Archive for the ‘Law’ Category

Progressive Justice

Sunday, January 10th, 2010

Colleges and universities are unique and critical constituents of the culture. They can be monastic refuges where professors are permitted to live the life of the mind, free to pursue ideas and knowledge for their own sake, unfettered by the necessity of immediate practical benefit. At the other end of the spectrum, professors can both seek knowledge and pursue remuneration for the practical benefits of their research.

Universities and colleges are also businesses that must pay the bills. They exist in an in between world, more or less dependent on tuition income, government grants or subsidies, and alumni contributions. Recently, universities and colleges — especially the elite ones — have become islands of “progressive” thought in a sea of a center-right republic. As a consequence, they can provide a glimpse into what the world would look like ruled by progressives free of the accountability to a constituency.

In 2006, members of the Duke lacrosse team were falsely accused of rape. In a complex society, there will always be serious accusations both with and without merit. It is the responsibility of law enforcement and the courts to sort through these. In this particular Duke case, it turned out that the district attorney in Durham North Carolina, Mike Nifong, did not conduct himself properly. It came to light that he withheld exculpatory DNA evidence, while at the same time insisting on the guilt of those charged. Fortunately, the parents of the accused were sufficiently affluent to hire quality legal representation.  If not for their representation, the accused might have been ground down under the wheels of aggressive district attorney. Ultimately, Nifong was disbarred and served one day in jail for criminal contempt of court.

Part of Nifong’s motivation was the necessity of re-election in Durham, NC. Eighty-eight Duke faculty members (eleven from the History Department) signed a statement implicitly assuming  that the rape charges were not only true, but symbolic of the behavior of white males. It was in this context that Nifong came to the case. It may have been Nifong’s eagerness to demonstrate his sensitivity to minority groups that clouded his prosecutorial judgment.

One might have thought that the whole situation would have caused those who rushed to judgment, particularly the Duke faculty, to be self-reflective and recognize the importance of waiting for due process.However, progressive thought is not so easily contained. None of the eighty-eight faculty who signed the petition apologized. Perhaps they assumed that even if these individuals were not guilty in this case, there must be something that the white jocks were guilty of.

Current actions by Duke are more revealing of the perverse logic of progressive justice. According to the National Journal, Duke has adopted a new sexual misconduct policy that creates a situation ripe for the same notorious injustice perpetrated by the lacrosse player accusations. The new rules assume very simple-minded and easily swayed Duke co-eds who must provide very explicit consent lest some male Duke student uses his high IQ to persuaded a fellow Duke student into sex. The new rules do not allow the someone accused of sexual misconduct the representation of an attorney or the right to face the accuser. The accuser can also receive copies of the investigative documents, while the accused can not.

The rules are an invitation to a lawsuit by someone falsely accused,  an alternative mostly available to one who afford an attorney. The irony is that this example of progressive justice was developed and adopted by those, one would be willing to wager, who are convinced that the former President George W. Bush eviscerated the Constitution by granting limited due process to illegal enemy combatants.

The Cop and the Professor

Sunday, July 26th, 2009

The title “The Cop and the Professor” sounds like a romantic comedy on Hallmark television channel, but has turned out to be an illuminating window onto contemporary American culture. For those who have been under a rock for the last few days, on July 16  the Cambridge police were called when a passersby, according to police reports “observed what appeared to be two black males with backpacks” and “one of the men wedging his shoulder into the door as if he was trying to force entry.”  The neighbor did not realize that the two men were Harvard professor Henry Louis Gates and his driver returning to Gates’s rented home. The good professor had locked himself out. The police arrived. After this the details get murky, but Gates was arrested for disorderly conduct. According to the police, Gates was unruly while Gates says he was treated with disrespect as a “black man in America.”

When people are confronted with stories of an incident with insufficient information from which to draw a definitive conclusion, there is a tendency to draw from personal experiences. African Americans who have experienced unfair police treatment in their past would be inclined to believe the account of Professor Gates. Those who have met Harvard professors might not be surprised to find one that was loud and arrogant in response to a perceived insult. One is reminded of William F. Buckley’s oft quoted remark that he would rather live in a society governed by the first 2,000 people listed in the Boston phone book than the 2,000 members of the Harvard faculty.

Unwisely, when confronted with a question about the incident at a press conference, President Barack Obama volunteered both that he did not have all the facts and that the police “acted stupidly.” While reluctant to comment on the Iranian unrest because of a lack of information, Obama, neglecting his obligations not to bias a case as the chief law enforcement officer in the country, was willing to opine on this particular incident. Conservative commentator Bill Kristol has suggested that Obama’s touchiness on the issue may be less an act of racial solidarity than class identity. Obama just feels more comfortable with Harvard professors and is willing to believe the worst about working-class police officers.

As the facts have sorted themselves out, the police officers involved are looking vindicated. Sgt. James Crowley as turns out is unlikely racist who valiantly tried to save Boston Celtics Reggie Lewis with mouth-to-mouth resuscitation 16 years ago. Lewis unfortunately died of cardiac arrest.

Obama has offered an apology of sorts calling Sgt. Crowley a “good man.” At this point, most have reached the conclusion that if Professor Gates had a cooler head he never would have been arrested and if Obama had declined to comment on a case on which he had limited information he would have lived up to his promise of being a transitional figure in US race relations. The unfortunate part, is that police officers will continue to feel defensive, real incidents of racial bigotry will be given less credibility, and Professor Gates will have one more tale of victimhood with which to regale his students at Harvard.

When a Smile is Insufficient

Sunday, May 24th, 2009

If it were a rhetorical contest based solem on style, former Vice-President Dick Cheney could hardly compete against President Barack Obama. Obama is lean, tall, and athletic in poise. Cheney is overweight and supports a large head unburdened with hair. Obama has a smile that could melt more icebergs than rising levels of carbon dioxide. Cheney’s barely visible smile, composed of teeth in need of braces during adolescence, resembles an impish smirk. Obama has a cadence in his delivery that lends itself to lofty linguistic flourishes. Cheney has a systematic and clear delivery, but cannot modulate either the volume or rhythm of his voice sufficiently to evoke emotion. Obama is extremely popular, and Cheney is not. The fact that Cheney seems to tying the Obama Administration up in knots with his articulation of the need for enhanced interrogation techniques suggests that he is winning purely on the merits of his arguments.

Perhaps this is partly due to Obama’s obvious disingenuousness.  On one hand he says, “… I have no interest in spending our time re-litigating the policies of the last eight years,” but spends most of his recent speech in harsh criticism of the previous Administration. This might be acceptable if he recognized it is possible to come up with legitimately different positions in the difficult struggle between maintaining the safety of Americans and minimizing harsh treatment of prisoners who have information that could save American lives.

Instead, Obama argues, without providing independent evidence, that enhanced interrogation techniques have made us less safe. However, in the 1990’s there were attacks  in America that culminated in the 9/11 attacks in 2001. After that point, the Bush Administration has managed to keep attacks from American soil. This accomplishment would have been unexpected if people were asked in the period following the 9/11 attacks about the prospects of a future attack.

The enhanced interrogation technique that elicits the most attention is waterboarding, which some argue is torture. However, it was only used against three of the very highest Al Qaeda operatives, over five years ago, including Khalid Sheikh Mohammed (KSM). At time when Americans rightly felt another attack could come unexpectedly, KSM boasted of upcoming attacks on the US and personally slitting the throat of US journalist Daniel Perle. It is hard to argue that KSM is a sympathetic victim. The enhanced interrogation techniques did no severe harm to him and were successful, in providing important information. George Tenet, a CIA Director appointed by President Bill Clinton,  stated “Information from these interrogations helped disrupt plots aimed at locations in the United States, the United Kingdom, the Middle East, South Asia and Central Asia.”

On the positive side, there is evidence that Obama is learning in office, as he shoulders the responsibility to protect Americans. He now sees the need for military tribunals to adjudicate cases of detainees — a practice that he sharply criticized Bush for during the campaign. Against his initial impulses, he correctly decided against releasing provocative photos taken by the US military in their prosecution of those who abused prisoners. He recognizes that there may be those that need “prolonged detention” without convictions for some extremely dangerous detainees. He may still come to see that whatever protections he wishes to provide detains at Guantanamo can be provided at the state-of-the-art facilities recently constructed there. After having to grapple with the same issues that Bush did, Obama is drawn to some of the same policy positions he criticized before.

Unfortunately, Obama has set himself up for embarrassment and political division in the country. If he changes course significantly with respect to US foreign policy and the way he deals with extremists and if there is a successful attack on the US, his policies will compare unfavorably with those of the previous administration. This is true, irrespective of whether any specific changes are in any way related to a future attack. Under such circumstances his wonderful smile and suave demeanor with only serve to indicate a lack of seriousness.

Squishy Moralists

Sunday, May 10th, 2009

We have noted previously here that there are two respective positions with regard to the use of violence. One holds that violence is sometimes justified particularly for self defense when other choice are unavailable. The violence employed, of course, must be commensurate with the seriousness of a threat.

The principled pacifist position holds that violence is inherently evil and never to be used. The serious pacifist recognizes that adherence to this position could cost that person injury or even their life. A courageous pacifist does not avoid violence by denying the existence of real danger, but chooses a principled position despite the risk. A squishy pacifist, by contrast, postures as a moralist, but denies the existence of real threat. It is easy to be brave in the face of no threat.

A similar distinction can be drawn with respect to the use of enhanced interrogation techniques, when the use of them might indeed advert loss of life and catastrophe. Again the severity of the interrogation needs to be consistent with a reasonable assessment of the level of  threat. Contrary to popular notions fed by the mainstream media,  William Ranney Levi in the the Yale Law Journal  notes that the use of enhanced interrogation techniques pre-dated 9/11. [1]  In particular, he documents that “Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false.”

An alternative principled position is to believe that enhanced interrogation techniques should never, under any circumstances, be used. However, there is a recognition that the cost of such a policy could be significant additional risk to innocent people. Courageous people who hold this position insist that they believe the additional risks are a severe price paid to avoid the moral stigma of the techniques.

By contrast, squishy moralists try to have it both ways. They simultaneously argue against the used of enhanced interrogation techniques and that there is no risk in shunning their use. A number of intelligence people and former CIA directors attest to the importance of intelligence gathered from these techniques. One can decide that one will forgo the  information from enhanced interrogation, but it is morally juvenile to assert that there are no costs associated with the choice.

It is possible to forgive those who hold the latter position, in the sense that they may be in a state of denial. What is less forgivable are actions by House Speaker Nancy Pelosi. She was briefed on the enhanced interrogation techniques while they were occurring. She was silent. If her conscience were shocked, even if she couldn’t stop the practice, she could have made a formal (if classified) objection to the use of such techniques. She didn’t, perhaps because at the time the country felt truly threatened. However, to now deny her role and express moral outrage at the Bush Administration’s decisions is at best only hypocrisy. At worst, it represents a despicable cynicism.

[1] Waterboarding may be the exception. However, the exact extent it could be used without severe harm was well-known because it had been applied to American troops in training exercises. Some techniques used in previous administrations were perhaps more exotic.  Previously the CIA has implemented “..implemented chemical, biological, and other human behavioral control methods for purposes of interrogation.”

Impossible Standards to Meet

Sunday, May 3rd, 2009

Sometimes you have to sit by and marvel either at President Barack Obama’s political skill and other times you have to wonder why the press seems to be so inept in asking questions without adequate follow-up. At this week’s presidential news conference we were provided the opportunity to experience both.

Virtually everyone, at least until  Obama’s recent comments, acknowledges that there are instances when extraordinary interrogation techniques are not only necessary but morally required. The ticking time-bomb scenario (you need information about the location of a ticking time bomb to save many innocent lives) represents the extreme case. Senator John McCain, who has some moral authority in this area because he was deliberated tortured by the North Vietnamese, recognizes this exception.

When asked about an analogous dilemma that might face him as president, Obama refused to acknowledge the possibility and established a impossible standard to meet with regard to the efficacy of such decisions. He said:

“But here’s what I can tell you, that the public reports and the public justifications for these techniques, which is that we got information from these individuals that were subjected to these techniques, don’t answer the core question.Which is, could we have gotten that same information without resorting to these techniques?”

Of course, it is impossible to conduct a controlled experiment or prove a negative with regard to alternative strategies. We do know that a number of former CIA directors and others have insisted that the techniques in question have saved lives. Even Dennis Blair, Obama’s director of national intelligence, concedes that. “High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qaeda organization that was attacking this country.” [1]

Of course, we can never know with precision what would have happen if an alternative policy had been pursued. Assume that after a long period of conventional interrogation, a high-level Al Qaeda operative provides little useful information. Then extraordinary interrogation techniques are used and the detainee provides information that breaks up a plot days away from execution.

There is no way to know with certainty that if we had not extended conventional questioning a few more days that the information would have finally been revealed. We would never know with certainty if a foiled plot might have been adverted another way, including clumsiness on the part of the terrorists. In other words, Obama has relieved himself of moral responsibility by setting up an impossible burden of proof for others. While this is rhetorically clever, it avoids dealing with a critical issue that may confront an administration. We hope that more serious discussions about such issues are going on behind the scenes, even is dismissed in public. If not, the refusal to confront such issues guarantees that if such a situation arises, decisions will have to be made without the benefit of patient consideration.

All we know is that the policies followed before 9/11 were insufficient to prevent an attack and the policies afterward did protect the United States for the entire Bush Administration. We hope that whatever policies with regard to extraordinary interrogation Obama implements are as successful. The extraordinary interrogation techniques were used in the immediate aftermath of the capture of high-level Al Qaeda operatives. Since we are unlikely to have a similar opportunity in the near future, the question may be moot.

[1] Blair’s conclusion was edited from White House information releases. When the Obama Administration does this, it is careful editing. If the Bush Administration had edited a rhetorically inconvenient conclusion of the intelligence community, it would be cherry-picking information.

Universal Jurisdiction as Universal Tyranny

Sunday, April 5th, 2009

One of the criticisms on the Left of President George W. Bush is that he exceeded his sovereign authority  to impose his moral and political will on other countries. We find out now that the real criticism is not that he exceeded his authority, but that he did not do so in the pursuit of Left-wing goals.

For example, a Left-wing Spanish judge (who earned his degree while serving time for his involvement in terrorism)  is seeking to indict American attorneys who advised President Bush. By extending his authority outside Spanish jurisdiction, this judge is invoking the controversial doctrine of Universal Jurisdiction. This doctrine holds that individual states can claim criminal jurisdiction outside of the state’s sovereignty, independent of the relationship of the crime to the country seeking prosecution.  Spanish Judge Baltasar Garzón is attempting to indict Bush’s advisers, including Attorney General Antonio Gonzalez, Douglas Feith, a former under Secretary of Defense, and Justice Department attorney John Yoo. Such an indictment would be in violation of the sovereignty guaranteed by the signatories of the United Nations Charter.

Universal jurisdiction was meant to apply to situations where there was no sovereign authority to enforce the law such as in piracy or the occupation of a country after a war where there is no other competent authority. The principle of sovereignty guaranteed in the UN charter prohibits the usurpation of sovereign authority simply because another country disapproves of the local jurisprudence.

There are some who argue that despite the legal technicalities, the need to pursue some individuals who commit especially heinous crimes is so great that it permits the use of means not normally accepted. How different is this argument that enhanced measures can be used to interrogate individuals when the lives of innocents are involved?

The Left does not really seek the application of international law, but its selective use to pursue political opponents. Some Spaniards like to specialize in the use of extraterritorial legal exploits in pursuing former Chilean right-wing dictator Pinochet, or Israeli officials, or Americans. There do not seem to be any “universal jurisdiction” indictments applied against  terrorist leader Osama Bin Laden. This may or may not be related to possibility that, Spanish lawyers involved in going after Bin Laden might find their personal safety threatened. The 2004 Madrid bombings illustrated how it is possible to intimidate the Spanish public. Leaving aside the questions of legal jurisdiction,  for a court to maintain moral authority it must avoid the reality and appearance of using its power for politically-motivated prosecutions. The Spanish fail this test.

When the US liberated Iraq it did so under the legal auspices of the original authorization by the United Nations to remove the Iraqis from Kuwait. The armistice that halted the hostilities as the US pursued Iraqi forces was based on certain agreements Iraq agreed to. These agreements were violated and the US had the clear authority to resume hostilities.

Would the Left (who by the way did not indict Saddam Hussein) have been happy if the United States found a federal judge somewhere to issue an indictment against Hussein. Then US could have then have called the Iraq operation as law enforcement effort? Would that have pleased the proponents of the cavalier use universal jurisdiction? Would the Left be pleased if a Conservative country issued indictments against other judges in other countries who ruled in favor of abortion rights. Would the Left be happy if the US issued indictments against Chinese officials for actions against Tibetans. Would the Left ever seek an indictment against President Bill Clinton who boasted that he ordered the assassination of Osama  Bin Laden without an judicial authority.

Perhaps the most pernicious problem with universal jurisdiction is that it may hinder important diplomatic efforts. Say for example, the international community can persuade a particular tyrant to step down and  allow a democratic government to take over in exchange for free passage and asylum in a third country. If that particular tyrant is concerned about universal jurisdiction, he or she might calculate their self interest rests with toughing it out in their own country.

One can apply diplomatic pressure and moral suasion to deal with issues between sovereign countries. Indeed, if a country believes it is morally necessary it can impose sanctions of some sort against other countries. To use universal jurisdiction is to allow tyranny by small number of judges who choose to extend their jurisdiction beyond that mandated by international law.

Is It All About Power: Census Moves to the White House

Sunday, February 15th, 2009

Successful democracies are not just about elections and voting, they are also about a collective political culture that recognizes institutional limits. The temporary losers in a democracy recognize they will have an opportunity to make their  political case later and need not resort to violence or other illegal means to circumvent election results. Likewise the temporary winners recognize that their time in power is also limited. Winners must show respect for the process and not try to use their position to undermine the very democracy that granted them temporary power.

It is, therefore, unfortunate that the Obama Administration is apparently trying to politicize an important function of government, the dicennial census, that ought to be free from politics, by having it supervised from within the White House.  The US Constitution calls an “actual enumeration” of people for the purpose of apportioning the number of representatives in House of Representatives. Interesting the first nine censuses were conducted by the judicial branch, the least political, not the executive branch as it now. The census clause in the Constitution is included in Article I of the Constitution suggesting a role for the legislative branch. In any case, direction by clearly partisan agents undermines confidence in the census.

The fact that the actual counting is performed by professionals in the Department of Commerce has kept the census free from scandal, but certainly not controversy. Certain groups claim that they are not sufficiently captured by the census, but the Census Department has extended programs to find people who are less likely to be counted.

The Constitution calls for an an “actual enumeration,” but some groups have argued for a statistical sampling to estimate populations. Though the use of sampling for compiling a census has not been tested in court, unless the Supreme Court elects to ignore the actual words of the Constitution, statistical sampling for the purposes of apportionment is clearly unconstitutional.

However, this does not mean the mischief cannot occur in an actual enumeration. Resources can be allocated to find every last person in a certain area with less diligence in devoted in other areas. The current plan is for the census to be supervised from the White House under highly-partisan Rahn Emmanuel, President Barack Obama’s  Chief of Staff. Even if Emmanuel were to act a thoughtful and purely apolitical manner, the prescedent of having leading the census from the White House would set the stage of future politicization. Imagine consternation among Democrats if a future Karl Rove were to be charging of supervising a future census from the White House.

If the White House cannot recognize the precedent it is setting in politicizing the census, it is unfaithful to democratic ethos and conceding that for them it is just about power.  Moving the census to the White Hous is the moral equivalent to using the IRS or the Justice Department to go after political adversaries.

The Dangers of Judicial Activism

Sunday, November 9th, 2008

Whenever a court over rules a law, it is, by definition, in conflict with the democratic decision of the people. We, however,  wisely give courts the authority to interpret between laws that are in conflict and to hold us collectively to state or the federal constitutions, laws we democratically agreed would be supreme law.

The courts have  a prudential obligation to exercise this authority sparingly lest they diminish the moral authority of judicial system and decrease the ability of courts to exercise such authority in crucial cases. When overturning long-held societal conventions, courts must be able to point to a clear constitutional mandate. If courts are perceived to be acting politically rather than under legal authority, they distort the balance between the legislative and judicial processes.

The courts were correctly used to overturn racial discrimination when practiced by state or federal governments in the twentieth century, but it took federal law, the 1964 Civil Rights Act, to eliminate any legal sanction for racial discrimination. The endorsement by a popularly-elected legislature completed the process.

By contrast, the clearest recent example of the overstepping of judicial authority was the Roe v. Wade decision which concluded from ambiguous and dubious constitutional jurisprudence that states essentially have no right to regulate abortion in at least the first trimester. If there were clear rather than convoluted authority to support the decision, it would have been easier to reconcile it with popular opinion.

At the time of the decision in 1973, abortion was still prohibited in many states, but legal in quite a few others. The country was coming to grips with how it wished to deal with issue. If the courts had declined to preempt the political process, we would now probably have a web of diverse laws from state to state, some more liberal some less so on abortion. Some states would be more rigorous about parental notification and about waiting periods. It would have been far easier to experiment with the different approaches from jurisdiction to jurisdiction.

These political decisions would have carried the moral authority of the majority and resulted far less rancor. If mistakes were made, they could more easily been undone. Instead, we have a divisive issue that has made the appointment of each new Supreme Court justice an acrimonious affair and has distorted jurisprudence in other, particularly free speech, cases.

You might think that the courts would have learned their lesson in dealing with these  highly-charged social issues, but in 2004 the Massachusetts Supreme Court declared that the Massachusetts Constitution required that the state offer same-sex marriages. This decision survived in Massachusetts and indeed in a 4-3 decision the Connecticut Supreme Court forced that state to recognize gay marriages.

The consequence of such judicial meddling is that across the country states are passing laws directly preventing same-sex marriages. Despite the rather overwhelming Democratic national victories last Tuesday, the issue of gay marriage failed miserably at the polls. After a California Supreme Court decision compelling the state to recognize gay marriages, Proposition 8 passed with 52% in California vastly out performing presidential candidate, Senator McCain who managed only 37% of the vote. The Proposition 8 decision was a particularly dramatic vote, because it imposed a state constitutional amendment to tie the hands of the California Supreme Court. It is not politically healthy to have people overturn a court decision by referendum, but this is what happens when decisions are removed from the legislature where they are more properly decided.

Other states followed California’s example. Arizona and Florida passed anti-gay marriage propositions, also out polling Senator McCain in those jurisdictions. Arkansans voted for an act to prohibit non-married couples from adopting children and becoming foster parents;  an act largely directed at same-sex partners.

Given expected changes in the national culture including relentless promotion of a pro-gay rights agenda in the national media, it is reasonable to expect that some states will vote to recognize gay unions in some form. The most likely is some civil union arrangement that provides for simple inheritance and other financial rules that mirror some marriage protections. These will be instituted in fits and starts using different models as different jurisdictions find ways  to deal with the issue.

There is no reasonable construction of most state constitutions and the national constitution which compels acceptance of same-sex marriages. The more courts attempt to force the issue the more likely there will be political blow back that will undermine the authority of the courts, increase the political acrimony, and extend the time before which some reasonable and widely popular resolution of the issue is accepted.

Interpretation of the Second Amendment

Saturday, July 5th, 2008

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. — Second Amendment to the United States Constitution.

There are some Second Amendment advocates who are conspicuously pleased with the Supreme Court’s decision in District of Columbia et al. v. Heller. In many ways, they should be. The majority opinion swept away the lingering doubt about about whether or not the right to “keep and bear” arms is an individual right, not contingent upon membership on a militia. The Court came down unequivocally on the side of the Second Amendment’s protection of an individual right.

However, the decision prevailed by the slimmest possible margin 5-4. A Court with a different composition, say one in which a potential President John Kerry had been able to choose different justices than John Roberts and Sam Alitio, or one in which a future President Barrack Obama would be able to replace one of the five in the majority, the decision would have been certainly different.

Nonetheless, the Heller case will serve as a  precedent and it will take some time for even a future, liberal and energetic Court to whittle away at this decision. One reason this precedent will be difficult to erode is the granite-hard reasoning and rigid clarity of Justice Antonin Scalia’s majority opinion.

The most frequent argument against an interpretation of an individual right to keep and bear arms is that the first or “prefatory” clauses implies that the second or “operative” clause is limited to the militia. Specifically, that the militia rather that than an individual has the right to “keep  and bear arms.”

Scalia points out that other documents written at the time for state constitutions had prefatory clauses indicating intent, but such clauses have never held to limit the rights of the operative clause. Scalia cites legal doctrine of the time to buttress this approach, “It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” [1]

Very simply, the writers of the Second Amendment were concerned that the Federal Government might supersede and the eliminate state militia. By explicitly recognizing the “right of the people,” the Founder realized that it would be impossible for the Federal government to disarm the militia (“all males physically capable of acting in concert for the common defense”)

It is as important to note that the phrase the “right of the people” is used elsewhere in the Constitution. In each case, it refers to an individual right as in the:

  • “…right of the people to peaceably assemble…” (First Amendment) and
  • ” …right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” (Fourth Amendment)

There are some who have tried to interpret the “arms” that people have the right to keep and bear are the “arms” in common use at the time of ratification. Under such an interpretation, modern handguns are not arms that people have the right to. Of course, such an interpretation is easily dismissed. The Constitution is not limited by the technology of the time. For example, freedom of the press reasonably includes more modern forms of telecommunication.

According to this decision, the arms included under the Second Amendment protections are arms that people use for legal and legitimate purposes, such as hunting and self-defense. This leaves some broad discretion on the part of the state to limit the use of extreme or uncommon weapons. However, in this case, the Court ruled that handguns have an important self-defense use, the right to keep and bear these arms is protected.

The salient political observation with respect to this case is to recognize those who are pleased that individuals are little freer after this decision and those who are not.

[1] J. Bishop, Commentaries on Written Laws and Their Interpretation, Section 51, p. 49 (1882)

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.