Thursday, June 26, 2008
Wednesday, June 25, 2008
Tuesday, June 24, 2008
"Man Without a Party
The Great and General Court of the Commonwealth of Massachusetts is
considering passing a "Jessica's law." Named after 12-year-old Jessica
Lunsford, who was raped and murdered by a repeat sex offender, the
proposed law would require a mandatory 20-year prison sentence for
anyone convicted of raping a child under 12.
The Boston Herald reports that Rep. James Fagan is a critic of the legislation:
Fagan, a defense attorney, infuriated victims' rights
advocates during a recent House debate when he said he would "rip
apart" 6-year-old victims on the witness stand and "make sure the rest
of their life is ruined."
In a fiery soliloquy on the House floor, Fagan said he'd
grill victims so that, "when they're 8 years old they throw up; when
they're 12 years old, they won't sleep; when they're 19 years old,
they'll have nightmares and they'll never have a relationship with
Fagan did not return calls seeking comment.
What political party does Fagan belong to? The Herald doesn't say, but we'll give you three guesses."This would be a great and readily doable research project. All you would have to do is have one set of coders classify as favorable or unfavorable and another note the number of mentions of the subject politician's party, ranging from 0 on up. You could analyze be newspaper and party affiliation of the political figure. It seems so obvious that I am afraid that someone has done it before.
Samantha Powers calls for intervention under the "responsibility to protect" doctrine, but this is not on because the "international support" isn't there. No one seriously denies what is going on or who is responsible. It is just that the third world thugs and the people that profit by them in China and Russia (to name only the biggest apologists) don't want to go along. Can't have the precedent set that murdering your own people in mass gives someone an excuse for undermining your sovereignty.
It has been pointed out by many, most recently by Bret Stephens, that this responsibility to protect is a lot like the old "White Man's Burden" of Rudyard Kipling. But Kipling's doctrine was much more realistic. He knew that the reward for doing the right thing was "The blame of those ye better, The hate of those ye guard." The modern do-gooder insists on being loved as well. The international community won't intervene with out the permission of the murderers.
Monday, June 23, 2008
I take seriously the following observation written by Rebecca West in Black Lamb and Grey Falcon
shortly before the outbreak of World War II: “English persons…of
humanitarian and reformist disposition constantly went out to the
Balkan Peninsula to see who was in fact ill-treating whom, and, being
by the very nature of their perfectionist faith unable to accept the
horrid hypothesis that everybody was ill-treating everybody else, all
came back with a pet Balkan people established in their hearts as
suffering and innocent, eternally the massacree and never the
This is a nice example of belief systems coloring perception that is a relevant today as it was 100 years ago. Read the whole thing. The title of this entry links to the article.
Sunday, June 22, 2008
Residents were asked to help name the new developments and consult on the architectural plans. Yet to move back in, residents had to meet strict criteria: if they were not seniors, they had to be working, or in school, or on disability. Their children could not be delinquent in school. Most public-housing residents were scared off by the criteria, or couldn’t meet them, or else they’d already moved and didn’t want to move again. The new HOPE VI developments aimed to balance Section8 and market-rate residents, but this generally hasn’t happened. In Memphis, the rate of former public-housing residents moving back in is 5 percent.
Saturday, June 21, 2008
LAST week’s Supreme Court decision in Boumediene v. Bush settled a key
constitutional issue: all prisoners detained at Guantánamo Bay are
constitutionally entitled to bring habeas corpus in federal court to
challenge the legality of their detention.
This 5-4 decision was correct. The conservative justices in the
minority were wrong to suggest that the decision constitutes reckless
judicial intervention in military matters that the Constitution
reserves exclusively for Congress and the president. (Disclosure: I
joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)
This seems a rather glib statement in that there is virtually no record in the english speaking world or enemy combatants captured by the military being granted habeas corpus rights. Even the German spies caught on our soil were handed over to the military without much ado.
Yet Boumediene is rich in constitutional ironies. In addressing
whether non-Americans detained outside the United States are entitled
to habeas corpus, the court passed up an opportunity to clarify the
law, and instead based its reasoning, flimsily, on a habeas corpus case
that was decided just after World War II. This is too bad, because
issues as important as habeas corpus should turn not on fancy
intellectual footwork but on a candid appraisal of the relevant facts
and legal principles.
At the core of the dispute in Boumediene
is the Constitution’s suspension clause: “The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of rebellion
or invasion the public safety may require it.” Unfortunately, the text
neglects to specify the grounds for granting habeas corpus. And
historical precedent is inconclusive on the question of when it should
be available to aliens held in American custody outside the United
In Johnson v. Eisentrager, in 1950, a case involving illegal German
combatants from World War II, the court held that citizens could bring
habeas corpus whether they were detained in the United States or
abroad. Aliens, on the other hand, had the right only if they were
detained within the United States. In writing the Eisentrager decision,
Justice Robert Jackson mentioned the practical and financial
difficulties of prosecuting enemy aliens overseas, but gave them little
Now, in his majority opinion in Boumediene, Justice
Anthony M. Kennedy has made that minor issue in Eisentrager into a key
element of the case, acknowledging that the government may have to go
to some trouble, and expense, to ensure that the prisoners at
Guantánamo are able to challenge their detentions. Boumediene need not
have rested on this sleight of hand.
Nothing in the suspension
clause distinguishes citizens from aliens. Likewise, the due process
clause extends its constitutional protections to all “persons,”
citizens and aliens alike. If the conditions for suspending habeas
corpus are identical for citizen and alien, so too should be the
conditions for applying it. If citizens overseas are entitled to habeas
corpus, so are aliens. Viewed this way, the court did not need to
decide whether or not Guantánamo was American territory. Its ambiguous
status no longer matters. Eisentrager disappears on originalist
Overruling Eisentrager on this point would not routinely entitle
everyone to habeas corpus all the time. Enemy prisoners of war are
never granted it, either in the United States or abroad. What matters
is whether a prisoner is or is not an enemy combatant.
The defendants in Eisentrager, German war criminals, admitted being
enemy combatants. The six plaintiffs in Boumediene, accused of plotting
an attack on the American Embassy in Bosnia, claim they are not. They
should be entitled to challenge both the government’s definition of an
enemy combatant and the factual basis of their arrest. And they should
be able to do so, as the court stressed, under standard habeas corpus
procedures that allow them to present evidence and confront witnesses,
and not under the paltry procedures outlined by the 2006 Military
If found to be enemy combatants, they can be
held for the duration of the war and interrogated, if desired, as any
other detainees. If not, they must be tried for some particular offense
The defendants’ entire case would collapse if the
Bush administration were prepared to offer substantial evidence of
their enemy combatant status, sparing everyone unneeded uncertainty and
expense. Boumediene v. Bush is not a license to allow hardened
terrorists to go free. It is a rejection of the alarmist view that our
fragile geopolitical position requires abandoning our commitment to
preventing Star Chamber proceedings that result in arbitrary
the star chamber rhetoric is out of place. the problem with the star chamber proceedings were that they made domestic dissenters their target. In war great masses of people are killed by what amounts to star chamber proceedings. why be inconsistent? If the courts are going to decide who can be held why should they be silent on who can be killed? why aren't courts deciding where we can bomb and when we can go to war in the first place?
But I get behind myself. More and more they already are.
Here are some more sensible arguments from Andrew McBride. It reminds me of a class I had where a student, a conservative who was assigned taking the liberal side in the Hamdi case, found himself backed into the absurd position of defending the rights of German POWs captured in WWII to habeas corpus. I remember us all admiring his ability to defend the proposition with a straight face. Yesterday's reductio absurdum is today's brave advance for civil rights.
Also check out professor Bainbridge's discussion of Epstein.
Of course the Australian government isn't going to just sit around and do nothing. they are going to institute a system of collective rewards for communities that lose weight. Get your fatso percentage down to a given number and you get a sports center. It is a brilliant idea. If it works then you have thinner people. If it doesn't then the fat people will stay in doors to avoid those "there goes the lardo that kept us from getting our new sports center" looks. the country will be thinner or, what is almost as important, look thinner.
Thursday, June 19, 2008
Tuesday, June 17, 2008
The march of the Crytocracy (rule by judges) proceeds apace. It has now established that the professional judgment of Lawyers about what class of cases to focus on is above the questioning of mere elected officials. It is not just judges but now the prosecutors who are apparently to have lifetime tenure. Since there is no actual law that says this the rule will at first be enforced by setting perjury traps for minor officials tasked with enforcing political control. When politicians have been thoroughly scared off questioning their betters a future court will "discover" a new principle in the evolving practices of our system and those of other advanced democracies.
Monday, June 16, 2008
The California court that struck down the results of the referendum on gay marriage in that state have something in common--contempt for democracy, whether in its direct or representative form. In Kafka's speculative fantasy the government is dissatisfied with the people and so dismisses it and appoints a new one. Our government has finally caught up with his imagination, though our rulers wear robes.
Sunday, June 15, 2008
I just read the first few sentences of the review linked to by this post and went to free tv to watch the first bootleg. After 10 minutes I am so happy I have actually decided to pay to see the rest of it.
Thursday, June 12, 2008
Matt Welch’s complaints about McCain not having a well thought out conception of the limitations of government while blithely giving the back of his hand to McCain’s commitments on confronting excess spending and entitlements in health care and retirements demonstrate the fatuousness of libertarianism. The one man in the country perhaps with the proven commitment to confronting the real problems we face because of bloated government it brings him no credit, barely a scoffing mention. True McCain may be the one national figure with the proven record of taking on these problems and doing so with conviction and at great cost to himself, but what does that matter compared to his lack of a philosophy? We have lots of people who can nicely articulate theories of why government should be smaller. If the contest were to be decided in the seminar rooms or research universities we would all soon agree on cutting these entitlement programs I am sure. The problem is and has been for some time finding a politician with the courage to tell that to the voters. Finally we have found one and the people that claim to make the limiting of government the bedrock concern don’t care. Forget deeds, they say, we want more clever words.
But surely the reason they are tried in absentia is that they are not where they have told immigration they are going to be? Moreover, presumably the ‘trials’ are simply administrative exercises to certify that the person in question has overstayed his visa?
If you come into a country on the basis of a promise that you are leaving after 6 months and seven months comes around you know you broken the rule and your word. Saying that they should not be held liable or blameworthy for ignoring an order ignores the fact that they were tried in absentia precisely because they were not where they said they would be. They surely know they have broken the law. That is why they are tried in absentia. They are have ignored the summons or made it otherwise impossible for the summons to reach them. Given that, the person complaining about being expelled for violating an order for a trial they didn’t get to attend and whose verdict they were not informed of is in the position of a person skipping out on child support payments complaining that they don’t get a Christmas card. If you don't file a return don't complain about your refund check not finding you.
By the way, I fully agree with Robin’s analogy between US employers creating the demand for illegal aliens and johns who create the demand for prostitutes. I think that prosecuting the party that creates the demand for the illegal activity is by far a more efficient way to end an undesirable pattern of activity. More efficient and more politically costly. That is why we so seldom do it. Could a compromise on the immigration issue between liberals and conservatives be built around the liberals agreeing to any measures however draconian if we make sure that those sanctions fall on employers and other US citizens rather than the foreigners.
Sunday, June 08, 2008
Poor John McCain. No change there. No waffling or voting present either.