Archive for March, 2008

A Court Loss for the Administration

Sunday, March 30th, 2008

One might have expected more news coverage of a particular decision handed down by the US Supreme Court this week in Medellín v. Texas. The Bush Administration had exerted executive authority and was rebuffed by the U.S. Supreme Court. Such a decision would surely play into the main stream media’s conventional wisdom about the Bush Administration trampling over individual liberties. The case was not trumpeted in the news, because Administration was attempting to use an executive order to compel state compliance with a decision of the International Court of Justice in the Hague. Using executive authority to compel states to comply with international decisions is to some appropriate use of executive power.

This story begins with the case of Sanchez-Llama v. Oregon. Moise Sanchez-Llama of Mexico was convicted of attempted murder in Oregon and Mario Bustille, a citizen of Honduras, was convicted of murder by a Virginia court.  According to the Vienna Convention on Consular Relations a consulate needs to be informed when “within its consular district, a national of that State is arrested or committed to prison.” Unfortunately, in these cases, the appropriate consular officials were not notified in a timely manner. The defendants sought to have the evidence introduce in their trials before notification of the consul excluded from the case.

The local state supreme courts ruled against the defendants. In such cases according state procedural rules, the claim to exclude evidence must be made during trial. The International Court of Justice ruled against the states and the case wound up in the US Supreme Court. The Court re-affirmed the authority of the states in this matter. Although treaties carry the force of law, the Supreme Court noted that compliance with treaties is usually codified by Congressional legislation, not enforced by order of an extra-territorial court. Specifically, the court ruled that, “While a treaty may constitute an international commitment,it is not binding domestic law unless Congress has enacted statutes implementing it.”

Moreover, the US had withdrawn from the protocol specifying that “disputes arising out of the . . . Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” This specifically remove the jurisdiction of the International Court of Justice.

Medillin v. Texas is a similar case revolving around a citizen of Mexico who was convicted without proper notification of the Mexican consulate. The International Court of Justice ruled that the rights of a number of foreign nationals had been violated and that the states should reconsider the convictions.  The President wrote an memorandum directing such reconsideration. As the branch of government that negotiates with foreign powers, the President has an important interest in the faithful application of reciprocal foreign agreements. Nonetheless, the Court ruled that direction of the application of state law to foreign nationals is outside the Presidential authority.

Sometimes freedom, federalism, and sovereignty are maintained by heroic and conspicuous actions. Other times this service is performed deliberately and quietly in considered judicial opinions. Medillin v. Texas is such case.

Steele’s Prediction and Future Danger

Sunday, March 23rd, 2008

At the end of last year, Shelby Steele penned what yet prove to be prophetic book, A Bound Man: Why We Are Excited About Obama and Why He Can’t Win anticipating the dynamics and  consequences of Senator Barak Obama’s presidential candidacy. Although it is probably true that Obama, on the precipice of earning the Democratic Party’s nomination for president, advanced has much farther then many, including Steele, anticipated, Steele’s observations seem eerily correct.

Steele’s thesis is that in contemporary American society the outward face of blacks who have achieved notoriety can be generalized into two categories: “challengers” and “bargainers.” The Jesse Jacksons and Al Sharptons are quintessential challengers. Challengers start with the assumption that American society is inherently racist. Whites must demonstrate and prove their racial bonafides and good will by adopting the full range of liberal policy prescriptions, particularly those that having to do with compensating for past injustices, like affirmative action. Challengers generally make whites uncomfortable, fearful of doing or saying the wrong thing and being tagged as “insensitive.” As a consequence, many whites just avoid racial issues.

Those like Oprah Winfrey, Tiger Woods, and Barack Obama, Steele labels as “bargainers.” The bargain these people strike is that they assume the good intentions of others in exchange for comity. It is not that bargainers believe that racism does not exist or that it has not  resulted in tragic historic injustices, but they given the benefit of the doubt to contemporary Americans. This allows whites to be more comfortable in the presence of bargainers. With bargainers, Whites don’t have fear making an innocent remark that will be misinterpreted as racist. Whites can, at least in day-to-day activities, pretend that we live in gentle, color-blind society.

Obama is a careful bargainer and has a consequence been a very successful presidential candidate thus far. He has been called a “transforming” black candidate who, though conspicuously black, can sails deftly through the seas of the white community. Obama is a talented speaker who has excited the public with the promise of “change”

Early in the Democratic primary season, Senator Hillary Clinton still did very well among black voters. Obama was the candidate of liberal upscale whites, the people whose nagging guilts he assuaged. Now, that he has an opportunity to actually win, Obama has also excited the black community’s pride. In primaries now, he regularly wins an overwhelming majority of the blacks voters n the primaries.

Steele argues that the dilemma for conspicuous blacks is that neither the “bargaining” nor the “challenging” can be completely authentic. They are both “masks” worn by a minority in a majority society as a way of coping.  Masks hide the more difficult tasks for blacks to understand their own minds, and to treat whites as other individuals as blacks ask to be treated. If this mask worn by Obama is shed away there is the possibility that the comfort some whites have for him will atrophy.

This is the grave danger for Obama posed by the issue of the incendiary statements made by Obama’s Paster Jeremiah Wright. It is hard for Obama to appear to be a transformative uniter who brings together blacks, whites, and other minorities when his “spiritual adviser” is a race-bating bigot who urges God to “damn America.” Obama is stuck. He can repudiate Wright’s remarks, but he refuses to “disaown” himself of Wright. They are too close. Obama chose Wright to marry him and his wife and to baptize his two girls.

There is nothing in his demeanor, statements, or past that suggests that Obama subscribes to the extreme positions of his pastor. Yet he continued to maintain an intimate association over two decades. Perhaps he just joined this church to gain some “street cred” to help future political prospects in Chicago. Perhaps, Obama felt some tender loyalty to the person led him to Christ, and when it turned out that Wright had some ugly opinions, Obama felt uncomfortable it confronting Wright directly. This is understandable, but not exactly a profile in courage. Perhaps, while not subscribing to the anti-American rants of his minister, he harbors some lingering sympathy for black liberation theology his church. It is impossible to make this assessment from a distance.

Obama faces two choices: He can distance himself even more from Wright reducing his credibility in the black community, or keep Wright modest proximity and run the danger of becoming the “black” candidate as opposed to the uniter. It is very possible that Obama will be able to rhetorically threat this needle and be spared facing the dilemma. He is nothing if not intellectually and verbally talented and agile. If he can’t manage to resolve this problem, we run the risk that either the Democratic National Convention or the general election or both will become thought of as a“black” versus “white” contest.  And if Obama looses with a racially polarized vote, the 2008 election cycle may prove culturally divisive.

Bad Habits Catch Up with Geraldine Ferraro

Sunday, March 16th, 2008

If Obama was a white man, he would not be in this position. And if he was a woman, he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept.” — 1984 Democratic Vice-Presidential nominee, Geraldine Ferraro.”

It would be gallant to remember Democrat Geraldine Ferraro as the first woman to have a chance to become vice-president, but that would represent noble hyperbole. She was the running mate of former Vice-President Walter Mondale as he tried to prevent President Ronald Reagan and Vice-President George H. W. Bush from election to a second term in 1984.

Mondale and Ferraro never really had a chance. The memory of the failed presidency of Jimmy Carter was too fresh in everyone’s mind, and the conviction that because of Reagan it was “morning America” again for the Democrats to have any realistic prospect for victory in that election cycle. The Mondale-Ferraro ticket was crushed in just about everyone way possible. The pair lost the popular vote 58.8% to 40.6% and the Electoral College by an astounding 525-13. Mondale and Ferraro only carried Mondale’s home state of Minnesota. Even there, Mondale squeaked by 49.7% to 49.5% in the popular vote. A difference of 0.2% in the popular vote in Minnesota kept Reagan and Bush from earning 100% of the Electoral College vote.

Indeed, the challenge of facing so formidable a candidate as Reagan was one of the reasons that a Congress person  from New York was pulled from obscurity and put on the ticket. By boldly selecting Ferraro, Mondale hoped to secure a greater fraction of the female vote. Such an expectation was a little patronizing, but desperation was in order. In retrospect, it is hard to determine whether Ferraro helped or hurt Mondale’s prospects. Mondale was destined to loose with whatever vice-presidential candidate ran with him. Ferraro ran for office credibly despite the fact that her finances  where a source of controversy.

Now in public campaign speech, it is acceptable to say that a particular vice-presidential candidate was chosen to geographically or ideologically balance a ticket. However, it is not good form to say out loud that a candidate was picked because of gender or race. In 1984, it would have be declasse to have publicly argued that Ferraro was only selected because she was a woman. The history of gender and race discrimination make such observations uncomfortable. Though it might have been impolite to observe that she was selected for her gender two decades ago, she concedes that herself now.

Unfortunately, the Democrat Party has fallen into the habit of worrying about group rather than individual representation. This practice of identity politics accustoms people to looking at race or gender first when evaluating an individual. Republicans, in order to fight this identity politics, have been trained to never, never make racial or gender observations. Doing so brings the entire weight of the mainstream media down on the Republican. To make a racial observation for a Republican plays into the media’s perception of Republicans as harboring latent racist and misogynistic dispositions.

Geraldine Ferraro is not even close to being racist. However, when she suggested that Senator Barrack Obama is leading in the Democratic primary contest because he is black, the cauldron of identity politics stirred up in her party forced her to step down from the Hillary Clinton campaign. It is a little ironic that a political party that embraces affirmative action, where race and gender are specifically used in the selection process for school admissions or hiring, are so sensitive to Ferraro’s observation that race played a role in Obama’s recent electoral success.

Those who rise to the most prominent and conspicuous positions, like Senators Barrack Obama and Hillary Clinton, do so on the basis of a complex combination of talent, work, education, family, cultural heritage, and no small measure of good fortune. Race and gender further influence the rise of different individuals. Given the history of racial and gender discrimination, it is better that the role of such factors remain publicly unexamined by politicians.

It is indeed a welcome outcome that a black man and a female can be serious contenders for the presidency, however, ugly identity politics may ultimately decide who the Democratic nominee is. Is it unbecoming to confess to a small feeling of schadenfreude at the discomfort as a consequence of identity politics of those who have exploited it so mercilessly in the past?

The Right to Homeschool

Sunday, March 9th, 2008

The Amish are a convenient group to have around. They are, by their very nature, non-threatening . The Amish are a small, pacifist religous denomination that generally wishes to be left alone to practice their simple lifestyle as dictated by their religious beliefs. Sometimes restrictions on religious practices as imposed by the state are born out of a fear of unconventional religious groups. Without this fear, the dispensation granted the Amish under the “free exercise” clause of the First Amendment can be applied to all religious groups.

In 1972, the Supreme Court in Wisconsin v. Yoder ruled that the Amish could pull their children from public schools after the age of 14 and continue their vocational education at home despite Wisconsin law requiring school attendance untill 16. The Court conceded that the state retains a legitimate interest insuring that children are appropriately educated. However, this interest must be balanced against, “fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children.”

The Amish had demonstrated in the court record that the Wisconsin requirement conflicted with the Amish’s religious precepts and that the exercise of these rights would not “not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.” In essence, given a conflict between religious practice and state regulation, reasonable accommodation should be made for religious practice.

We are now face with a new case in California involving homeschooling. According a State Court of Appeal, students must be enrolled in public schools “unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught.” Hence, interested parents who are not credentialed do not have the right to educate their children at home.

The facts of this case are somewhat different from the Wisconsin v. Yoder case. There is no specific religious group being discriminated against, but it is clear that one of the primary motivations of many homeschoolers is to raise children with values not always encouraged in public schools. To be consisten with Wisconsin v. Yoder, it would seem that the free exercise clause would protect homeschooling parents. Of course, the state as explained in Wisconsin v. Yoder does have a real interest in insuring that students adequately educated,, and the quality of teachers is certainly relevant to this question. However, empirical evidence shows that homeschooled students perform better than their public school counterparts. Hence, the real state interest appears to be to maintain the public school monopoly rather than the proper education of children.

It is not likely that this particular case will stand further legal scrutiny. After all, California Courts are notorious for getting it wrong. Moreover, the politics works in favor of homeschoolers. Even the majority of parents who elect to send their children to public schools, do not appreciate being told that they do not have discretion on how to educate their children.

Attuned to this popular sentiment, Republican Governor Arnold Schwarzenegger has said that “Parents should not be penalized for acting in the best interests of their children’s education… This outrageous ruling must be overturned by the courts, and if the courts don’t protect parents’ rights then, as elected officials, we will.” California could simply change the law to specifically allow homeschooling by parents.

The National Education Association and other lobbyists on behalf of the public school monopolies would be best not to fight the political inclination to allow home schooling. Homeschooling is always going to be the choice of only a small minority. It takes too much sacrifice on the part of modern families for homeschooling to seriously affect public school attendance. However, making too much of issue of this will cause unflattering attention to be paid to how poorly public schools do in comparison to parental amateurs.