Monday, June 28, 2004

Supremes uphold habeas corpus for terror suspects

Article I, Section 9 of the Constitution states that “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”, as Lincoln did during the Civil War. Now, a writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. Doesn’t automatically do anything other than afford an individual an opportunity to demonstrate that his incarceration was in error.

Today’s Supreme Court decision regarding persons held as enemy combatants or suspected of terrorist activities may seem to some a coddling of terrorists. I disagree. The Associated Press reports that “The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11 2001: That the government has authority to seize and detain suspected terrorists or their protectors and indefinitely deny access to courts or lawyers while interrogating them.”

What would happen if a U.S. Citizen were so held under the Government’s mistaken belief that he or she was not a citizen? How does one get a hearing if Habeas Corpus does not exists? Do you want to trust the judgment of the Justice Department or the military? If you are so sanguine as to believe that Justice is not prone to error, please think about this incident – if that’s the proper term for such idiocy.

For as the AP again reports “A teacher's aide who forgot to put away her marshmallows and hot chocolate at Yellowstone National Park last year was taken from her cruise ship cabin in handcuffs and hauled before a judge, accused of failing to pay the year-old fine” – which she had in fact paid!

If one can be hauled off in chains over an allegedly unpaid $50 fine, what might one have to endure totally independently of whether or not one is a citizen, whether or not one is guilty, and all while one is being held incommunicado for an indefinite period? I shudder at giving any person or any governmental body that power.

And so would, I believe, the Framers.

P.S. For a not-quite-so-instant analysis of these decisions, see this editorial by the Wall Street Journal.

Thursday, June 24, 2004

Personal note for 06/24/04

Well, I'm off to the Windy City to retrieve Darling Daughter Dana who will again for the first time in several years be resident in the Eastern time zone. My primary family role as beast of burden will be played to its fullest schlepping assorted furniture and other household items down (at least it's DOWN this time) into the maws of the awaiting truck. Then I shall be able to relax as I drive that beast with her car in tow for the five hour trip back. Whoopee! But all in all it should be a pleasant adventure - I hope!

Back next week.


Constitutional overhaul

To begin, let me define what I mean by “change.” To be more precise, I should use the term “overhaul.” And by overhaul I do not mean radical modification or expansion. I use the term in the same sense one would when describing an engine rebuild. It’s still the same engine but renewed and in some ways perhaps better than new. Experience should at least offer an opportunity for improvement. When new but proven technology is available it makes little sense not to adopt it.

The Constitution has been in service for quite some time, has a lot of miles on it, and in some ways is a bit worse for the wear. But the basic design is excellent and has proven reliable in spite of the abusive use some have put it through. We’d find it quite difficult to engineer a brand new design that would be as suitable and a satisfactory replacement. For unlike a strictly mechanical mechanism, the Constitution is the result of the Framers’ deep and prescient understanding of human nature.

The flowering of science and engineering with all the wonderful gadgets pouring forth from the technocopia seem to have little changed or ameliorated the passions and foibles of humankind. At times, all that these wonders seem to do is increase our inclination to deny our nature. Supposedly we are now “postmodern” – whatever that may be. Frankly, I don’t believe we’re post-anything. If we are, then someone forgot to tell the Jihadists who are trying to re-establish Medieval Islam – this time all across the planet.

If there is one thing James Madison and his cronies understood, it was the will to power. One thing that is most interesting about the Constitution is how much of it is negation, restriction. The whole idea is to shackle, compartmentalize power. Check it, prohibit it. Regarding Federal powers we have phrases like “…shall not be prohibited…”, “…shall not be suspended…”, “No…ex post facto law shall be passed”, “No tax or duty shall be laid…”, “No preference shall be given…”, “No money shall be drawn…”, “No Title of Nobility shall be granted…” – and that’s just section 9! Section 10 goes on to say what the States shall not do.

Then comes the Bill of Rights, the First Twelve Amendments, wherein we’re treated to another laundry list of things prohibited, “Congress shall make no law…”, “…right of the people to keep and bear Arms, shall not be infringed”, “No Soldier…shall be quartered in any house…”, “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…”, “No person shall be held to answer…”, “… the accused shall enjoy the right to a speedy and public trial…”, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”, “The Judicial power of the United States shall not be construed…”

What’s going on here? Specify everything you don’t want the government to do, and what you’re nice enough to leave on the table they can have a crack at? Guess so. And so, I am befuddled as to how anyone can even imagine that any branch of the government may take upon itself the task of creating “rights” out of thin air or finding a meaning within the Constitution that no one else saw for two hundred years or more. The term most commonly used for the most common form of this process is “judicial activism.” But Robert Bork wryly observes that the Israeli Supreme Court has created a plethora of “Constitutional” rights and Israel doesn’t even have a Constitution! Thus would I prefer to use the term “judicial prestidigitation” as that seems more descriptive.

The fact remains, the more that is read into the Constitution, the more “living” a document the courts or anyone else asserts it to be, the more its tone and tenor are subverted, the more its intention is misdirected. The Founding Fathers were indeed the Founding Minimalists.

Overhaul the Constitution? Well, only in a restorative sense – with a tweak or two here and there. Okay, I’ll fess up. I would also like to include a couple of biggie-sized changes just for good measure. Something that would make negation a “living” process.

Next time: How often should we elect Representatives?

Wednesday, June 23, 2004

Thoughts regarding beheaders

A question’s been raised regarding the constitutionality of actions we might take against those who practice the increasingly popular terrorist sport of beheading. Are they human, sub-human or altogether a another species? How might we be constitutionally constrainted as to how we bring justice down upon their heads? What does the Constitution tells us? Well, I would say, in a direct sense, nothing.

The Constitution assumes an agreed upon universal morality. It makes less sense and provides a weaker governmental framework without this assumption. In today’s post-modern, diverse, politically correct, morally neutered world, a universal morality is not only not presumed, but explicitly denied. Once this abrogation of the underlying moral basis of the Constitution is made, in a very real sense it loses its meaning. If we want a “modern” constitution not based upon Judeo-Christian moral teaching, then perhaps we should adopt the proposed European Union multi-hundred paged tome. But it won’t be our Constitution.

There are specific prohibitions restraining the actions of government contained within the provisions of the Constitution. Some seem not very meaningful from a modern viewpoint such as not quartering troops in a private residence. That doesn’t seem to be a problem anywhere near where I live, but was obviously a habit of the Brits and their hirelings that seriously rankled the colonialist. The granting of the right to bear arms is, of course, constantly being challenged and defended, denied and asserted. That’s a subject for another time. But answers to specific issues are, for the most part, not to be found in that hallowed document.

As I’ve said, the Constitution is primarily a rule book. Specific rights are enumerated to place some rather broad boundaries around the government’s power to enact rules that infringe upon our freedom. But process is the main point. My contention is that if it’s not in the Constitution, it’s not a constitutional question. That principle seems lost on a very sizeable segment of our judiciary including many of our Supreme Olympians.

So, the short answer is no. What, when and how we do to the wielders of the Islamic sword of head separation is not a constitutional question. It is most certainly a moral and a legal question. I leave it at that.

Oh, one more thing. (Isn’t there always?) The West’s widely accepted abandonment of the moral underpinnings that support the Constitution seems to be what most troubles this band of blade brothers. How ironic that we should wonder whether or not our now non-extant moral code would permit us to do unto them likewise. In a very perverted sense, their actions seem more morally justified – at least to them.

Tuesday, June 22, 2004

Gay marriage without war

Jonathan Rauch in his book “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America” details his moral and humanitarian arguments for the adoption of gay marriage. He is also against its imposition or prohibition through legal fiat or Constitutional tinkering. He contends that a federalist approach is the best and most workable means of getting there without creating another catastrophic splintering within our society. Now, I have not read the book but I did see him on C-Span where he was part of a panel discussing the topic while concomitantly hawking his new book. I take no issue with that effort, since as a result I have the advantage of at least seeing a video-taped Reader’s Digest version. If we are determined to conduct the major social experiment that gay marriage will entail, I tend to agree with him on method but not justification.

For purposes of this forum, I trust that I can avoid injecting my own moral judgments into the debate. I will try to eschew both approval and condemnation of the morality associated with the behavior or assertions under discussion. The Constitution is at its core not much more than a political cookbook. It’s basically amoral but has strong moral underpinnings. Whether or not the recipe will turn out to be appetizing is a proof found only in the pudding. If it works, it’s good. Otherwise, toss it out. This is the pragmatism that binds it as egg does the batter. So far, it has stood the test of time rather well and has proven itself the tastiest political feast on the planet. And the pudding that most convincingly offers the proof is the voluntary one-way vote-with-your feet migration into and not out of the land that beckons from sea to shining sea.

But let’s not get too sentimental. One doesn’t get all excited reading and attempting to follow assembly instructions. Nor – and trust me on this as I’m an ex-Air Force pilot – does one find it easy to maintain consciousness reading FAA regulations. But those things are closer in nature to the structure and purpose of the Constitution than all the glowing accolades so often used to describe our system of government. It’s a basic set of rules that shouldn’t be tinkered with lightly and then only when necessary. Think of it as what the Swedes went through when they decided they would stop driving on the same side of the road as the Brits. On a Sunday morning in September of 1967 they swung over to the right. (Unfortunately, this has not been the case politically.) You don’t do that sort of thing very often, without great difficulty, and it’s quite unlikely that you’ll go back once the change has been made.

As with all analogy this is imperfect, but it does illustrate what we’re talking about when we consider giving gay marriage a legal imprimatur. It will be difficult and once done we would find it nearly impossible to undo. But, and here’s the bit where the analogy breaks down, unlike switching road-driving sides, we can do it one-step-at-a-time. Just thinking about attempting a paced driving-side changeover conjures up countless humorous images. But the beauty of federalism is that we can experiment in one or a few states without throwing the whole country into a tizzy. Certainly makes sense to test market the recipe before building the plant and going into full-scale production.

For we will have to consider more than just a few issues, conduct a number of experiments, work through the wrangling and log-rolling that invariably lubricates political decisions. But that lubricant is 50w and the wheels turn slowly. And not to no purpose. If gay activists insist on bludgeoning the rest of American society by demanding a “I want it done yesterday” approach, we’re in for struggle that could make the abortion issue seem like child’s play. And that conflict will make for some interesting bedfellows. In March of 2004, a group of black clergy held a rally protesting the reluctance of Georgia’s Democratic state legislators to pass an amendment to the state constitution banning gay marriage. African-Americans in a number of communities across the country have voiced serious objection to gays equating the marriage issue to the struggle of blacks to achieve their full measure of civil rights. Gay marriage has the potential to produce some seismic shifting in the political landscape.

What the Founding Fathers wrought would then appear quite adequate to handle the gay marriage issue. Just don’t muck it up. Keep the Constitution amenders and the judicial activators out of the equation and we could probably resolve the issue without generating multiple social and political crises within these hallowed borders. The difficulty is that there are so many of the elites and Olympians who think they know better. They’ve certainly shown us that with busing and abortion, haven’t they? No discord sown there. They did get it right when it came to true civil rights for minorities. But these were rights based on just being a person, not a right granted to sanction a preferred personal behavior. Not the same thing. Not at all.

If you’re curious as to why I seem reluctant to advocate a change to the Constitution that would ban gay marriage, even if I personally object to adopting this new social milieu, here’s the answer. Gay marriage is an end product, the finished goods, not a recipe. It can never stand as part of government structure or process. The Constitution is a rule book. Changing the recipe can lead to unexpected results. I know I’m not wise enough to imagine, let alone predict all the results of making a change. Unfortunately, those Olympians that one would expect to know have often seemed little more capable with their predictions, the full consequences of their Constitutional tinkering seldom being foreseen. All, well, many things considered, James Madison and his fellow Framers seem to have had a very well polished crystal ball indeed. Think I’ll listen first to what they have to say before I will some others.

Next time: The Constitution - what should be changed and why

Monday, June 21, 2004

Gay marriage is not a “rights” or “discrimination” issue

Before diving headlong into the reasons why I do not believe gay marriage is a “rights” or “discrimination” issue, permit me to briefly state my personal attitude and feelings about homosexual issues. I do this to head off criticism of what follows based on what some might presume is my homophobia or a less flattering description of their choosing.

I do not morally judge others regarding what they as members of the same or opposite sex do to or with one another within the generally accepted criteria of age and mutual consent. My own sexual orientation is quite straight, but I will admit that thoughts have passed through my consciousness that would be considered beyond a strict definition of heterosexuality. But I don’t think that my true nature lies in some realm that I dared not explore because of a sense of shame or fear of discovery. And so I would not describe myself as homophobic. I do, however, take serious issue with much of the gay political agenda. I do so because there seems to be a great deal in that agenda that itself smacks of the very same intolerance of which gays accuse others.

Discussion of any issue requires that we have a common language and, additionally, mutually agreed definitions of the terms used within a given context. Tolerance, and its inverse intolerance, are often used when acceptance, approval or legitimacy are intended. One can tolerate, and in any society one is often so required, what one neither approves nor considers legitimate. The issue of gay marriage is not one of tolerance. Rather, the goal of gay marriage is to obtain approval of and legitimacy for personal behavior that the majority of American society does not approve of but in general is willing to tolerate. This is the real issue behind the social schism created by such gay political objectives.

This is no less true of the vigorous campaign waged by gay rights activists and the ever-present ACLU to defame and, if possible, destroy the Boy Scouts of America if the BSA persists in its refusal to embrace openly gay members and scout masters. I am at a loss as to why this should be such an adamantly contested issue unless I remind myself that this is, again, a seeking of approval and acceptance. This struggle for approval is doggedly pursued despite the fact that in the year 2000 the Supreme Court ruled that the BSA had a right to freedom of association and was not obligated to include those not in concert with the group's values, goals and philosophy. No matter. All across the country school boards, charities and others controlling public funds or facilities have moved to ostracize the Boy Scouts by denying funding or prohibiting the use of public facilities. To me, this can be construed as nothing other than intolerance. Intolerance of the Boy Scouts exercising their Constitutional rights.

To grease rather than grind the wheels of society, one person’s or group’s rights must be a least tolerable to a substantial majority of that society. Attempting to force acceptance or impose legitimacy creates more conflict than it resolves. The wounds and resentments so created will never cease to fester. They will be constantly picked at and remain raw. Whatever arrangements gays or other advocacy groups attempt to force upon society, the approval they seek may become law but cannot be legitimate without a willing acceptance by a substantive majority of their fellow citizens. And that cannot be imposed by legislation nor court decree.

There are a number of rights explicitly granted and guaranteed by the Constitution. One wouldn’t think that these would be the subject of much quibbling. But lawyers, and their distinguished distillations as judges, especially those of federal ilk, have found a simple - but not simplistic - reading of the Constitution insufficient to justify their remuneration. Thus the First Amendment protects all manner of pornography and other degradations but does not prohibit Congress from restricting and imposing ludicrous and easily circumvented rules on political speech -- the one thing most everyone agrees it was intended to protect. How do such inversions come about? Few if any of those reading this will have the time, inclination nor learning to answer that question. However, we must insist and force Congress and the courts to adhere to the principle that the Constitution is written to be interpreted in a straightforward and not convoluted manner. It means what it says and says what it means. It’s not rocket science nor a coded mystery that will be revealed to only a few -- the High Priests and Priestesses who will give us the law.

If this is not the case, then democracy is a sham. If the average citizen cannot understand and interpret the law, of what use is the vote? Trial by jury is reduced to nothing more than a dicey opinion poll. One should not find it too surprising that the Olympians expect--demand rather--that we acquiesce to their authority by placing our fate in their hands. We are the great unwashed, ignorant and uninitiated mass that little knows what’s in its own best interest. So it seems we have and are being told. I for one don’t buy it -- not for a minute.

To continue with definitions, I would postulate that the Constitutional prohibitions against discrimination are concerned with rights granted as a condition of existence. That is, characteristics that are a result of an accident of birth, such as sex, race, national origin and even religion cannot be used to show preference of one person over another nor used to deny any right to an individual. Thus what one has no control over is not grounds for being discriminated against. However, one does have or should have control over one’s behavior. If this is deniable we would have no basis whatsoever for law or governance by anything other than force. Behavior thus becomes a legitimate basis for discrimination. And we do discriminate between acceptable and unacceptable behavior all the time. Our prisons are chock full of those against whom we have discriminated.

Now I’m not in any way, shape or form suggesting that we imprison gays. Far from it. I am however saying that society does have a right to discriminate between those behaviors it approves and those it does not. And if society chooses not to approve and legitimize the behavior exemplified by gay marriage, it has every right to do so. This is discrimination but not the prohibited kind. Courts, because of their failings mentioned earlier, may very well end up imposing the legalization of gay marriage upon the unwilling majority. But it will not be accepted nor considered legitimate by that same majority. And the upheaval so wrought upon society will be added to the burden the Court has already imposed with its decision regarding abortion and other judicial fiats that are at odds with the reasonable wishes of the citizenry.

Next time: Gay marriage without war

Sunday, June 20, 2004

Is gay marriage a federal issue?

Where does one start when contemplating a Constitutional tune-up? Or would overhaul be more apt a description for this forum? Think I’ll opt for overhaul. Why not start with the question of gay marriage? The winds of constitutional amending activity are certainly gaining strength regarding this issue. What questions should we ask before making a decision regarding such a fundamental change to the most basic of all our laws? And then, we even have to seek answers to our own questions. This is a messy process. But tarry we must not. The clock’s running.

The first would certainly be whether or not this issue is of such a scope and nature as to be appropriate for constitutional amendment consideration. After all, the vast majority of legal issues are adjudicated without resorting to amending the Constitution. Laws governing marriage are at the state level and have been ever since the beginning of the Republic. Why should it even be a federal issue?

Well, it’s a federal issue mainly for two reasons. One is that the “Full Faith and Credit” clause may force states not wishing to recognize gay marriage to do so upon such recognition, by whatever means, of gay marriage in another state. Living, as I do, in Michigan, where a majority of my fellow Michiganders (There’s something requiring amendment!) oppose gay marriage, I and all others living here may be forced to accept the decision of the Massachusetts Supreme Court imposing such arrangements upon that Commonwealth. Perhaps they have it coming in the state where Lizzie Borden got away with chopping up her momma and her poppa, but why should that impose an obligation upon those not inclined to accept it and living a fair number of leagues to the west? I don’t think it should. There is a difference of opinion amongst the legal scholars and pundits as to whether or not full faith and credit would or should apply in this instance. Well, does it? We won’t know until if and when – I should probably leave out the “if” – our noble Supreme Court justices - Olympians to use Robert Bork’s very descriptive term – take it upon themselves to bless us with their wise and omniscient judgment. In the meantime, we’ll have gay marriage issues springing up all over the map like mushrooms after a rain, with controversy, protest and rage rampant across the country. This is really a great way to run the Republic. The process has already begun. You may follow its progress daily by means of the myriad of opinion and reporting easily found with a simple Google search. This seems much less like politics and law than it does a spectator sport.

Secondly, and it’s about time I got to why it’s a federal issue in the first place, is that everything, or most everything, is nowadays a federal issue. I cannot imagine that there would be no one who would raise the issue of their “civil” rights being violated by being denied a license to marry a person of the same sex. Even if the issue is brought before the Supremes on the basis of full faith and credit, it doesn’t mean that a decision would be based on that doctrine. The Olympians could hardly so constrain themselves and thus refuse to broaden the issue by not discovering somewhere within the arcane recesses of the Constitution a “right” to self-fulfillment through the vehicle of gay marriage. Federal judges seem little inclined to restrain themselves so I imagine that is why they little expect others to do so. But others’ lack of discipline not often assumes the force of law. Law imposes constraint upon the actions of those others, but no such constraint do judicial activists impose upon themselves. They are thus a law unto themselves. And when was the last time one was impeached and hauled out by his or her ear? If there ever was a breakdown in the separation and balance of power between the three branches of the federal government, it’s the obsequious obeisance given the Judicial by the Legislative and Executive branches. Once the court speaks, the others fall silently into line. This is to me the most egregious of the many forms of political pusillanimity exhibited by our esteemed leaders and representatives. If the Supreme Court says it, it must be so. Talk about passing the buck!

Next time: Why gay marriage is not a “rights” or “discrimination” issue.

Wither go we?

"A journey of a thousand miles begins with a single step" as so wisely the ancient Chinese observed. Changing the Constitution may seem and is most likely a journey of many thousands. This is my first step. I invite you to join me. Not with rancor nor in anger as much of today's political discourse is argued, but with good will and an eye to a future where hopefully we may at least agree on the structures and processes whereby we order our political discourse and conduct. For that is what the creators of the Constitution seem to have sought - order in political process. An order rooted in the will of the people, not one imposed upon them.

As the Constitutional Convention came to a close in September of 1787, Benjamin Franklin is said to have been asked what kind of a government had been created. "A republic, if you can keep it", he responded. Even at the very beginning, this famous constructor of our nation realized that ongoing effort was necessary to keep freedom alive and well. For the will to power is a hungry wolf forever at our Republic's door. And those who most vigorously tempt us with their promises are the most ravenous.

So let us create a path in a direction that is clearly towards greater freedom and away from the servitude that creeps ever nearer.