Natural Rights, II

(continued from just below...these shots are still from the hip, mind you)

In his comment on FindLaw, Leland writes that our Constitution is premised on Natural Law, that body of ethereal jurisprudence that breeds natural rights...those certain inalienable rights referred to by Jefferson. "Thus," he writes, "'under God' does nothing more than affirm the foundation of the very individual liberties we enjoy today."

The argument, as Rehnquist argued, is that this is not religious. It is a recognition. Then, I say, some recognitions are religious. Moreover, some affirmations coerce our beliefs.

I can hear the potential readers' dissent right now:

If I believe that the importance of a strong establishment clause is in protecting our freedom to dictate our own conscious, and to follow our religious pursuits without coercion from the state, from where does this liberty arise?
In other words, when we speak in favor of a "freedom" of speech, a right to privacy, and a right to control your body's reproduction, what is it that establishes these rights? If the rights are merely the product of some early amendments and the judicial interpretations, how can these rights be, dare we say it, sacred?

The dissenter asks, don't you really believe in natural rights?
I'm not sure the collective response. My honest response is yes, I think.

But this is where Mr Leland and C.J. Rehnquist stop short of answering our establishment clause question. "Under God" might well establish the real foundations of our liberty. Of course, it might not. God might be the creator not only of our world and lives, but of our governmental systems that afford various liberties. God might like the Court's ruling today in support of free speech despite the dangers of porn. God might have allowed for the ruling yesterday giving terror suspects some due process. God might not exist.

The state is not to tell us the answer. This is not to say we cannot have our conclusions; indeed, we ought to seek them and act on those conclusions. The state, though, cannot coerce, endorse, demand, or entangle itself with our search.

Some affirmations are safe enough via generality and the abstract. What are the "Blessings of Liberty" in the Preamble? If there is a civic religion, it might be something of a celebration of principles we must cherish as a country but cannot collectively point the same direction when identifying the source of such principles.

When the state points to the source, the state points unconstitutionally.

Rehnquist writes that, if we are to get rid of 'under God,' must we also strike 'with Liberty and Justice for all?' No. The former points to the source- and the first amendment prohibits that. The latter points to the foundational liberties- and with those, state coercion is not only appropriate, it is needed.

Defending Public Religion
Jared Leland, an attorney at The Becket Fund for Religious Liberty, defends the 'under God' addition to the pledge in today's FindLaw Commentary. His argument is along the lines of Rehquist's, so no need to replay the themes. One graff sticks out, though.

The phrase "under God" was added at the height of the Cold War to highlight this generally-recognized conviction and to distinguish the nature of rights in America from that in Communist Russia. In 1954, Congress explicitly sought to draw a distinction between the "natural rights" philosophy shared by our Founding Fathers -- on which the Constitution is based -- and the Soviet contention that rights are endowed or withheld at the pleasure of the State.

Thus, "under God" does nothing more than affirm the foundation of the very individual liberties we enjoy today.

Mr. Leland might touch on the hub of our differences with this line: the problem of "natural rights." My hunch is, after a long and honest discussion, dissenters of "under God" will identify this as a troubling symptom of a state too willing to entwine with religion, while supporters of 'under God' will stand on this as a central thesis.
For the former- the problem of natural rights is the problem of "who's rights?" You have heard that argument before. For me, the problem is more complex. In fact, I (and I wager many of those that deny it) tend to believe natural rights exist. But, the state should refrain from identifying the source.

Hmmm...that last line needs work- but I'm off to lunch. I'll chew on it.

Duel II

The New Republic and National Review project, "Opinion Duel," opened up round II today. As mentioned earlier, I really do like this project- high quality and shout-less debates. This round is on whether Bill Clinton was a successful president, and it features Rich Lowry of National Review and John Judis of New Republic.

Tomasz Stanko

NPR's Day to Day had a fine segment today from critic David Was.


Was reviewed Stanko's latest cd, Suspended Night. Stanko is, next to Dave Douglas and Ron Miles, amongst my favorite of today's trumpet players. He hails from Poland and plays with a voice that you have no choice but to take seriously. While, as Was mentions, his stylings come from Miles and his writing and scales come from Ornette, Stanko makes some very fresh music (as is so common from his label, ECM).
Was also says something important in his piece- while alot of folks hear a Kind of Blue-ish tone in Stanko's playing right now- the band really sounds more like Davis' second quintet, with Tony Williams, Wayne Shorter, et al. There's something distinct in the combined sound of that band- it was always weirdly spooky and pretty to me. Stanko achieves some similar band structures. Click on the picture to visit his page. If you're lucky, he's on tour now and may be coming to town.

Listen to the Day to Day piece here. (scroll down to the "Polish Jazz Master" bit.) The segment is full of audio teases.

The usual split?
Yesterday, the Court held, by a 5/4 majority, that Washington's sentencing rules are unconstitutional. The Washington sentencing guidlines allow judges to make findings of fact after a jury trial. Based on these findings, the judge can increase the convicted's jail time beyond the bounds of jail time set out for the crime convicted.

The Court held this violates the 6th amendment right to a jury trial. I agree. But look at this (Linda Greenhouse in the Times):

Bitterly split in a 5-to-4 decision that cut across the court's usual ideological lines, the justices continued a profound five-year-long debate over the respective roles of judges and juries in criminal sentencing.

The split went like this:

Scalia wrote the majority, joined by Justices Souter, Stevens, Thomas and Ginsburg.

O'Connor wrote the dissent, joined by Rehnquist, Kennedy, and Breyer.

Quite to the contrary of the usual lines, they played red rover and crashed into the other side. Anyway, it's always fun to read a Scalia opinion with which I agree.

God Under the First Amendment, part One: Rehnquist

Marci Hamilton, commenting on FindLaw's "writ" page, describes as "indefensible" the Chief Justice's reasoning reaching his conclusion that the first amendment allows "under God" into the Pledge of allegiance:

According to Rehnquist, the phrase is fine as long as it means "that God has guided the destiny of the United States . . . or, that the United States exists under God's authority" - for after all, in his view, who could argue with those facts?

The answer is that these are not facts, but rather expressions of a religious worldview, and if that is what "under God" means it is--without question-- unconstitutional. In this religiously diverse country, many would take issue with his statements. They disagree with it because it endorses a particular religious worldview - which is based on belief, not fact. And this kind of endorsement of religion by the government is exactly what the Establishment Clause targets.

Let's back up a couple steps. Rehnquist begins his analysis of the establishment clause by looking at one precedent, the Kennedy decision in Lee v. Weisman. There, a Rabbi led the audience of a middle school graduation in an invocation and benediction. For this prayer, a school official provided a pamphlet of guidelines for "Civic Occasions" recommending non-sectarian prayers promoting "inclusiveness and sensitivity."

The scope in which government may invoke religion, or make laws that respect religion in some way, has been fuzzy since the writing of the first amendment. In point of fact, the writers toiled over whether to insert into the phrase "respecting an establishment of a religion," before penning the more general "establishment of religion." Since that early debate on whether to prohibit a national religion (thinking assuredly of England's Anglican Church), or to prohibit Congress from directing the souls of men by writing laws tending to do so, or, even, to carefully keep separate the spheres of church and state (Locke's view could also be found in those founders' minds), courts have struggled mightily to find a line that was not clearly drawn in the first place.

In Lee, Justice Kennedy took his stab at what state actions constitute establishing religion. For Kennedy, the line exists where coercion sits. At a minimum, he writes (and I paraphrase), the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise...(for end of sentence, see below) .

In Lee, the deciding factors for the majority were: 1) a state official directed the performance of a formal religious exercise and 2) student attendance and participation were "in a fair and real sense obligatory."

Here is Rehnquist's application of that case to the Pledge:

I do not believe that the phrase "under God" in the Pledge converts its recital into a "religious exercise" of the sort described in Lee. Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase "under God" is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact noted in H. R. Rep. No. 1693, at 2: "From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God." Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.
There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. … The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase "under God" cannot possibly lead to the establishment of a religion, or anything like it.

I disagree with Hamilton's conclusion that this is indefensible. I think it is a better stance than O'Connor's concurrence, that we will soon visit. Rehnquist separates this case from Lee on the "religious exercise" prong. Hamilton writes that Rehnquist allows "under God" as fact, when in fact it is Rehnquist's and the founders' world view. I see it a bit different. I think Rehnquist is saying that, as a matter of fact, most of our founders fundamentally believed in God--be they Deists or Christians (correct me if I'm wrong, but I think these were the two biggies amongst the men at work). As such, the Pledge, and other exercise, reflect on the God-presence in the minds of those that found our Nation.

And more simply, Rehnquist asserts, this just isn't religion- but patriotism. Fair enough. But wrong.

First, Rehnquist fails to read the rest of Kennedy's sentence in Lee. It reads: "or otherwise act in any way which establishes a religion or religious faith, or tends to do so." Coercion via Lee is broader than merely a prohibition on religious exercises. We must be wary of government actions tending to coerce by establishing religious faith. Lee, then, takes the side of that broader Lockian view that fears government intrusion/contamination on religious belief.

Apart from his skinny reading of Lee, his notion of recognizing our founders' beliefs improperly allows religious coercion. Obviously, all would agree that founding a particular church in D.C. to "celebrate" the sect of our founders would be improper. We would also agree, I hope, that a D.C. politician is perfectly free to talk about God, and rely on God in her decision-making. Except for those holdouts that think the first amendment merely proibits the Church of America, most scholrs and lay people generally feel the amendment prohibits government controlling our religious leanings, much as it cannot control what we say (though both these notions are ultimately wrong--the government can prevent both speech and religious excercise under a variety of circumstances). Anyhow, for Rehnquist, the Pledge is one of many small recognitions of the pervasive belief in God in our country. And a recognition, he argues, is far from religious-indoctrination. But, such a recognition should not escape coercion. Rather, it is peer pressure in the extreme.

Of course, if I write a post urging us all toward a particular religious view, I do not violate the first amendment. But if I write a law requiring you to recognize that there is a God under whom sits our country, I am demanding you recognize a fact that tends to religion. Yes, the Pledge is patriotic. Yes, it is directed to our flag. But, in inserting those religious words, the Pledge turns the flag into a religious emblem. The flag represents, since the mid-50s, the positive belief in monotheism. You can say the Pledge, intact, with that belief or with empty speech....or you can close your lips. It does not matter. The state is telling you what we think, what the country mostly thinks, and what your founders' thought. If you don't think likewise, you can seal those lips and wonder whether, in not being able to pledge your own flag, you are really American.

That is coercion.

It is always worthwile to read writer and former Czech President Vaclav Havel. Today, he has an op-ed in the Times. His topic is Zimbabwe.

I can still remember vividly what it is like to live in a country where a party controlled by a politburo rules, where basic human rights and civil freedoms are trampled on, where public discourse is controlled by ideology that is expediently explained and applied by the chosen few. The state controls everything, even citizens' private lives. Opposition is suppressed or criminalized. Freedom of speech is seriously curtailed or nonexistent.

These feelings, however, do not exist merely in my memory. Much to my regret, they are a living reality in various parts of the world.

Zimbabwe's leaders know that the international community will cooperate with them only if they meet certain conditions. That is why they are trying to give the impression of democracy and thus escape international isolation, and why they distort the standard democratic mechanisms in order to create a semblance of citizens' participation. At the same time, they create legal instruments that violate human rights. Democratic institutions are partly controlled by the leadership, partly circumvented by it.

Judiciary

Note this point from John Judis (guest blogging at TPM):

The Justice Department attempted to dissociate itself from an August 2002 memo condoning the torture of prisoners. But it didn't dissociate itself from the memo's author, former Assistant Attorney General Jay Bybee. As TPM reader Hope P. reminded me, George W. Bush nominated Bybee as a judge on the Ninth U.S. Circuit Court of Appeals. Seventeen Democrats, citing Bybee's opposition to gay rights and his highly restrictive views of the First Amendment, opposed his nomination, but he was confirmed by the Repbulican Senate in March 2003. This man, who advocated that the United States ignore international law--and some might say, commit war crimes--now holds a lifetime appointment on the federal bench.

Remember the pomp and circumstantial announcement of the terrorism report for 2003--and how greatly terrorism deaths had declined, hence, a supposed "winning" of the war on terror? It was wrong by half.

From the Times:

The revised report said that 3,646 people were wounded in terror attacks last year, more than double the 1,593 cited in April, and a substantial increase from the 2,013 in 2002.

Secretary of State Colin Powell blamed "errors in the way the data was being added up." He said that the report "is not designed to make our efforts look better or worse."

Nonetheless, the mistakes in the report, which were acknowledged on June 10, have opened the administration up to new criticism. The report has drawn close scrutiny as a gauge of how United States policy and the Iraq war have affected the war on terrorism, and the errors have undercut the administration's repeated claim that the United States is winning that fight.

Neat column from John Dean on the 4th amendment.

Also, the judiciary committee first touched on the anti-love bill today (or, the homophobia bill...or the anti-marriage bill...or, if you must, the protection of straight marriage act).

any initial thoughts?

Understanding Standing

A lot of early press on the pledge case seemed to think a unanimous court believed that Mr. Newdow lacked standing to challenge the pledge recited daily in his daughter's school. Mr. Harvard Law, Dana Milhauser, at the New Republic thought so anyway:

Rather than rule on the substance of the issue, eight justices--the ninth, Antonin Scalia, had recused himself from the case--found that plaintiff Michael Newdow could not bring suit on behalf of his school-age daughter because he was not her custodial parent.

Such was not the case. Stevens (writer for the majority), Souter, Ginsberg, Breyer, and Kennedy dismissed on standing grounds. Rehnquist, O'Connor and Thomas all believed Newdow had standing, with Rehnquist writing out their joint opinion on that front. Each of these three went on to write (quite) diverging opinions as to why the 'under God' portion of the pledge does not violate the establishment clause (or, as we shall soon see in discussing Thomas, why it does violate the establishment clause...but why that doesn't matter).

Importantly, to the extent one buys Rehnquist's dissent on the standing issue, one wonders what the 5 Justices that dismissed on standing grounds were thinking. Here is my best shot:

Largely, Mr. Newdow lacks standing here because he cannot sue as his daughter's "next friend." This little term of art means a person that acts in court for the benefit of a child, or someone without legal rights. In the lower courts, it was established that the daughter's mother, Ms. Banning, has sole legal custody of the daughter. As such, the California Superior Court entered an order enjoining Newdow from including his daughter as an unnamed party or suing as her "next friend."

As such, Mr. Newdow no longer claimed to sue on behalf of his daughter; rather, his right to direct the religious upbringing of his child. The 9th Circuit Court of Appeals said he had standing, under Article III, to object to unconstitutional government action affecting his child.
Enter the Supreme Court, with this:

Even in cases concededly within our jurisdiction under Article III, we abide by "a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision."

So what is "standing" and why won't the Court allow cases where Article II of the Constitution says it can?
Here is Stevens:

Our standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case or controversy requirement, ... and prudential standing, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction," ... The Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an "injury in fact" that a favorable judgment will redress. Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."

Stevens, with the majority, reverses this case on prudential standing grounds. And here, I am quite uncertain the judicial philosophy. Article II standing, quite clearly, addresses the plaintiff; asking, is this the right person to bring the suit? Is he the person injured, etc. But prudential standing seems to address the court--should the court hear this case?

One gets a sense of the main concern at the end of Stevens' opinion:

When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child--which both California law and the First Amendment recognize--and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

The talk that gets us here is heavy on Newdow's right to talk to his daughter about his atheism versus his power to direct third parties' actions.

What makes this case different is that Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. . . . [T]he interests of this parent and this child are not parallel and, indeed, are potentially in conflict.
He wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion.

All clear? I'm undecided. For those standing scholars out there, this should be a fun addition to the pantheon of precedent, anyway.

Rehnquist, O'Connor and Thomas concur in the reversal of the 9th Cir., but believe Newdow in fact had standing. Thus, they get to the merits of the case and the rule on whether the 1955 addition violates the establishment clause. Here is the heart of Rehnquist's opinion on why standing should exist:

As alleged by respondent and as recognized by the Court of Appeals, respondent wishes to enjoin the School District from endorsing a form of religion inconsistent with his own views because he has a right to expose his daughter to those views without the State's placing its imprimatur on a particular religion. Under the Court of Appeals' construction of California law, Banning's "veto power" does not override respondent's right to challenge the pledge ceremony.
...
Respondent asserts that the School District's pledge ceremony infringes his right under California law to expose his daughter to his religious views. While she is intimately associated with the source of respondent's standing (the father-daughter relationship and respondent's rights thereunder), the daughter is not the source of respondent's standing; instead it is their relationship that provides respondent his standing, which is clear once respondent's interest is properly described. The Court's criticisms of the Court of Appeals' Article III standing decision and the prudential prohibition on third-party standing provide no basis for denying respondent standing.

Next Post(s): Rehnquist, O'Connor and Thomas on establishment.

While i'm working on my pledge (what is turning to be an essay) post...one can read Marci Hamilton's interesting look at the federalism implications of the case, here.

Soliciting the Bishops
Josh Marshall has some cynical theories on the Bush/Cardinal meeting where the President said, "not all the American bishops are with me" on cultural issues and asked the Vatican to nudge the American bishops toward greater 'activisim'. We've heard about denying communion to Kerry because of his pro-choice views. Marshall mentions Karl Rove buddy, Deal Hudson's, dreams of having bishops read letters of condemnation from the pulpit.

In any event, I figure Rob, at the Catholic legal theory blog, has a good point. (though I disagree with his assumption that the most popular outcry will be a church/state issue...rather, I think alot of folks will figure Bush is a dummy/hypocrit.)

The predictable objection to this news will be cries that the line between church and state has been crossed. I don't see much merit to that, as Bush's attempt to enlist the Vatican's faith-based advocacy for his own political purposes does not seem qualitatively different than a President enlisting churches in the civil rights cause, a war against poverty, or the battle against communism. Indeed, the very premise of Charitable Choice legislation is that faith-based action will facilitate the realization of a political agenda. The only difference between those cases and the current controversy is in the perceived nobility of the particular agenda.

President Bush's attempt, however (assuming that it did occur), does seem to implicate the one-dimensional nature of certain bishops' advocacy up to this point. Why should President Bush feel confident that a more outspoken political role for American bishops will help his candidacy?

Standing Under God.
My dark horse hopes of a ruling on the merits that the pledge violates the first amendment did not manefest itself today. Rather, the pan-academic expected dismissal on standing grounds kept a two-sided debate on the pledge under the establishment clause at bay.

Standing is a dark and thick judicial issue. It has two large themes: 1) standing as required by the Constitution's article III- this is the more clear cut question of whether the plaintiff has been injured in some way, where a case might actually solve or assist the problem...(ie- the Court won't issue advisory opinions, or delve into issues without physical manifestations of the issue's impact; 2) prudential standing- this is the wavy, non-descript issue of when the Court ought to dive into an issue.

Newdow lost on prudential standing. Very simplifiedly, Newdow does have a right to affect the upbringing of his daughter. He would win in a challenge to allow him the chance to talk with her about atheism. However, without greater standing (here- without what is called "next friend" or without full custody rights), he cannot challenge the actions of third parties (here, the school district).

The majority opinion does not touch the first amendment merits. But all is not lost. We are given the pleasure from Rehnquist, O'Connor and Thomas of what these three Justices would have opined had the case gone onto merits. They would have upheld the "under god" addition to the pledge. More, when I get the chance to read carefully through these.

BUT, where is Kennedy? Notably absent from the concurrences is Kennedy's name. Does this mean he would not have agreed with Rehnquist/Thomas and O'Connor that "under god" is OK?
If you were hoping for a ruling upholding the pledge as is, this should cause massive stomach upheaval. Kennedy might have been set to anger 'the right' again this summer.

Here's my utterly ignorant projection of the next, standing-solid, decision on the same facts: Souter, Ginsberg, Breyer, Stevens and Kennedy will deem the "under god" addition unconstitutional; with Thomas, Rehnquist, O'Connor and Scalia (when he takes part in the case)dissenting. Bets?

So much for Competition.
In a blow to the marketeering dream of competition--and its begotten sons, lower prices and greater quality--the Bush administration has decided not to appeal a DC Circuit opinion striking down rules in the 1996 Telecom Act. The rules demanded that the regional bell companies lease their lines to competitors at a reasonable rate.
Remember with me that, long ago, one phone company provided for our online conversations--a somewhat but not entirely necessary monopoly, in that you can't well give public easements for a plethora of phone lines. But the national "Ma Bell" (AT&T) monopoly was broken up in the mid 80's, and divided into our current regional and autonomous bell companies.
When other companies found new technologies to spread lines and microwave towers across the country (thus new modes to provide long distance), they needed to get into the local loops that were completely controlled by the broken up bell companies. (Remember, the public easements for these local phone lines had been granted long ago- and towns and cities have no interest in providing easements for all those companies that want to lay new lines).
Thus, the 1996 Telecom Act required the regional bell companies to lease their lines to competitors. Otherwise, for all the fiber-optic wires a company might lay across the country, it would be in vain if that company couldn't come in to port, so to say.
The DC Circuit has just struck down provisions in the Act because of concerns with states establishing the lease rates. And the Bush Administration is not only not appealing this decision to the Supreme Court, the administration asked the FCC not to appeal the decision; thus, not to protect its own rules.
Now, the regional bells can price what they want to price on their local lines. And power to price (like the power to tax) is the power to destroy.
In this case, it will destroy competition. Another brilliant move by the White House.

Adhering to US law...whatever that means. When you have a memo explaining why torture might be legal, what does the following mean? (For a pretty helpful dissection of the memo, go here.)

Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander-in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.

Q Have you seen the memos?

THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions.

...

Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.

...

Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.

Calling all Rehnquist/Scalia/Thomas fans. Here's you're duty (and Mike, feel free to post directly on here):
Give me a clear and soundly reasoned explanation of these Justices' federalism/state sovereignty principles. Namely, explain their vacating said principles in Bush v. Gore and in the below mentioned dissent. If my use of "vacating" is wrong, explain why.
Here is the Times, today:

After the 2000 census, Colorado redrew its Congressional lines in a way that produced some real contests. One district was divided so evenly that Bob Beauprez, a Republican, won by only 121 votes. But when Republicans won the State Senate last year, they drew new lines that were more favorable to their party. The state's attorney general, a Democrat, challenged them in court.

The Colorado Supreme Court, in a well-reasoned decision, held that the redistricting violated the Colorado Constitution. It said the constitution required that redistricting be done every 10 years, after the census, but no more. The United States Supreme Court has long held that when a state supreme court resolves a case based on the state's constitution, respect for the state's judiciary requires the federal courts to stay out of the matter. A majority did just that this week, when it let the Colorado Supreme Court's ruling stand.

The Supreme Court rejected review of the case, saying, correctly, that the Colorado Supreme Court has decided on state constitutional grounds. Thus, the federal Supreme Court should not have a higher say on state constitutional issues.
Rehnquist, Thomas and Scalia dissented on the cert rejection. They argued that the Colorado Supreme only purported to decide the case solely on state law. These three, apparently, know the state law of Colorado better than that state's Supreme Court.

A true great passes; genius + soul = jazz

Goodbye Ray Charles.

Furthering the post below, read Marshall's latest piece in The Hill- on how the pictures from Abu Ghraib both brought the story to such presence, and now obscure the story.

I initially payed little attention to the prison torture mess becasue, as I was told by the administration, it made sense to me that this was little more than some soldiers being very very stupid. Certainly the administration would not allow anything that approaches that from which we liberated. Even something that, if it got out, gave such an impression, however misplaced...we're much too smart for that. So I thought.

But the Times editorial today traces well my mounting concern.

But disturbing disclosures keep coming. This week it's a legal argument by government lawyers who said the president was not bound by laws or treaties prohibiting torture.

Each new revelation makes it more clear that the inhumanity at Abu Ghraib grew out of a morally dubious culture of legal expediency and a disregard for normal behavior fostered at the top of this administration.

...

Since the Abu Ghraib scandal broke into public view, the administration has contended that a few sadistic guards acted on their own to commit the crimes we've all seen in pictures and videos. At times, the White House has denied that any senior official was aware of the situation, as it did with Red Cross reports documenting a pattern of prisoner abuse in Iraq. In response to a rising pile of documents proving otherwise, the administration has mounted a "Wizard of Oz" defense, urging Americans not to pay attention to inconvenient evidence.
...
The brief cynically suggested that because the president is protecting national security, any ban on torture, even an American law, could not be applied to "interrogation undertaken pursuant to his commander-in-chief authority." Neil A. Lewis and Eric Schmitt reported yesterday in The Times that the document had grown out of a January 2002 Justice Department memo explaining why the Geneva Conventions and American laws against torture did not apply to suspected terrorists.

The editorial makes hints, but not clear arguments, that all of this points to a moral problem in George Bush. Namely, the editorial criticizes the slippery definitions of just what is legal in these prisons during interrogation. When Ashcroft assured Senators that Bush did not order torture, what...after these memos that play with the meaning of that word...did he mean?

And a bone: does it make common sense that, when what we went in there to find wasn't found (those crazy lil mass destuctors), that, perhaps, we might have wanted to turn up the heat on those that keep saying 'we don't know of any hidden weapons."?

Prosecuting Character. Just got some thoughts after reading Randy Cohen's ethicist column a few Sunday Times ago. The question dealt to our ethical advisor went like this:
A federal prosecutor has investigated and prosecuted narcotics trafficers. Some friends use recreational drugs, like marijuana, and the prosecutor has no problems with such use. Is this unethical...and would it be unethical if the prosecutor shared a bowl with the friends?

Randy Cohen writes that, while there is certainly hypocricy in not practicing what one preaches, this is not a lack of ethics; rather, a lack of character.
Cohen, though, goes on to speculate that the prosecutor might have a serious disagreement with the drug laws. Here, we do have an ethical violation. A key element of our ethics, Cohen writes, is the effect of our actions. Here, the prosecutor's actions send people to jail- inflicting the real harm of loss-of-liberty. Such action was done in service of policies the prosecutor disagrees with. As such, the prosecutor acts unethically.

To some degree, I agree with Cohen--if the prosecutor has a real dispute with the drug laws- and those drug laws are at the center of his work. But I think Cohen overlooks the nature of a prosecutor. The prosecutor acts as a servant of the state. As such, the prosecutor acts outside his personal choices at times. There are times when you prosecute a thing because it is state policy with which you disagree. As such, I think such prosecution is not unethical.

In point of fact, I wonder if the prosecutor that prosecutes with a personal sense of rage at the crime, as opposed to a civic sense of dedication to society's/the state's decision of criminal elements might be acting unethical. That, though, might be a story for another day.

The Journal let loose what should amount to a pretty interesting story outlining a memo prepared last year on the legality of certain torture-esque preocedures that are outside the bounds of the Geneva Convention.

Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.

The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners.

The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.

The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.

Importantly, Professor Muller remembers a recent appearance in front of the Supreme Court:

The article reports that Justice Department lawyers reviewed this opinion on specific interrogation practices in or before April of 2003. Deputy Solicitor General Paul Clement told the Supreme Court that the Executive did not engage in "mild torture" or "things of that nature" in April of 2004. We now have further evidence that this was a false representation by DOJ. The memorandum described in the WSJ article carefully parses what does and does not amount to "torture" technically defined -- so when the Justice Department told the Court that DOJ does not engage in "mild" torture "or things of that nature," this was at the very least grossly misleading, and more likely recklessly false.

Federalism, enforcing the 14th, et al.
I just got the chance to read the TN v. Lane decision that came down last month. Quick reminder: a paraplegic had to appear in court; there being no elevator, he crawled up the stairs to the second story court room; later, upon having to be in court again, he refused the crawling entrance to the halls of Justice; he (and another plaintiff) brought this suite against the state for lost opportunity to participate in the judicial process (this, then, is a quite literal due process case.)

State's defense was sovereign immunity under the 11th amendment. That, and Congress oversteped it's bounds with the Americans with Disabilities Act (under which the case is presented).

The ADA provides that states shant be immune from lawsuites brought under the Act. The question, then, is whether Congress had power to make that provision (and thus overcoming the general 11th amendment state immunity.) Only another Constitutional grant of power would so allow.

Under the 5th section of the 14th amendment, Congress can create laws that enforce the 14th amendment. That power, though, is limited. In City of Boerne v. Flores, the Court gave us the test for whether a law passed under the guise of enforcing the 14th amendment is Constitutional: the measures may not work a "substantive change in the governing law; the law must have "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."

So, the question here was whether article II of the ADA (dealing with access to civil institutions) meets that test. Justice Stevens, writing for the majority, says yes. The opinion's pretty straight-forward. It should be no suprise that, under the 14th amendment--which requires states to provide due process--should provide reasonable access to their courts.

What was interesting was Scalia's dissent. He calls for the end of Boerne's test of congruence and proportionality...because, in quite Scalian terms, the test is too mushy and uncertain. So watch out folks- we have an advocate for a new test in this important constitutional law area:

I yield to the lessons of experience. The "congruence and proportionality" standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test ("congruence and proportionality") that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. As I wrote for the Court in an earlier case, "low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." ...
I would replace "congruence and proportionality" with another test--one that provides a clear, enforceable limitation supported by the text of §5. Section 5 grants Congress the power "to enforce, by appropriate legislation," the other provisions of the Fourteenth Amendment. U. S. Const., Amdt. 14 (emphasis added).
...The 1860 edition of Noah Webster's American Dictionary of the English Language, current when the Fourteenth Amendment was adopted, defined "enforce" as: "To put in execution; to cause to take effect; as, to enforce the laws."...Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or "remedy" conduct that does not itself violate any provision of the Fourteenth Amendment. So-called "prophylactic legislation" is reinforcement rather than enforcement.

So, there's something to watch in future opinions.

By the way... I wonder how Scalia feels about the 11th amendment and states' sovereign immunity. No where in the language of the amendment does it protect states against suite brought by citizens of that state--it only protects states againt suits from out-or-staters. Does Scalia embrace the judicially created in-state-citizen sovereign immunity?

Yes...he does.

Leave No Counterpoint Behind. I am generally opposed to No Child Left Behind, for largely three reasons: 1) the effect that high stakes testing has on school curricula; 2) the pressure it places on teachers; and 3) the scope of it as a national experiment in education policy.

No Child Left Behind, of course, divides a school into identifiable sub-populations; thus measuring the achievments of whites, blacks, urban, rural and whatever else have you. Success is measured by end of year tests. If any one of the school's subgroups fails to improve a certain amount in this testing each year, the school can be deemed failing. Enough years of failing means the school might come under new managment, or be tossed altogether. This is a greatly simplified account.

Because of the high stakes of the tests, (and this is not new to NCLB--but NCLB takes up the high stakes testing model with vigor), schools are pressured to teach to the tests. Hence, you lose the semester classes that focus on more minute details...and more sadly, the types of classes that allow teachers to craft their own syllibi. That is my central complaint to school policies that demand high stakes testing. Particular to NCLB, I wish the various states could try different policies. If it turns out high stakes tests are the way to go- so be it. I just wish we didn't federalize the policy.

In any event, an op-ed in today's Washington Post offers an opposition argument to mine. Not so much on the above points- but in praise of No Child's sub-catagories. The argument is this: by dividing schools into sub-groups, the schools can no longer hide their problem areas. For instance, some of the most highly regarded schools in America, (Langley High in Virginia and Bellaire in Houston) have failed a prong of NCLB because of sub-groups not succeeding on the tests. Here is some of the commentary (talking about Rod Paige, our Education Secretary):

Where he refuses to yield an inch is on the idea of "disaggregating" the scores of various subgroups from schoolwide results. Many a school problem has been hidden under a blanket of "average" scores. That can be especially easy in schools where most students are high achievers because underachieving subgroups tend to get submerged in schoolwide numbers. That, says Paige, is why NCLB insists on making sure that each subgroup, and not just the overall student body, makes "adequate yearly progress." Without disaggregation, he says, there's no incentive to make it happen.

Langley's Clendaniel -- surprise! -- agrees. "We were upset to be identified as a failing school, when we knew what terrific work we are doing. But I have to say that the next year, we did go out and remediate the heck out of those [special-ed] kids. The teachers took it personally, do a lot on their own time. And now we don't have any underperforming subgroups."

Clendaniel may not be a convert to NCLB, but the controversial program does, he admits, "make you pay attention to individual students more closely than you might have before."

Support Senate Bill S972.

"ACT TO ESTABLISH A TWO YEAR MORATORIUM ON EXECUTIONS"

Ellie Kinnaird's bill requires that no death penalty dates be set for two years, during which time we have a study to "examine issues regarding the imposition
of a death sentence under North Carolina law."

Worries include our sentencing of at least five innocent people to death, the compentency of lawyers defending folks vulnerable of the death penalty, potential problems with race, and arbitrary application of the death penalty.

And then there is the moral Wrongness of the thing.

You can support the moratorium by going here. If you're in NC, please give a visit to this site.

Read him his rights.

If the police question you for two hours in an interrogation room, is it an interrogation?

No, says the fab five of our Supreme Court...once again confounding common sense.

Yarborough v. Alvarado came out today. You can read it here. The question is this: Is a Miranda warning required where a 17 year old boy is questioned in an interrogation room at a police station?
Here, the police suspected Alvarado of helping to attemot to steal a truck, leading to the shooting death of the truck's owner. Police called Alvarado's parents, asking them to bring the boy to the station. Upon arrival, Police denied a request that the parents be able to sit in on the questioning, saying, "What do we have here; we are going to question a suspect." They then sat him in a room, asking question for two hours during which time Alvarado admitted to his involvement.

A constitutional prerequisite to an interrogation is notification of your right to an attorney present at the questioning, that what you say will come back to haunt you in court, and that you can get a court appointed attorney. If you are suposed to get a Miranda warning and you don't, what you say during the interrogation cannot be used in court...with some exceptions inapplicable here.
Forseeably, the major question here is: when is the Miranda warning evoked?
The answer is: when there is 1) an interrogation and 2) the person is in custody.

This case was about custody...there's no doubt the interrogation prong is met. The general test for whether the suspect is in cusdody is:
Would a reasonable person in this setting feel free to get up and leave?

And this brings us to Justoce Kennedy's majority opinion today.

I see two major parts of this decision. The first is not so monumental, and it is, apparently, not so much a threat to the custody issue in Miranda. It's really more a judicial review question.
Alvarado had filed a petition for a writ of habeas corpus, and the writ was denied. To succeed with such a writ, you need to show the court missapplied clearly established law. Kennedy says the denial of a habeus threat was OK because there wasn't clear, wrongful use of the law. ie- where the legal boundary is broad (like a question of whether there is cusdody), a judge has some leeway.

Second, Kennedy says the 9th circuit (which overturned the lower court's habeas denial) was wrong. The 9th Cir. reversed because the Judge had not taken into account age, etc...ie- the 9th circuit wanted a complete circumstances consideration. Kennedy writes that the custody inquiry for Miranda is objective...and shouldn't demand cops to sit down and ponder all the circumstances before deciding whether to issue a Miranda warning.

I find this wierd. Is Kennedy, on one hand saying the custody question is objective and well defined, but on the other saying the question of custody is vague, and reasonable people can differ? Perhaps a few more readings will clear that up.

Anyway, I find Breyer's dissent refreshing:

The law in this case asks judges to apply, not arcane or complex legal directives, but ordinary common sense. Would a reasonable person in Alvarado's position have felt free simply to get up and walk out of the small room in the station house at will during his 2-hour police interrogation? I ask the reader to put himself, or herself, in Alvarado's circumstances and then answer that question: Alvarado hears from his parents that he is needed for police questioning. His parents take him to the station. On arrival, a police officer separates him from his parents. His parents ask to come along, but the officer says they may not. Another officer says, "What do we have here; we are going to question a suspect."
The police take Alvarado to a small interrogation room, away from the station's public area. A single officer begins to question him, making clear in the process that the police have evidence that he participated in an attempted carjacking connected with a murder. When he says that he never saw any shooting, the officer suggests that he is lying, while adding that she is "giving [him] the opportunity to tell the truth" and "tak[e] care of [him]self." Toward the end of the questioning, the officer gives him permission to take a bathroom or water break. After two hours, by which time he has admitted he was involved in the attempted theft, knew about the gun, and helped to hide it, the questioning ends.

What reasonable person in the circumstances--brought to a police station by his parents at police request, put in a small interrogation room, questioned for a solid two hours, and confronted with claims that there is strong evidence that he participated in a serious crime, could have thought to himself, "Well, anytime I want to leave I can just get up and walk out"? If the person harbored any doubts, would he still think he might be free to leave once he recalls that the police officer has just refused to let his parents remain with him during questioning? Would he still think that he, rather than the officer, controls the situation?

There is only one possible answer to these questions. A reasonable person would not have thought he was free simply to pick up and leave in the middle of the interrogation.