CA Supreme Court Shifts Marriage Terminology
by neolibertarian
The California Supreme Court ruled it unconstitutional to allow opposite-sex couples to unite under the term 'marriage' and same-sex couples to unite with the same rights under only alternative names like 'domestic partnership.' This is all based on the whole San Francisco gay marriage controversy from 4 years when Mayor Newsom here allowed a few thousand same-sex couples to get licensed as married. That act of municipal civil disobedience has been rewarded and I think rightly so.
Without speaking to the legal merits specifically, reserving the term 'marriage' is clearly meant as a slight against the relationships of same-sex couples. Since we're simply dealing with a contract, why should it discriminate on what is largely an arbitrary basis? I'm not positive that this is 100% on the specific constitutional merits here, but certainly it's a rational and good decision.
Marriage should be a social and religious term, and the government shouldn't intervene and try to decide who gets to be married and who gets to be partnered. That's asking for trouble.
A dissenting Justice worried that future courts might "conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified." He tried to innoculate himself against charges of gay-bashing by saying, "In no way do I equate same-sex unions with incestuous and polygamous relationships as a matter of social policy or social acceptance." Of course, what he's really saying is that same-sex unions are less deserving than opposite-sex unions, so why not lower ourselves to even-less deserving unions like incest and polygamy.
While I agree that constitutional rights should not evolve (that implies that people in the past were morally entitled to less than all of their deserved freedom) I think that it's silly to think that removing the legal right to union is what's most important here.
It's not illegal to have incestuous or group sex (or even incestuous-group sex), and it's not illegal to cohabitate and share assets with a close relation or with more than one other person. The only thing that's illegal is combining into a marriage or partnership with full rights. The acts of incestuous or group marriage aren't illegal, only the legal recognition of the contract is illegal. Why is it any more damaging to give them the right to legally-recognized covenants and contracts?
Obviously there are dangers when it comes to the acts of incest and polygamy, not least of which is the chance that the marriage is coerced or psychologically damaging. It would seem highly suspicious to me if a father married his daughter at the very point that she reached the legal age - clearly he could have darkly influenced her into it - but does this mean we can assume that all such unions are coerced? In the same way, just because cults in the American Southwest have a penchant for marrying off young adolescent girls to potentially abusive or emotionally distant polygamous husbands doesn't mean we can assume that every union between three or more people is immoral.
The law is not the place to express our personal distaste with others' behavior. People should simply be free to contract with others.
Sidenote- It's interesting that polygamous marriage rights have been totally marginalized and ignored by the movement for same-sex marriage rights. It's similar to how the second-wave feminist movement ignored the gay rights movement, and to how the abolitionist movement largely ignored women's suffrage, and how the Jacksonian suffrage movement ignored abolitionism.
Taxation of Settlement Recoveries
by neolibertarian
Coyote has a post on the taxability of an insurance payout. Since the state of Arizona treats the insurance payout as a purchase, it charges sales tax on the payout amount. This is tragic and typical. The government attempts to insert itself into nearly every financial transaction.
Then he says that if he had sued the other driver in court, his settlement would not be taxable. I'm not so sure that this is the case, as I am not an attorney. What I do know is that a large number of lawsuit recoveries are considered taxable. This is especially so in suing one's employer, when the damages are often attributed in part or in their entirety to wages. So if an employee sues the employer, and wins tens of millions of dollars, they might then receive a W-2 for for a huge sum of money and have to pay income tax (either the top bracket or AMT) on those millions of dollars.
This leaves one's settlement dramatically reduced. Even more dramatically, the taxes are often due on money then paid to attorneys who argued the case. So even though a plaintiff may receive a $5 million settlement, say $2 million might go straight to attorneys and the government will also claim taxes on the whole $5 million (it will also claim taxes from the attorneys on the $2 million of their income). The biggest problem with this that I see, aside from the coercive issues of all taxes, is that the government will and most likely has already inflated the amounts in damage awards. As plaintiffs and their attorneys grow more aware of the pending tax burdens, they will demand more in their settlements to offset those anticipated costs.
If the GOP really wants to work to reduce out of control civil tort recoveries, they should stop the government's taxation of them. It was the GOP in the 1990s that dramatically increased the requirement for a recovery to be non-taxable. Due to what was argued was a loophole in the original tax code from 80 or so years ago, many damage awards were not taxable. The Congress changed this in the 90s to require a physical injury or physical sickness in order to make an award not taxable. So emotional distress damages became taxable, unless directly linked to a physical injury or physical sickness.
What Coyote reminded me of was the recent Murphy case before the DC Circuit. The case was first decided on the basis that the tax was not constitutional. After the uproar this caused, the same court panel reheard the case and found that the tax was constitutional under a different part of the Constitution. The whole ruling was inconsistent and ridiculously insulting to one's intelligence. The part that relates to Coyote is what Chief Judge Ginsberg said about Murphy's award (Murphy was a whistleblower who was suing for damage to reputation):Murphy’s situation seems akin to an involuntary conversion of assets; she was forced to surrender some part of her mental health and reputation in return for monetary damages. Cf. 26 U.S.C. § 1033 (property involuntarily converted into money is taxed to extent of gain recognized).
This is absurd. Murphy's reputation, which was damaged by the military for being a whistle-blower, was involuntarily converted on the order of property. This means Ginsberg, tossing out something of a casual observation or afterthought, says that her reputation is her property. This is a major reversal from Ginsberg's first decision, before the uproar, where he found that her award for damage to reputation could NOT be taxed.
And, speaking as a layman, it appears as though §1033 would apply to Coyote's hypothetical lawsuit. Unless he turned around and (in a timely fashion) put those damages into buying a new car or mode of transportation, in which case it would fall under §1033(A). But turning the damage into money or unlike property without converting it back into like property within a defined period or years (I think it's two years) would incur taxes. Again, though, I'm not a lawyer or an accountant.
The real problem is that the government isn't a business, needs no direct permission from the taxpayer and has an insatiable thirst for income. So anything that happens is taxable, anything that moves is taxable, anything that doesn't move but has value can be taxable. It's only through laws, regulations and constant supervision that some of these areas can be protected from taxation.
Gonzales v. Carhart
by neolibertarian
The challenge of the partial-birth abortion ban was rejected and the ban sustained. This means it is now a federal crime, generally, to perform one type of abortion.
Abortion proponents and apologists argue that partial-birth abortion is an inflammatory name for the procedure. So whenever pro-abortion groups issue press releases, pro-choice pundits make arguments on TV, and newspapers or newswires talk about it, they make sure to qualify 'partial-birth abortion' as the name that opponents use for the act. Let's be clear: the child is partially birthed by inducing labor in the mother, then it is aborted before birth is complete. Partial-birth abortion is an absolutely accurate description.
The act of termination is particularly gruesome; scissors are forcefully inserted into the rear base of the child's head. The scissors are spread to make a larger opening. A vacuum is used to suction out the brain matter of the fetus, collapsing the skull and destroying its life.
There's little wonder that nearly everyone who knows the details is opposed to the procedure and consequentially most polls show somewhere from over 60% to nearly 80% of Americans opposed to it being performed.
As to the judicial merits, I'm of course glad the ban was upheld. The whole mess of abortion jurisprudence needs to be swept clean and started anew. The cliches and double-talk and compromise-dominated language make everything extremely unclear. Those opposed to abortion should be motivated by respect for life, but this law only bans the way in which a fetus is aborted. Those supporting abortion say they're motivated by privacy, generally, but Ginsburg's dissent somehow made this about women's right to equal citizenship, as though being inconveniently pregnant negates the benefits of citizenship. More than that, the confusing dictates of caselaw and the puzzling review standard of 'undue burden' show how poorly coordinated the Court's rulings are.
The root problem is that Justice Blackmun's original decision in Roe was arbitrary by his own admission. In his writings to other Justices, Blackmun admitted that the point of viability was arbitrary and he essentially admitted that he was wholly creating law. It's no wonder that the Court remains muddled, autocratic and without a hint of self-consciousness about its own contradictions on the issue.
The larger point shines through to me: one particularly cruel and unusual form of abortion will now rarely, if ever, be performed. Let's hope the law's exemptions are not so wide as to negate the law's effectiveness entirely.
This is a victory for life and freedom, but is a little like telling a murderer he can use a handgun as a weapon of choice but not a bloody axe. In the end, the difference is mostly on the side of those of us who have to perceive the abortion, and not on the side of the child being aborted. Children will still be aborted, even in the second and third trimester, though hopefully this ban will make some fence-sitting parents think twice before ordering an abortion.
Campaign Finance Strikes Again
by neolibertarian
Bringing an idea to its natural conclusion, the California Democrats are pissed off that Arnold was a guest for Leno last week:Arnold Schwarzenegger will receive from NBC and The Tonight Show with Jay Leno what can only be described as a free multi-million dollar infomercial when the Governor appears (in violation of FCC equal time rules) on The Tonight Show.
Right now, Coyote has a stickied post about McCain-Feingold's chilling (more like deep-freezing) effect on free speech. He points out that now, "only members of the media, including intellectual giants like Bill O'Reilly and Keith Olbermann, can legally criticize sitting politicians on TV and radio in the runup to the election." But since the CADems have taken campaign finance rules to their logical conclusion (non-monetary contributions, like hotel accomodations or refreshments are counted, at least under California campaign finance rules), now even media folks are hovering closer to a ban.
If Arnold appearing personally isn't exempt, then a bit that's pro-Arnold or anti-Arnold (or pro-Angelides or anti-Angelides) would logically count, too. So every time Conan has that bit with the mouth-cut-out Arnold saying KALIFORNIA and FANTASTIK, that will also be a non-monetary contribution (presumably to Angelides). I mean, come on.
Let's go to a simpler rule: no donation limits, only reporting requirements. Everybody can say whatever they want, wherever they have permission, including TV and radio. The alternative solution is yet more limits.
This is an example of the regulation by half rule spilling over from strict economics into life more generally. The rule is that simply regulating a free system is detrimental to the free system, often without producing the results desired from a controlled system (my example is California energy deregulation or the flu shot system - read the article to get it a little more in-depth). The situation with campaign finance is this: regulations prevent people from speaking, but they don't prevent everyone from speaking. A more complete, draconian crackdown on media personalities, newspapers, and the Internet (youtube could send an unrestricted ad to millions worldwide) would complete the control regime and fulfill the centralizing intent of the 'reformers.' An unrestricting approach would allow honesty of the regulations (as they are no longer readily circumvented) and free speech. But in between allows neither freedom nor effective regulation.
The easiest solution is to follow the First Amendment and let people have as much information as they want and decide for themselves what to believe or disbelieve.
Free speech, people! Free fucking speech.
Adam Walsh
by neolibertarian
Yesterday was the 25 anniversary of Adam Walsh's kidnapping. He was six at the time; he would be 31 now. He was left alone for only a few minutes, was probably kidnapped by murder Ottis Toole, and his head was found in a canal. The rest of Adam has never been recovered.
His dad, John Walsh, has become America's (perhaps the world's) top advocate for the protection of children, establishing causes and giving testimony on critical issues. He has helped establish a lot of the framework that today helps the parents of kidnapped children. The law President Bush signed yesterday in Adam Walsh's honor establishes a nationwide offender database, among other things.
Hudson v. Michigan
by neolibertarian
The Supreme Court ruled 5-4 in a Scalia opinion that if the police violate the 'knock and announce rule' that it doesn't necessitate the use of the exclusionary rule for whatever evidence may turn up. See How Does The Supreme Court Work? article 2 for more on the exclusionary rule.
The reasoning Scalia gave was basically that the violation of knock and announce isn't bad enough to suppress the evidence, and that there are other ways to counter police violations than the exclusionary rule.
I don't subscribe to the idea that there should be balancing of this type. Unless the search and the privacy right are directly connected, using one as punishment for the other is misguided. However, I'm a huge fan of the exclusionary rule, and it's my assertion that a bad search and lost privacy are inseparably connected. A bad search (one violative of the Bill of Rights) doesn't legally exist. Practically this discourages gestapo tactics, but more than that the search shouldn't count because it oughn't have happened at all.
The balancing act is inappropriate because it's letting criminals off as punishment for the cops. But excluding searches that shouldn't exist at all makes great sense. There's a difference in the process if not the result.
The problem with the knock and announce violation, as I see it, is not that the evidence was obtained without warrant or probable cause, because there was a warrant in this case. The problem is that property gets destroyed (locks or doors broken) and in this case the door was unlocked. Even the federal codification of knock and announce, 18 § 3109, is about destruction of windows and doors on the way in or out serving a warrant.
I'm not sure just how important the knock and announce is and whether waiting 3-5 seconds before turning the knob of an unlocked door is a really serious matter. But I know that the search had probable cause, so even if the police were rude in its execution, the warrant is good - therefore the search and the ensuing evidence should be admissible.
Of course, nobody on the Court really took this position, but that's not the point.
I really have trouble with Scalia's decision because I think it weakens the basis of the exclusionary rule, first by keeping it on weak footing (as a punishment for police misconduct rather than a direct judicial remedy for an unlawful search) and then by restricting somewhat its application.
I'd prefer to have clearer lines on when it is and isn't appropriate to have the exclusionary rule, rather than a sliding scale situation.
Scalia further argues that there are alternative remedies for police misconduct, including civil litigation (which is silly - even Michigan agreed there's little remedy to be found there) and police self-restraint. Of course, what if the judicial practice of the exclusionary rule is one factor encouraging police restraint in the first place?
Relying on the professionalism and restraint of the government is insulting and borders on the authoritarian. Our entire political system is set up with limits, checks and obstacles to keep us from having to just blankly trust the government to be good. The government needs checks and punishments (including stripping the police of their sense of extra-legal entitlement and the official and unofficial immunity they often enjoy from prosecution). I just don't think that the situation at hand constitutes an illegal search and therefore the exclusionary rule shouldn't apply - though for bad searches it needs to stay unapologetically strong.
The real value of this case as caselaw is questionable since it relied on Kennedy's concurrence, which was somewhat sparing compared to Scalia's opinion. Alito, Roberts and Thomas sided with Scalia.
Choice For Men
by neolibertarian
Cathy Young (tip to VC) is discussing the prospect of reproductive choice for men. A men's rights group has finally found a test case of a father paying child support. This has spawned a series of discussions on the subject.
Interestingly, Cathy Young cites discussions from Shakespeare's Sister and Neo-neocon, meaning it's a blog discussion between three women about men's rights. I only find it interesting because I am so regularly subjected to the fallacy that as a man I am not allowed to have an opinion on abortion (unless I'm pro-choice).
The two key principles here are freedom and equality. Men and women should be legally equal (even if nature is not so egalitarian) and in their equality they should be free. Freedom, however, trumps equality. It's just spiteful to make some people less free out of equality.
For women, I agree with one strain of logic, if not the actual constitutional absurdities in Casey (or Roe), that result in reproductive choice - I just disagree on the act of abortion. Killing your child is beyond the reach of freedom or choice. If abortion were replaced by some method to safely remove a fetus and let it grow in an incubator, then I'd be on-board - both morally and constitutionally, that seems like a good thing.
Women have a right to control their bodies, and the Constitution clearly protects general liberty in the 5th, 9th and 14th Amendments. The absurd argument that somehow there should be a state choice - either to let people murder or to let people be murdered - is nothing more than a stupid argument designed for rhetorical purposes to make the speaker seem moderate or reasonable. Women have reproductive rights, they just can't kill pregnancies.
Men also have reproductive rights, and they also can't kill their pregnancies.
The solution here requires us to look at parental rights in general, and adoption in particular. If a parent puts a child up for adoption, then his or her rights as a parent are terminated. Adoption also terminates parental obligations. Unlike free speech, privacy from seizure, or the right to counsel, parental rights necessitate obligations. I don't have to do anything to have the right to free speech; though there are limits on free speech, like when and where to practice it, I don't need to fill out a form or go to weekly meetings or buy equipment to have that right. But if I didn't take my child to doctor check-ups, send him to school, or feed him properly then I could see him taken away, rightly.
If someone wishes to terminate parental rights and obligations then that should be allowed. With the loss of rights goes the loss of obligations. So an ex-parent wouldn't have a legal say over where the child went to school or where the child lived, but wouldn't have a legal obligation to pay for the child's schooling or living expenses.
It only seems fair that both parents can exercise this right, and this is especially important if the parents are not together. So either mom or dad can renounce parental rights and send the kid to the other parent, (or to family, an adoption center, anywhere with a reasonable expectation of the child's long-term safety). In this way, neither men nor women could be burdened with child or children's expenses without recourse.
The alternative, forcing people to accept the decision of the other parent with regard to child care and forcing them to fund those decisions, is noit in balance with adoption in general. It would mean that married couples could put a child up for adoption, or that single parents with custody of the child could put him up for adoption, but parents without custody couldn't also terminate rights and obligations.
The solution is not complex, whatever some might say, because all we have to do is extend existing principles to this situation. Here's the solution:
If you don't want to care for your own child, you can surrender rights and obligations whether or not you have custody of him or her.
There, simple. Granted, it may have problems but, Jesus, if the standard is whether or not a right or option might cause problems then we'd have to rethink a lot of our laws. I have the right to insult people, to demean people, to gossip, to generally be an asshole. If we only cared about social harmony then we'd pass eight million laws, turn into San Angeles and ban salt, cholesterol and cursing.
Rumsfeld v. FAIR and Unconstitutional Conditions Doctrine
by neolibertarian
The Solomon Amendment decision, where the Supreme Court upheld the act of Congress restricting certain funds from schools that disallow military recruiters, wandered into the Unconstitutional Conditions Doctrine. The Court didn't really try to mesh with the doctrine, though, as Dale Carpenter at Volokh notes.
On the case itself, the Justices came down unanimously (Alito not involved) for DoD and Congress. I agree with that outcome. But their reasoning is simplistic and unreasonable. In essence, the opinion says that the Congress has so much authority in military affairs that the Court can't say boo. Blah blah, something about an apogee, and ta-da there's no way to stop it even if the Congress had directly required recruiters without the enticement of funding in between.
I have to disagree. This is clearly a freedom of speech issue, as well as freedom of association and property rights. If the administrators or owners (usually some committee or board is the de jure owner of a university, such as trustees) want to prohibit recruiters from coming on campus, so be it. The funding is crucial to the deal. If they want the funding, they'll accept Congress' stipulations. They are then forced to choose between their commitment to not allowing recruiters from organizations that discriminate against gays, and their commitment to having more money (it's usually quite a bit).
It's unfortunate but it's the fact of things and the way it works when the government is so damned big. If you don't like the government putting its nose into our social affairs, then keep it out of our economic affairs. It's ridiculous to draw a clean line between those two categories anyway (after all, is prostitution economic or social? the answer is 'both').
So the Court was wrong to say that the military can be forced on private universities. However, since Congress has yet to exercise the power that the Court has found for it, the schools are still free to turn down the money and kick recruiters off campus.
The Unconstitutional Conditions Doctrine makes it all thorny. According to Unconstitutional Conditions, the only way the government could get somebody to voluntarily give up Constitutional rights in exchange for government action or favor is if there's a propertionality and a nexus between the abandoned right and the governmental action. Leaving aside whether that exists here, I'll address the doctrine.
I think it's ludicrous. The very basis of society and economy is that we choose to not exercise our rights or to abandon our rights all the time. I trade my right to my time and labor in exchange for compensation from my employer. I waive my right to unviolated property when I invite friends over for a party. The whole of society is full of examples of people who have rights and then either trade or waive them for a multitude of reasons. This is no different when universities grant access to the government in exchange for government money.
So I will say that the 'nexus' of UC exists because Congress makes it part of the deal. Congress says that they'll trade the money for the access, and the schools agree. And the fact that the nexus can be so easily established (at least as I argue it) makes US useless. Anything is a nexus simply because the parties consensually agree to it.
Rather than UC as written, the relevant limits should be that the action is not coerced by the government or by anyone on behalf of the government, and so long as the promised government favor or action is not already owed to the other party. Since the mere loss of funds, however critical or large, is not coercive, the only way Solomon could be unconstitutional in this formulation is if the schools had a right to the money anyway. They don't have a right to government funds, so the transaction is constitutional under these conditions.
Additionally, I'd say that the government would have to abide by 5th and 14th Amendment due process and equal protection concerns - meaning that the offer of money for access wasn't discriminatory in application (like if the race were a factor).
Of course, there's also the more general question of whether Congress has the power to distribute these funds at all for this purpose. Article I, Section 8, clause 12's power to "raise and support Armies" would be the closest thing to authorizing it, if anything does. But that's another question, and ultimately one far less intricate (either you think the Constitution is mostly constraining an otherwise empowered government, or you think the Constitution is mostly empowering and otherwise powerless government, and that becomes the end of the debate).
But as for Unconstitutional Conditions, I think it's without textual basis and defies even elementary rights theory. But the government doesn't get a free ride to push the military on private citizens or organizations, either.
Unnecessary Noise
by neolibertarian
Volokh makes a point about punishing a driver for honking at a perceived abuse of police power (usiung sirens to get through a red, then turning them off after the intersection), arguing that the honking may be punishable as unnecessary noise, but the correcting of a police officer isn't punishable. I agree with the second point; criticizing government agents is in fact a constitutionally protected right, and is the foundation for our legal and trial rights - it's why we have a right to defense counsel, to question the police, denigrate their motives, insult their actions, impugn their competence, and generally oppose their efforts to convuct the accused.
But I don't think 'unnecessary noise' is itself punishable. The officer here was arbitrary, thin-skinned and a bit of an asshole. He's obviously on a power-trip and clearly had no emergency to go to (why ticket a guy for HONKING if the sirens were taking him to an emergency). What happened is he didn't want to be challenged and he was pissed off that somebody honked at him for it. If he had been a regular person instead of an arrogant cop, then he'd just have to shake it off like the rest of us. Like an adult.
But the fact that noise is unnecessary doesn't seem to me to be reason for a ticket. If the guy had yelled at a louder decibel level - for any reason - would he get ticketed? Would a pedestrian? Assume it lasts a single full second and then ceases - is that honestly ticketable? I'd say not.
But what makes me think that 'unnecessary noise' isn't ticketable is that it doesn't take into account intent. If I honk by accident, hitting my elbow on the wheel, I've created unnecessary noise (assume it's the same volume and duration as any other honk) but nobody this side of Singapore would think to punish me for it. If my car horn malfunctioned somehow, causing it to honk, it would be my fault since it came from my car (just like if my bumper falls off and causes a crash I could be held liable); but that unnecessary noise hardly seems ticketable.
I think honking only really seems like it should be open to punishment if it somehow communicates violence (if the horn has been replace with a verbal message, for example) or if it's clear that the honker refuses to stop even when asked.
The fact that a noise is unnecessary doesn't itself rise to the level of a ticketable offense, in my mind.
Michael Morales
by neolibertarian
For the third time in three months, and the 14th time since 1978, the state of California will execute someone. Michael Morales is a totally deserving candidate, having beaten a high school girl, raped her unconscious body, and stabbed her. Here is the CA Depart of Corrections description [PDF] of his crime. Emphases mine.During early 1980, Ricky Ortega, 19, and Randy Blythe, 17, were homosexual lovers. Blythe met Terri Lynn Winchell, 17, in 1980 and became her heterosexual lover. Winchell did not know about the homosexual relationship between Blythe and Ortega, but Ortega knew about the relationship between Blythe and Winchell. Ortega became upset about the relationship.
Ortega and Blythe had a stormy relationship characterized by Ortega’s threatening reactions to Blythe’s attempts to end it. He was also openly hostile to Winchell. He was overheard threatening to kill himself or Blythe.
In late 1980, Ortega told Glenda Chavez that he was angry at Winchell for accusing him of being a homosexual and for her calling him “gay.” Ortega and his cousin, Michael Angelo Morales, 21, plotted to murder her as “pay back” for her remarks.
In the weeks before the murder, Ortega set up a ruse to trick Winchell into believing that he wanted to make amends and become her friend. In the meantime, Morales “practiced” how he was going to strangle Winchell and on the day of the murder told his girlfriend, Racquel Cardenas, how he was going to do Ortega a favor and strangle and “hurt” someone.
On January 8, 1981, Ortega called Morales and told him he was driving Winchell to Morales’ apartment. Ortega lured Winchell into accompanying him and Morales in Ortega’s car to a remote area near Lodi, California. There, Morales attacked Winchell from behind and tried to strangle her with his belt. Winchell struggled and the belt broke in two. Morales then took out a hammer and repeatedly hit her in the head with it. She screamed for Ortega to help and tried to fight off the attack, ripping her own hair out of her scalp in the struggle. Morales beat Winchell into unconsciousness, crushing her skull in several places and leaving 23 identifiable wounds in her skull.
Morales took Winchell from the car and told Ortega to leave and return later. Ortega left. Morales dragged Winchell face-down across the road and into a vineyard. Morales completed an act of sexual intercourse with her unconscious body. He started to leave, but went back and stabbed her four times in the chest to assure her death. Winchell died from both the head and chest wounds. Her body was left in the vineyard naked from the waist down with her sweater and bra pulled up over her breasts.
Within two days, Morales was arrested at his residence. The police found Morales’ broken belt with Winchell’s blood on it hidden under a bedroom mattress. The police found three knives and the hammer hidden in the refrigerator vegetable crisper. The hammer had traces of Winchell’s blood on it. The police also found blood-stained floor mats from Ortega’s car in the trash. Winchell’s purse and credit card were also in the house. Ortega’s blood-spattered car was impounded. Morales had used $11 from Winchell’s purse to buy beer, wine, and cigarettes on the night of the murder.
Not only is he a violent, aggressive criminal, he was horrible at hiding the evidence. Somebody never watched the Godfather Part I. Leave the gun, take the cannoli.
Morales is a bad person, and it's a good thing that he's going to be dead. That'll be more than twenty-five years longer than Terri Lynn Winchell lived.
Interestingly, his lawyers argued that the lethal injection is inhumane. They got some court to agree, and as such Morales will be drugged so he won't be subjected to the injection directly. There's a bit of a controversy over whether this presents an ethical dilemma for the anesthisiologist. I think it clearly doesn't, since he or she is both helping and doing no harm. Just because the doctor is participating in the death penalty isn't damning in and of itself any more than army medics and navy docs are Hippocratic hypocrites for participating in war. The doc who drugs Morales will be helping Morales and not doing harm, so long as he doesn't do the lethal injection. Of course, some doctors are performing euthanasia and assisted suicide, which are explicitly prohibited by the Hippocratic Oath, so whatever.
Presidential Authority: Means vs. Intent
by neolibertarian
The Bush Justice Department and Administration proxies are arguing that the wiretapping of international communications crossing US lines is justified - despite FISA (and the 4th Amendment) - because of the president's Article II authority to defend the country from attack.
That's interesting, because they're claiming a concrete, controversial power to completely ignore warrants and the incredibly weak FISA law, based on a vague imperative.
Now first of all, let's remember the 4th Amendment. Remember that one? Well, apparently Democrats don't because they've been pushing FISA as the legal alternative to the president's authority - even though FISA was created explicitly to monitor unconstitutional searches of FOREIGNERS ONLY. That way diplomats and foreign journalists, etc., could be searched for evidence of espionage and expelled from the US. But since the invasion was unconstitutional the evidence couldn't be used in criminal court, and the target had to be a foreign national inside the US. Both those restrictions on FISA warrants are gone, as well as the right to have a chance to contest a warrant before third parties (banks, travel agencies, whatever) had to turn over your records. So this incredibly weak warrant requirement has to go through a notoriously pro-government court, and that's the Democrats' favored alternative.
Well, the Fourth Amendment makes it pretty clear that only a person can do something to limit or impair his Fourth Amendment rights - either expressly by permission or criminally upon probable cause.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nothing about being a foreigner, nothing about war or national security. The framers were very good about being explicit, so if they only meant citizens then they would have said that. Instead they said people, a plural of person. And if they wanted it to be limited, they would have written in more situations where it could be limited. In fact, the main thrust of the Fourth Amendment is to describe when and how privacy may be violated, so this is the perfect place for a wartime exemption.
They wrote in an exemption to habeas corpus, and to the Third Amendment; if they wanted an exemption for warrants in time of war, why couldn't guys like Mason and Madison just look at the Third Amendment? Obviously, they weren't intending any sort of war-time exemption, they just wanted to forbid a return of the terrifying writs of assistance.
But the Administration is arguing that the INTENT behind the President's actions are sufficient justification under the Constitution. That's simply absurd. What if he suspended Congress for a day with the intent of protecting the country, or what if he restricted freedom of speech for Muslim radicals, or the right of Arab-descended American citizens to bear arms, with the intent of defending the country?
The Constitution is not a psychic document; you can't close your eyes, think happy thoughts, and plow right through constitutional checks and liberties.
Good intent is a nice thing, but it's constitutionally USELESS. Intent is a social and political matter, not a constitutional one, certain Supreme Court decisions notwithstanding. The Constitution never tasks the President with defending the country explicitly, nor does it ever call to attention his intent to defend the country. The first part of the first clause in Section @ of Article II is "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." which is a hierarchical and administrative title, not a psychic or intent-based imperative.
He runs the military; that doesn't mean it's his job and his job alone to defend the country. After all Congress is the one imbued with the power to declare war and grant letters of marque and reprisal, to make the rules for capture of soldiers, to control the budget of the military, to both define and punish priacies and felonies in international waters, to make the rules governing the military, to provide for arming and then activating the militia, and to create the army and the navy. In fact, the Congress has seven separate clauses within Section 8 of Article I relating to the defense of the country and its citizens, or to the military. The general constitutional directive to 'provide for the common Defence' is given to the Congress, including the power to make legislation to execute that (and other) powers.
The President's job, according to the Constitution, is to tell the army and navy where to go after Congress creates them, arms, them, funds them, makes rules for them, and authorizes their engagement in planned conflict. The President is just the General of the Generals, and is given no other general or specific powers for defense or the military.
The President is, however, tasked with an intent in the oath of office:Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
He is tasked with defense of the Constitution, not of the country. It's Congress' job to see to practical mattters of that sort. It's the President's power to be the Administrator-in-Chief of the military, but his real job is defending the Constitution.
It's too bad Presidents are more concerned with promoting themselves to American Caesars than with fulfilling their oaths of office.
My point here is that the President's intent to do one thing or another is not constitutionally sufficient to do anything not authorized by the Constitution, let alone to override EXPLICIT restrictions on government power. However, the intent is not even granted to the President, but rather to Congress.
The President's INTENT to defend the country is no more constitutionally persuasive than New London's INTENT to improve their town through expansive use of eminent domain, or Congress' INTENT to help people by banning intrastate commerce like gun or drug sales. Sure, everybody thinks he has a great intention, but the Constitution doesn't pay attention to that. Good intent is worthless precisely because everybody claims it (and most probably have it).
The law and the Constitution are dispassionate and describe the ACTIONS which people and government agents may undertake. If we let self-declared intent become a free pass to get by the Bill of Rights, then the Constitution is meaningless.
Presidential Authority: Means vs. Intent
by neolibertarian
The Bush Justice Department and Administration proxies are arguing that the wiretapping of international communications crossing US lines is justified - despite FISA (and the 4th Amendment) - because of the president's Article II authority to defend the country from attack.
That's interesting, because they're claiming a concrete, controversial power to completely ignore warrants and the incredibly weak FISA law, based on a vague imperative.
Now first of all, let's remember the 4th Amendment. Remember that one? Well, apparently Democrats don't because they've been pushing FISA as the legal alternative to the president's authority - even though FISA was created explicitly to monitor unconstitutional searches of FOREIGNERS ONLY. That way diplomats and foreign journalists, etc., could be searched for evidence of espionage and expelled from the US. But since the invasion was unconstitutional the evidence couldn't be used in criminal court, and the target had to be a foreign national inside the US. Both those restrictions on FISA warrants are gone, as well as the right to have a chance to contest a warrant before third parties (banks, travel agencies, whatever) had to turn over your records. So this incredibly weak warrant requirement has to go through a notoriously pro-government court, and that's the Democrats' favored alternative.
Well, the Fourth Amendment makes it pretty clear that only a person can do something to limit or impair his Fourth Amendment rights - either expressly by permission or criminally upon probable cause.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nothing about being a foreigner, nothing about war or national security. The framers were very good about being explicit, so if they only meant citizens then they would have said that. Instead they said people, a plural of person. And if they wanted it to be limited, they would have written in more situations where it could be limited. In fact, the main thrust of the Fourth Amendment is to describe when and how privacy may be violated, so this is the perfect place for a wartime exemption.
They wrote in an exemption to habeas corpus, and to the Third Amendment; if they wanted an exemption for warrants in time of war, why couldn't guys like Mason and Madison just look at the Third Amendment? Obviously, they weren't intending any sort of war-time exemption, they just wanted to forbid a return of the terrifying writs of assistance.
But the Administration is arguing that the INTENT behind the President's actions are sufficient justification under the Constitution. That's simply absurd. What if he suspended Congress for a day with the intent of protecting the country, or what if he restricted freedom of speech for Muslim radicals, or the right of Arab-descended American citizens to bear arms, with the intent of defending the country?
The Constitution is not a psychic document; you can't close your eyes, think happy thoughts, and plow right through constitutional checks and liberties.
Good intent is a nice thing, but it's constitutionally USELESS. Intent is a social and political matter, not a constitutional one, certain Supreme Court decisions notwithstanding. The Constitution never tasks the President with defending the country explicitly, nor does it ever call to attention his intent to defend the country. The first part of the first clause in Section @ of Article II is "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." which is a hierarchical and administrative title, not a psychic or intent-based imperative.
He runs the military; that doesn't mean it's his job and his job alone to defend the country. After all Congress is the one imbued with the power to declare war and grant letters of marque and reprisal, to make the rules for capture of soldiers, to control the budget of the military, to both define and punish priacies and felonies in international waters, to make the rules governing the military, to provide for arming and then activating the militia, and to create the army and the navy. In fact, the Congress has seven separate clauses within Section 8 of Article I relating to the defense of the country and its citizens, or to the military. The general constitutional directive to 'provide for the common Defence' is given to the Congress, including the power to make legislation to execute that (and other) powers.
The President's job, according to the Constitution, is to tell the army and navy where to go after Congress creates them, arms, them, funds them, makes rules for them, and authorizes their engagement in planned conflict. The President is just the General of the Generals, and is given no other general or specific powers for defense or the military.
The President is, however, tasked with an intent in the oath of office:Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
He is tasked with defense of the Constitution, not of the country. It's Congress' job to see to practical mattters of that sort. It's the President's power to be the Administrator-in-Chief of the military, but his real job is defending the Constitution.
It's too bad Presidents are more concerned with promoting themselves to American Caesars than with fulfilling their oaths of office.
My point here is that the President's intent to do one thing or another is not constitutionally sufficient to do anything not authorized by the Constitution, let alone to override EXPLICIT restrictions on government power. However, the intent is not even granted to the President, but rather to Congress.
The President's INTENT to defend the country is no more constitutionally persuasive than New London's INTENT to improve their town through expansive use of eminent domain, or Congress' INTENT to help people by banning intrastate commerce like gun or drug sales. Sure, everybody thinks he has a great intention, but the Constitution doesn't pay attention to that. Good intent is worthless precisely because everybody claims it (and most probably have it).
The law and the Constitution are dispassionate and describe the ACTIONS which people and government agents may undertake. If we let self-declared intent become a free pass to get by the Bill of Rights, then the Constitution is meaningless.
Progressive Failure
by neolibertarian
The major issue of progressives the last six years has been opposing Bush. That goal more than any other prompts the focus of the leftwing blogs, and that one pushed the same people who supported Clinton's moves against Kosovo and Iraq to preach against Bush's moves against Iraq.
The thwarted filibuster of Alito was a necessary move for the anti-Bush left, because this may be the last SCOTUS nomination Bush ever makes (and because there might not be another one for three or four years, making this is the final word on the judicial war for a while). Even though they uncovered no shady dealings, or shocking comments - just the resume of a mainstream conservative - they needed to filibuster him. They refused to allow Bush another easy victory after Roberts.
The problem is that Roberts and Alito were very good picks and didn't have any real flaws aside from being Bush-appointed conservatives.
The fact that both of them got through, Roberts without a filibuster and Alito with a failed filibuster, means that the judicial-left interest groups like People for the American Way did not earn their donations. Will they get to play a front-place role next time around? It's hard to tell, but considering their lack of effectiveness, it's very possible they won't. Conversely, maybe more people will give in an attempt to influence the next court fight. I'd say that they didn't get to play a very big one with Roberts or Alito, and their only real area of competence is motivating the grassroots and talking to the media. But it doesn't take a big organization to talk to the media, and with the internet around it's very easy to organize huge numbers of people very cheaply. All it takes is an e-mail newsletter, a group blog and a website with the propaganda listed on it. I think the left pressure groups are going to either reorganize around the internet or see themselves replaced by bloggers with initiative - the latter group eclipsed them this time around.
What seems clear is that the judicial left lost today, in part because they didn't have much to fight over.
Alito Confirmed
by neolibertarian
The Senate has just finished voting on the confirmation of Alito; the vote was 58-42, making him the next Associate Justice.
I have to admit, I like the guy and he seems to have one of the best resumes for a nominee in a long time, but I'm not able to be as thrilled as Republicans are. I think he deserved confirmation, the Democratic filibuster attempt at best counterproductive, and that the attacks on him were all overblown and almost all groundless. But still, it's hard to think this is some victory for what I want to see on the Supreme Court.
Aside from the fact that every Justice is a roll of the dice (O'Connor and Souter were both accused of being anti-Roe, with O'Connor being attacked as some right-wing monster), Alito just doesn't seem to pay attention to my personal, 9th-Amendment-heavy, perspective on constitutional jurisprudence.
So I'm glad he got in, but I don't consider it that much of a victory for my beliefs. O'Connor, if nothing else, was a fairly reliable vote for giving the states a role in policymaking. Here's hoping Justice Alito can show her up on that front.
CAP & Swifties
by neolibertarian
Orin Kerr asserts a direct, structural similarity between the CAP and Swifties attacks:The controversy over Alito and the "Concerned Alumni of Princeton" reminds me a bit of the controversy over John Kerry raised by the Swift Boat Vets for Truth in the 2004 election. The basic idea underlying the claim seems to be roughly the same: Decades ago, the nominee did something or took a position that reveals a very deep and extremely serious character flaw. Granted, the nominee has shown only very subtle hints of this character flaw since then. But, critics say, that's only because he is super-clever at disguising just how evil he is. If we look really hard, we can realize that the nominee's impressive record is really a facade hiding something very sinister. That was the bogus claim about John Kerry in the 2004 election, and that is the bogus claim about Samuel Alito now.
To me this seems like a really poor comparison, if only because of the nature of the history being attacked.
Kerry's service record was attacked, after he placed it at the center of his character. The media pumped it up, the convention played excerpts about it all night, they had a movie he had shot himself on a 1970s video camera, we heard all the time about his service and his medals, analysts and pundits suggested that his Vietnam service made him immune to charges of weakeness on Iraq or terror, and in the convention he started his speechby calling himself Lieutenant Kerry, and "reporting for duty."
On the other hand, Alito only ever bragged of CAP membership, that I've heard of, on an application for a job two decades ago. In the hearings he's explained that his connection was trifling, and that seems to be supported by facts (no writings of his showed up in the newsletter, and he was never a board member, meaning the only thing he could've have done beyond joining is possibly made a financial contribution).
Kerry's Vietnam record was put at the center of his campaign, by himself and by media analysts. It was perfectly open to criticism. If he wanted to trade on his Vietnam record then it needed to get scrutiny.
However, it's also quite different in my estimation because Kerry was trying to say something about his character in a nonpolitical way, even though it was for political purposes. He wanted to show various personal traits like loyalty, courage and leadership. Alito was, in 1985, trying to beef up his conservative political credentials, not to make himself seem to have some valuable personality traits. The attacks on Kerry and Alito, correspondingly, are different because the Swifties attacked Kerry's character (implying or stating that he was a liar, a hypocrite, a coward, and so forth) while the Democrats want to make Alito look bad in his political views, suggesting he's secretly a hyperconservative.
The vehicle for the attacks were also not very comparable. The Swifties had a bunch of people acting as witnesses of sorts, saying that they knew Kerry from Vietnam and he would make a bad leader (though I believe it was shown at least a few had no direct contact with kerry in Vietnam, making it hearsay). The Democrats are trying to attack Alito without any witnesses of his sexism or racism, just that he might have been connected to an organization that seems to have included some such people.
Again, though, the major difference is that in Kerry's case of an "impressive record [that's] really a facade hiding something very sinister," it refers to his chosen primary qualification for office (Vietnam service). With Alito, the Democrats are trying to say that there was some huge problem based on one small piece of history that played essentially no part in Alito's judicial record. Now, if there was a group of fellow Princetonians saying that Alito cheated on exams and papers and that he didn't deserve some of his academic credits, it would be awfully similar.
I'm also far from convinced that all the attacks on Kerry's Vietnam service record were false or undeserved.
Patriot Act Reauthorization
by neolibertarian
Here's hoping that the Patriot Act is not reauthorized, considering the way it sidesteps critical Fourth Amendment protections, and is at best neutral toward the war on terror. Most of the provisions are either innocuous or unsurprising, of course.
But the idea that we can have a major lasting effect on terror by weakening the Fourth Amendment is ridiculous. My stock response is that criminals in maximum-security prison, who can be searched at literally any time, are still able to operate drug rings in prison. If we can't control these people in strictly limited environments without any 4th Amendment rights to speak of, how is a little rollback on the 4th Amendment supposed to make a dent on a far less overt activity? Drug activity is a lot easier to notice because it requires interaction and a customer base, and all those customers are potential roads back to the producerts and distributors (especially since drug use often produces very visible results for us all to see). But terrorism only requires a quiet stockpiling and production of weapons, not the recruiting of customers or advertising that goes along with it.
It would take an enormous leap in Big Brother powers to think we could stomp out drug activity in the country by police action, and so it would take even more police powers to stop terrorism that way.
We need to focus on fighting terrorism beyond our borders, where it lives. Fighting the existing terrorists where they train, where they get funding, and where they're created. Most of our efforts need to be focused there, because it is incredibly difficult to get terrorists once they're here. It doesn't take a lot to hide your activities, and I'm not prepared to simply round up everybody with 'Mohammed' in his name.
The most effective thing the Israelis have done to stop terror lately is the security fence, because it prevents terrorists from getting in. The principle is the same: stop them before they get here.
Of course, all this is in addition to the fact that fiddling with the Fourth Amendment (like changing the warrant process, or greatly expanding FISA powers) is unconstitutional, at least without an amendment to the Constitution.
Just for review for those who think there aren't constitutional violations within the USAPATRIOT Act (like, say, Hugh Hewitt, who appears to be emotionally invested in favor of nearly anything the President does) let's remember the changes to the Foreign Intelligence Surveillance Act. Though it was established to violate the privacy of foreign nationals within US borders (such as journalists or diplomats) it could only be used to expel somebody, not to convict them. Since we broke the Fourth Amendment to spy on them (out of fear they were themselves spies) we couldn't prosecute them, only expel them if they were guilty. Moreover, the records checked would be held by a third party (like a bank, if it's bank records that we'd break the 4th to view) and they wouldn't have to turn over the records until the targeted person had a chance to contest the warrant.
The changes to FISA mean that now, it applies to citizensa as well as non-citizens. It also applies to criminal cases (instead of being off-limits to the FBI, DOJ and others, the CIA is now obliged to turn such information over), not just to expulsion of spies. And the third parties who hold the records are prohibited from telling you, rather than required to do so. Your ability to contest the warrant is intentionally eliminated. In other words, no privacy, no due process.
It gets worse, of course, since the Patriot Act and other laws have brought secret judges, secret warrants and secret searches into play. This is entirely inappropriate, because free government dies behind closed doors, to paraphrase somebody smarter than myself.
This is not just about the Patriot Act, it's about the unconstitutional and unnecessary powers that the government has granted itself at the expense of our freedoms.
Conflicting Hawaii Decision
by neolibertarian
The Hawaii Supreme Court overturned the manslaughter conviction of a mother for killing her baby by using crystal meth. Apparently she used it the day of his birth (maybe it catalyzed his birth? I dunno) and he died of it two days later, with meth all through his system.
The ruling is problematic in two ways. One, there's significant overhand here beyond the womb. Though the act in question was during pregnancy (the last possible part of the pregnancy) the death in question was that of a newborn baby - something no state has yet denied the rights of life or personhood. This area is generally light in decisions because very few pregnancies advance to this point without either being wanted or being aborted. It's also very strange that a drug user (presumably an addict) wouldn't have miscarried earlier due to her habit. So this doesn't really conflict with a lot of other rulings, just with common sense. If your newborn dies because of something you did directly before birth, does that mean you didn't do anything punishable to the newborn? The real conflict here is with the illogic of personhood law in this country.
What it far more clearly conflicts with is the decision of many states (most recently and prominently, California and the federal Laci and Conner Law) is the upheld convictions for murderers who attack pregnant women and kill the fetus as well. In California, if you kill a woman cause the death of her fetus (meaning a pregnancy of at least eight weeks gestation) then that's two counts of murder.
But if there's an exception for mothers to kill their own babies (though the HI case was manslaughter, not murder) then it means fetuses are more like valuable property or an investment; you can destroy yours but other people can't. Of course, I HIGHLY doubt that any reasonable court would let that logic stand, because it would be the return of slavery in concept. It mean literally mean that one human was owned by another. Guardianship is one thing, but the power of life and death over our children is never part of guardianship, only the more degrading instances of human slavery.
The conflict ought to come before the Supreme Court, so that they can lay down a little order here. Maybe with Roberts and Alito they'll actually come to their senses and at least decide on a more concrete definition and bright line for personhood.
This, by the way, is why simply repealing Roe - as a lot of abortion opponents advocate - would be insane. It would be like pushing the country back to the 1850s except with abortion instead of slavery. We can't have such radically different conceptions of personhood, especially within the same country and across neighboring states. As Seward called it, that's a recipe for an "irrepressible conflict" because sooner or later it will have to be all one or all the other.
No, personhood has to be standardized across the country because the Constitution protects it. This Hawaii case is just another example of how unclear the Supreme Court has left it all these years by describing when abortion can happen, instead of explaining when a human's rights begin.
Conflicting Hawaii Decision
by neolibertarian
The Hawaii Supreme Court overturned the manslaughter conviction of a mother for killing her baby by using crystal meth. Apparently she used it the day of his birth (maybe it catalyzed his birth? I dunno) and he died of it two days later, with meth all through his system.
The ruling is problematic in two ways. One, there's significant overhand here beyond the womb. Though the act in question was during pregnancy (the last possible part of the pregnancy) the death in question was that of a newborn baby - something no state has yet denied the rights of life or personhood. This area is generally light in decisions because very few pregnancies advance to this point without either being wanted or being aborted. It's also very strange that a drug user (presumably an addict) wouldn't have miscarried earlier due to her habit. So this doesn't really conflict with a lot of other rulings, just with common sense. If your newborn dies because of something you did directly before birth, does that mean you didn't do anything punishable to the newborn? The real conflict here is with the illogic of personhood law in this country.
What it far more clearly conflicts with is the decision of many states (most recently and prominently, California and the federal Laci and Conner Law) is the upheld convictions for murderers who attack pregnant women and kill the fetus as well. In California, if you kill a woman cause the death of her fetus (meaning a pregnancy of at least eight weeks gestation) then that's two counts of murder.
But if there's an exception for mothers to kill their own babies (though the HI case was manslaughter, not murder) then it means fetuses are more like valuable property or an investment; you can destroy yours but other people can't. Of course, I HIGHLY doubt that any reasonable court would let that logic stand, because it would be the return of slavery in concept. It mean literally mean that one human was owned by another. Guardianship is one thing, but the power of life and death over our children is never part of guardianship, only the more degrading instances of human slavery.
The conflict ought to come before the Supreme Court, so that they can lay down a little order here. Maybe with Roberts and Alito they'll actually come to their senses and at least decide on a more concrete definition and bright line for personhood.
This, by the way, is why simply repealing Roe - as a lot of abortion opponents advocate - would be insane. It would be like pushing the country back to the 1850s except with abortion instead of slavery. We can't have such radically different conceptions of personhood, especially within the same country and across neighboring states. As Seward called it, that's a recipe for an "irrepressible conflict" because sooner or later it will have to be all one or all the other.
No, personhood has to be standardized across the country because the Constitution protects it. This Hawaii case is just another example of how unclear the Supreme Court has left it all these years by describing when abortion can happen, instead of explaining when a human's rights begin.
LSAT
by neolibertarian
Saturday I'll be taking the December LSAT (most people take it in October). Since the nearest test center is two hours away, and the testing time is no later than 8:30, I'll spend the night in a hotel. Why do I bother? I like the law, but I don't even like lawyers: they come off as arrogant, pedantic, pompous, irrelevant, self-involved, poor communicators.
Of course, even if I just take the LSAT and don't become a lawyer, at least I can brag to myself that I got a good score.
Anyway, no more blogging. I have to study these unnecessarily hard logic problems, even though I've heard lawyers make the most idiotic arguments. If they asked me, lawyers need more verbal and historical skills, not logic problems and mathematical ability.
No Clemency For The Unapologetic
by neolibertarian
There's a huge celebrity-led movement for Arnold to grant clemency to Tookie Williams. His execution is coming up, and on the tails of Jamie Foxx's portrayal of Williams in the movie Redemption, Hollywood and activists are abuzz with energy and advocacy. (see: MM, VC)
The problem is not just that Williams was convicted of four brutal, cold-blooded homicides. In 1979 he executed a convenience store clerk in the back of the head with his sawed-off shotgun and later laughed about it in front of a witness, mocking the sound of his dying victim. At another time, he murdered a Taiwanese couple and their daughter with a sawed-off shotgun, destroying half the girl's face. He called them Buddhaheads and took what money they had on them. Tookie was convicted of these four murders, but even if he'd only killed the conviencie store clerk that would still count as "murder one with circumstances' and be sufficient as a capital crime in most death penalty states (including California).
The real problem for clemency is that Tookie has still not admitted guilt 24 years after his conviction, nor has he been remorseful or contrite, or made apologies to his victims. The closest he camer to it was denouncing gangs, trying to get kids out of gangs, and apologizing for the atrocities he and gang members committed against black people. The three Taiwanese victims apparently can go to hell, because they're not black. Good message, there.
How can he be redeemed if he refuses to admit real guilt and apologize? I wouldn't even think that he should get clemency if he did apologize for his murders (it would look far too much like an attempt to save his life) but at least it would be a stronger argument. The only arguments going for him now are: 1) if you oppose the death penalty prima facie (I do not); 2) the fact that he counsels little kids on how gangs work in order to deter them from joining a gang (it sounds almost like a gang recruiting session, he'd be better off talking to the cops and testifying against his former murderers-in-arms); and 3) the fact that he had a movie made about him called Redemption (lots of bad guys have movies made about them, otherwise Leni Riefenstahl would just be a former German actress).
This is just another one of the left's causes. Whenever a minority finds himself in prison, and he's somehow famous, he can often find himself the cause of socialists and activists.
That's how Leonard Peltier, who killed federal agents in North Dakota, was nominated as the 2004 Presidential candidate for the Peace and Freedom Party. Peltier was a fugitive from justice, evading prosecution for the attempted murder of an off-duty cop in milwaukee. He mistakenly thought the FBI guys were there for him, when they were actually looking for Jimmy Eagle, in connection with the torture and robbery of two farm hands. Because Peltier wasn't just a murderer, but a murderer connected to the American Indian Movement, socialists try to suggest that the government's real intention is to frame him in order to silence him.
It's also why lefties the world over clamored for Mumia Abu-Jamal (Wesley Cook) to be freed. He was convicted of murdering a Philly cop, but his death sentence was commutted in 2001, while his conviction was yet again reaffirmed. Because Mumia was a Black Panther, socialists like to assert that the FBI framed him (in part because the FBI actually did frame people, including Black Panthers) even though he's received numerous trials and appeals and they've all seen his conviction upheld. There's a lot less action around Mumia since his capital sentence was commutted to life in prison (the international community is mostly around to oppose the US death penalty) but being a famous Black panther can hekp get you out of the rap for murdering somebody, even a cop.
And so it is with Tookie, who doesn't have the claim of innocence on his side. His conviction is not disputed wildly by socialists, as Peltier's and Cook's are. They just want to keep him alive.
Well, he can't possibly deserve clemency until he apologizes.
con·trite
adj.
- Feeling regret and sorrow for one's sins or offenses; penitent.
