemy combatants.

Although he agreed that Hamdi could be detained, Justice Thomas dissented.  He wrote that the President inherently has the power, once a de facto state of war exists, to detain enemy combatants and determine what process is due in finding who is an enemy combatant.  That process is for Congress and the President to define, not the Court. Justices Scalia and Stevens dissented, saying that, as an American citizen, Hamdi could not be detained but should be tried for treason or similar offenses in a criminal court. Justices Souter and Ginsburg agreed that Hamdi was entitled to procedural protections, but not that Congress had authorized his detention.

The procedures the Court suggested were quite limited and did not extend the full range of ordinary trial protections to Hamdi.  The Court plurality specifically opined that a military commission process would suffice, that rebuttable presumptions in favor of the correctness of the government’s evidence would be constitutional, and that hearsay testimony might be used because of the difficulty of evidence-gathering.

In response to Rasul and Hamdi, Congress enacted the Detainee Treatment Act (”DTA”) of 2005.   Part of that law stripped the federal courts of  habeas jurisdiction in all cases, including (Congress thought) ones then pending, of enemy combatants held at Guantanamo and other places outside the U.S.  The statute confined review to limited appellate review in the D.C. Circuit.

The Court then reacted, 5-3 (Chief Justice Roberts recused himself as he had been in the Court of Appeals majority that had voted against Hamdan), with Hamdan v. Rumsfeld in 2006. Unlike Hamdi, who was only contesting his detention as an enemy combatant,  Hamdan was to be tried for war crimes (terrorism-related actions and conspiracy). The Court first found by artful construction of the statute that Congress had not stripped the federal courts of habeas jurisdiction in cases pending at the time of the enactment of the law.  It then determined that Hamdan could not be tried for these crimes by military commission.  Why? The commission process was created by the executive branch, whereas Congress under the Uniform Code of Military Justice had adopted a different process by which military tribunals would operate.  Moreover, Congress through the UCMJ had incorporated the (otherwise not judicially enforceable) provisions of the Geneva Conventions that deal with “unlawful” enemy combatants and criminal trials.  Under the Geneva Conventions, the Court concluded, the types of crimes with which Hamdan was charged could not be tried by the type of military commission and under the procedures set up by the Defense Department.  Finally, the Court concluded, the common law of war and constitutional history do not support the government’s power to try Hamdan by military commission for this type of offense. Only specific Congressional approval would suffice, and the 2001 AUMF did not give the President that authority. Rather, said the Court, by adopting the UCMJ, Congress attempted to restrict the President’s discretion in that area, and, under the principles of Youngstown Sheet and Tube Co. v. Sawyer from 1952, the President has no constitutional power to act here in the face of Congressional limitations.  Got that?

Needless to say, the three separate dissents by Justices Scalia, Thomas, and Alito proceeded to demolish this constitutional house of cards.  I won’t go into that here.  The Court’s reliance on Congress to authorize or limit the Presid