Archive for April, 2007

Carhart Abortion Decision

Sunday, April 29th, 2007

Sometimes the law and the courts lead the country culturally and sometimes they follow. In the case of abortion and the Roe v. Wade decision, the Supreme Court has been mired in a decision that was so wrongly decided that it now has difficulty in reaching a position consistent with the national intuition about abortion.

According to a recent Washington Post poll, 16% of Americans believe abortion should be legal in all cases, 39% believe it should be legal in most cases, 31% believe is should be illegal in most cases, 12% believe it should be illegal in all cases, and 2% remain unsure. Thus 70% of Americans believe some regulation of abortion is appropriate. There has been a slight shift against abortion over the last decade, but these percentages given in the poll have remained remarkably stable. In 1996, 24% believed that abortion should be legal in all cases. If Roe v. Wade had been decided differently, states would have managed to reach some reasonable compromises with respect to abortion without the political rancor that now accompanies the issue. Moreover, these state-by-state decisions would enjoy the legitimacy associated democratic decisions.

These notions are consistent with the general view, that early in pregnancy the fetus has not really achieved the status of person and hence most Americans grant total discretion to the pregnant woman with regard to abortion. However, as the fetus grows, so does its identification as a person. This is why a majority of the country and a majority Congress agreed to ban partial-birth abortion (intact D&E). In this procedure, the fetus is delivered entirely except its head. The head is then destroyed and then remainder of the fetus is removed from the mother. There is some controversy as to medical necessity of the procedure, but one has to suspend common sense to not believe that the chief reason for destroying the fetus’s head is to insure that it is not born alive. Once a fetus escapes the mother alive, there would be an obligation to treat the baby as person and to render medical assistance. Partial birth abortion treads too close to infanticide and was hence it was banned.

In Gonzalez v. Carhart, the Supreme Court ruled 5-4 that the ban of partial birth abortion was legal. However, the decision was so narrowly drawn and the margin on the Court so small, there is virtually no chance that the Court as currently constructed will measurably erode abortion rights. It is not even clear that the partial birth abortion ban will save even a single fetus from destruction. Nonetheless, reading the opinions of the Court, particularly the dissenting opinion by Justice Ruth Bader Ginsberg is illuminating.

Roe v. Wade used the right of privacy implied by the Fourth Amendment to find a right to abortion in the Constitution, but it was never really about privacy. The government and the courts have no problem regulating other procedures like breast enhancement surgery that certainly touch on the issue of privacy. As Ginsberg honestly concedes, “…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Abortion rights have little to do with Constitutional imperatives, but with a notion about how a society should be run. Despite Ginsberg’s preference, this is the job of elected representatives, not judges no matter how wise or enlightened they believe themselves to be.

Ginsberg explains how abortion rights jurisprudence is tied to the concept of viability, the point at which the fetus will survive outside the womb. This is a convenient, but not principled demarcation. The age of viability continues to decrease. Recently, Amillia Taylor survived with less than 23 weeks of gestation, weighing less than a pound at birth. The American Association of Pediatrics has declared such babies as non-viable, but this little Amillia did not much care what the august American Association of Pediatrics avers.

One can anticipate that at some point in the future, it will be possible keep babies alive born earlier in the second trimester. It is seems that a more reasonable demarcation would be something inherent in the nature of the fetus (or baby), for example the maturity of its mental and brain structures. Again, these would be best debated in legislatures, where it is easier to change laws as additional scientific information becomes available.

It is hard to believe that the Gonzalez v Carhart decision would be considered a victory by either side of the abortion debate. Doctors may no longer be able to perform an intact D&E, but they can dissemble the fetus within the womb and then extract it. As Ginsberg concedes, “The law saves not a single fetus from destruction.” Is this what the pro-life movement considers a victory? Certainly, the pro-choice Americans will not perceive a benefit from the attention to paid to the public description of the gruesome procedures used to terminate late-term abortions.

Perhaps the only good to come of the Carhart decision is that it provided one more hilarious illustration of the mendacity of Senate Majority leader Harry Reid. President Bush appointed Justice Samuel Alito to the Supreme Court, replacing Justice Sandra Day O’Conner. She would have likely flipped the 5-4 decision in the Carhart Case. Compelled to criticize Bush, Reid reflexively complained immediately after the Carhart decision was released. He grumbled that “[a] lot of us wish that Alito weren’t there and O’Connor were there.” However, Reid voted for the partial abortion bill and he was thus complaining that the Supreme Court had upheld a bill that he voted for. Is Reid conceding that he voted for a bill he considers unconstitutional? One could not make up a better tale of hypocrisy.

Student Privacy

Sunday, April 22nd, 2007

It is not surprising that the nation is asking itself what might have prevented the massacre of 32 student and faculty and Virginia Tech. The killer (I am deliberated not according him the honor of mentioning his name) was 23-year old student who had a history of mental illness. There will be discussion about gun control laws and whether a different reporting regime would have prevented the killer from acquiring the weapons he employed. Here we address an important ancillary issue, the extent to which laws protecting student privacy prevent a healthy relationship between the university, students, and their parents.

The old tradition of universities and colleges was to manage students as parents would, the princple of in loco parentis. However, the ethos of extreme personal autonomy has spread to campuses. Students are treated as full adults, even if greater concern and care seem warranted. If as student is having academic or personal problems, parents will not be generally notified. Parents do not have right to view student grades. Parents are only notified if the policy are called or emergency medical treatment required.

In many ways this is convenient for universities. Schools still insist upon parental finanical support to the extent they practically can, but the source of funds is separated from the consumers, the students. Parents who pay for the services are more likely to confront school administrators about the quality of educational services and the manner in which they are provided.

Federal law prohibits universities from releasing student records, even grades, to anyone unless the student has granted permission. This crucial point is often time explained to parents at orientation classes for parents of prospective freshman. Don’t bother to call the school to find out how Johnny or Sally are doing, because federal law keeps the university from responding.

However, what is generally not said is that one important exception to the law is that the parents of children who are still dependents, as defined by the Internal Revenue Code, have every right to student records. This situation applies to many incoming freshman. The fact that this exception is not generally made clear to parents is an indication that universties rather not be bothered by pesky parents.

The extent that universities really care about the welfare of student is in part measured by their genuine attempts to involve parents in the education and care of student, not just fund raising and boosterism. The first step is to make sure that parents understand their rights.

It’s Not the Words

Sunday, April 22nd, 2007

Now that Don Imus has managed to get himself fired from the CBS radio network and a simulcast of his radio show on MSNBC, a post mortem is probably in order. Imus’s mortal sin was to refer to the Rutgers woman’s basketball team as “nappy headed hos,” efficiently combining racial and misogynistic slurs in only three words. No one defends his statement, however, it has brought attention to the use of similar language daily in hip-hop music. If it was so wrong for Imus, why is such language somehow acceptable for hip hop artists?

Hip-hop artist Russell Simmons plausibly argues that context is everything. Imus’s remarks appear deliberately harmful and hateful. The argument by the hip-hop community is that the use of words like “hos” authentically represent some elements of the black experience in America. While it is not possible to determine with certainty the motives of others, from the outside, the pervasiveness of such language in hip-hop music undermines the self esteem of young black woman and coarsens the overall culture.

Nonetheless, it is important to recognize that context is critical in determining the appropriateness of language. Just because the argument about context is used to defend the language of hip-hop music does not mean that context is not important.
Every year groups try to remove Mark Twain’s The Adventures of Huckleberry Finn from high school curricula because of its use of the “n”-word. In contemporary America, the use of this work is almost universally considered deliberately hurtful and mean-spirited. However, Twain’s masterpiece remains indictment of slavery and the use of religion to support the institution.

Words are like guns. They are not inherently harmful. It depends on how and when they are used.

Limits of Congressonal Power in Foreign Policy

Sunday, April 15th, 2007

Perhaps we should thank House Speaker Nancy Pelosi for yet another lesson in Constitutional law. A couple of weeks ago, she and a number of other representatives (including some Republicans) traveled to Syria to speak with Bashar al-Assad, the country’s strongman ruler. They traveled to Syria despite a request from President Bush that she and the other representatives not visit with Syria. President Bush was trying to isolate the Syrian government diplomatically.

Pelosi claims she was not there to negotiate, but was only on a fact-finding mission. This assertion is belied by the statements by Representative Tom Lantos (D-CA) who accompanied her and how foreign governments, particular the Syrians, treated her visit. Whatever the merits or difficulties associated with Speaker Pelosi’s foreign adventures, the question as to the prerogatives and limits of Congressmen and Senators with regard to foreign policy lingers.

The Constitution grants only indirect power, through the budget, to the House of Representatives. The President can negotiate treaties, but these must be ratified by a super majority (2/3) of the Senate. In 1798, Dr. George Logan, a state legislator from Pennsylvania, directly spoke with the French government. The Federalist Party in control of Congress was upset with his meddling and passed the “Logan Act.” The act is still in force today and specifically holds,

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

Despite this rather categorical admonition, Logan later traveled to England as a private citizen to help stop the War of 1812. The mission failed, but Logan managed to stay out of jail as he was not prosecuted under the act. Prosecutions under this act have continued to be rare. According to Wikipedia, there is only one know indictment under the act.

As a practical matter it would difficult for any Congress to repeal the Logan Act. To maintain his or her foreign policy prerogatives, any president is likely to veto the repeal. While there is little question that the Logan Act applies to private citizens, does it prevent Congressmen for engaging in negotiations? Can representatives and senators negotiate with foreign governments on their own? Apparently Congress believes they are not- permitted to negotiate. According the House Committee on Standards of Official Conduct:

“Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the intent to influence the measures or conduct of any foreign government or of any officer or agent thereof in relation to any disputes or controversies with the United States, or to defeat the measures of the United State.”

This is wording is pulled directly from the Logan Act.

The Courts have had little opportunity to rule on the limits of Congressional authority with relation to negotiation with foreign powers, but when they have they have unequivocally concluded that only the President is empowered to negotiate for the United States. The Constitution has delegated specific powers to the different branches of government. These enumerated powers are augmented by “implied” powers necessary to carry out the enumerated powers. The courts have concluded that in order to carry out his authority to negotiate, the President’s power to negotiate must be exclusive. In United States v. Curtiss-Wright Export, the majority concluded in 1936 that,

“The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success…. [The President] makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

The Court even cited the fourth Chief Justice of the United States John Marshall, who while a U.S. Representative argued that “’The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The Constitution operates most smoothly when the different branches respect their constitutional and traditional limitations and do not try to brush up against the limits of power.

If Speaker Pelosi rules from her head she will avoid such stretches of Congressional authority in the future. If she rules from her passions or bends to the more extreme elements of her party, she will ignore legitimate constraints on Congressional power.

Double Error By Pelosi

Sunday, April 8th, 2007

Some people can be wrong in principle, while others find themselves wrong in practice. It takes exceptional conditions to mange to be wrong in both. It is the rough equivalent of managing to commit a fielding and throwing error on the same play. Like a shortstop who bobbles a routine grounder and then overthrows first base, Speaker of the House Nancy Pelosi has tallied two errors in one short week. The circumstances of the rare mistakes by the usually sure-handed politician are her trip to the Middle Eats this week.

The Bobble: As a matter of principle and tradition, the country should speak with one voice to the world, and that is the voice of the chief executive. Unless specifically designated as a representative by the President, members of Congress should visit foreign countries only in a fact finding capacity, not in a negotiating role.

This is does not exclude the legislative branch from a role in foreign policy. Congress, particularly the Senate, (Pelosi represents the House) has Constitutional responsibility in foreign policy. While the President manages foreign policy, greets foreign heads of states, and appoints ambassadors, he does so with the advice and consent of the Senate. The President can negotiate a treaty, but it requires two-thirds consent from the Senate to ratify the treaty.

Speaker Pelosi, however, appears less constrained by this tradition. Against the specific wishes of the President George Bush, Pelosi visited Syria. Pelosi argues that it was a fact-finding mission and she was not attempting to create an alternative foreign policy. However, the mere visit constituted a breach with current policy. The Administration had been trying the isolate the thug-o-cractic government of Bashar al-Assad in response to its assignation of the Lebanese Prime Minister and its aid to insurgents in Iraq. Thugs like al-Assad have no natural legitimacy. They rule by fear and are not by consent of the governed. They crave the legitimacy implied by the kind foreign recognition so blithely conferred by Pelosi’s visit. Pelosi granted that implied legitimacy in contravention of current US foreign policy. Her mere visit implied a separate Democratic foreign policy.

This interpretation was confirmed by Representative Tom Lantos (D-CA), House Foreign Relations Committee who accompanied Pelosi on her trip. He explicitly claimed, “We have an alternative Democratic foreign policy. I view my job as beginning with restoring overseas credibility and respect for the United States.” That was certainly the way the trip was viewed a home and abroad. The San Francisco Chronicle happily claimed that “Pelosi seen moving around Bush in Middle East.” The Left-wing British paper The Guardian headlined “Pelosi challenges Bush policy by visiting Syria.” Whatever Pelosi protestations and whether by design or mistake Pelosi violated the tradition of criticizing at home, but not conducting an independent foreign policy abroad.

The Over Throw: On the the practical side, Pelosi compounded the original error by making several mistakes that demonstrated her inexperience. She was amateurishly self important when she pronounced, “We came in friendship, hope, and determined that the road to Damascus is a road to peace.” The expectations were at the least extremely premature.

Perhaps that small melodrama could have been forgiven, if Pelosi had not managed to misrepresent the Israeli position to the Syrians. Pelosi told the press in Damascus that “[Our] meeting with the president enabled us to communicate a message from Prime Minister [Ehud] Olmert that Israel was ready to engage in peace talks.” However, Pelosi had to be quickly corrected by the Israelis. The Israelis were willing to talk to Syria only on the absolute condition that Syria ceases its support of Hamas and other Islamic Jihad organizations.

Pelosi is an excellent domestic politician. She should not have allowed her anxiousness to undermine President Bush to interfere with American foreign policy and the tradition of the country speaking with one voice.

Free Speech for Gay Group: A Case of Hypocrisy

Saturday, April 7th, 2007

A couple of weeks ago, we criticized the Ninth Circuit Court of Appeals when it overruled an injunction by a lower court in favor of Faith Center Church Evangelistic Ministries. The religous group had been denied the right to use public facilities, facilities that were routinely used on a first-come first-serve basis by other community groups. The lower court had invoked an injunction allowing the group to use facilities while the case was be adjudicated. The lower court was relying on the Supreme Court decision in Widmar v. Vincent. According to the decision, if a public institution, in that case the University of Missouri at Kansas City, “makes it facilities available for the activities of registered student groups…[t]he university’s exclusionary policy [toward religious group] violates the fundamental principle that a state regulation of speech should be content-neutral.”

The Ninth Circuit found little harm if “mere” religious activities were circumscribed and reversed the injunction.

In a nearly identical situation, a lower court in Miami granted an injunction that allowed the Gay-Straight Alliance to have the same access to school facilities as other groups. The suit on behalf of the group was filed by the American Civil Liberties Union. The suit is valid, an injunction should be granted, and the Gay-Straight Alliance should formally prevail in the suit.

Miami falls under the jurisdiction of Eleventh and not the Ninth Circuit. We suspect that had the case occurred in their district the Ninth Circuit Court would have sustained the injunction for the Gay-Straight Alliance, though we can never know for sure. However, we do know that the Faith Center was not represented by the ACLU. The scent of hypocrisy is in the air.

Environmental Grownups

Sunday, April 1st, 2007

The validity of any argument is independent of the character of the person making the argument and even the rashness with which the argument is delivered. Nonetheless, there is something reassuring about passionately believed arguments delivered with directness and humility and without resort of ad hominen. Thus the rash and hyperbolic remarks of Dr. Rajendra K. Pachauri, the chairman of the United Nations Intergovernmental Panel on Climate Change (IPCC) are deeply disappointing.

Bjorn Lomborg is a Danish statistician who has questioned the conventional approach to global warming issues. In an interview in the Danish newspaper Jyllandsposten, Dr. Pachauri said, “What is the difference between Lomborg’s view of humanity and Hitler’s? You cannot treat people like cattle. You must respect the diversity of cultures on earth. Lomborg thinks of people like numbers. He thinks it would be cheaper just to evacuate people from the Maldives, rather than trying to prevent world sea levels from rising so that island groups like the Maldives or Tuvalu just disappear into the sea. But where is the respect for people in that? People have a right to live and die in the place where their forefathers have lived and died. If you were to accept Lomborg’s way of thinking, then maybe what Hitler did was the right thing.”

Lomborg, author of The Skeptical Environmentalist has argued against unnecessary and unjustified hyperbole with regard to environmental issues. Lomborg does not dispute climate change. Indeed, he has bases his analysis on data and conclusions contained IPCC reports. In recent testimony before Subcommittee on Energy and Environment of the Committee on Science and Technology, Lomborg concluded, “Global warming is real and man-made. This point has been made in many places, but perhaps most strongly and convincingly by the IPCC.” Lomborg’s argument disagreement with many on the environmental Left is that IPCC conclusions about global climate change and its effects do not support the notion that expected climate change will have “strong, ominous and immediate consequences.” Moreover, in deciding on the best strategy to deal with global climate change, it is imperative to weigh the costs of alleviating climate change directly against the costs of coping with its effects.

The reference Pachauri made to the Maldives, a group of atolls in the Indian Ocean, is associated with the fact small republic highest point is only 2.5 m above sea level. If sea level rises enough due to global warming 300,000 people who live there will be forced to move. This involves human and economic consequences felt most acutely by the Maldivians.

There also human and economic costs associated with the disruptions associated with reducing carbon emissions. These costs will increase unemployment, decrease wealth (or at least the rate at which it grows) and these costs will most likely affect the poorest among us. Lomborg suggests that these total costs and benefits of reducing climate change must be balanced against coping with the impact of such climate change. All resources are finite, and it is not unreasonable to maximize the benefit of such resources to all. One does not have to be callous with respect to consequences to the Maldivians, to be sensitive to the consequences on others radical and immediate reductions in carbon emission. For this assertion, Lomborg is compared Hitler.

If one reads Lomborg’s works or listens to him speak he does not display the anger of the hateful, but the concern associated with humble inquiry. This lends credibility to his presentation. On his better days, I suspect that Pachauri is not given to the mean-spiritedness he displayed in the interview cited above. Nonetheless, it is immature to will an end without appreciating the means to reach the end. If Pachauri wishes to reduce climate change he must be willing to acknowledge the costs of doings so.

Reducing climate change is not the ultimate good. Human well being and respect for individual human rights are the highest goals governments can lend themselves to. It is not too much use available resources to maximize these goods not necessarily to minimize the impact of humans on the Earth. We called to be stewards on the Earth, but stewards in the service of the Earth’s most value asset, us.