Saturday, July 31, 2004

Zeitgeist Europa

Americans who find themselves compelled to look to Europe for salvation from the hell of fundamentalism, be it Christian or just plain, basic American values, really should spend some time considering European cultural offerings such as the following that's available from Norway:

Things could conceivably be far worse. The brief ebullition of indignation that followed Janet Jackson’s rather pathetic exhibitionist display during the Super Bowl’s halftime show was no doubt sincere, but surely it was nothing compared to the fury in Poland earlier this year after Polish state television aired a concert by a Norwegian “black metal” band in Krakow. The entertainment reportedly featured—among other whimsical conceits—naked women hanging from crosses (one of whom had to be hospitalized when she lost consciousness), a dozen sheeps’ heads impaled on stakes, perhaps a hundred liters of sheep’s blood poured over the performers and their audience, a stage festooned with satanist sigils, and songs of praise to the devil. Not that this concert was in any sense a departure for Norwegians: such bands are perhaps Norway’s chief cultural export these days, and among their giddily irrepressible devotees they enjoy a celebrity of the sort once accorded to Paganini. Their performances invariably involve roughly equal measures of cruelty, obscenity, sacrilege, diabolism, and Norse paganism (thus accomplishing the difficult feat of simultaneously blaspheming both the Christian God and Odin). But it was certainly a departure for Polish television.

"Freedom and Decency"
by David B. Hart
First Things
June/July 2004

bin Laden seems to have placed his crosshairs - "pipper" for you fighter pilots out there - on the wrong cultural target. Europe is far more corrupt, debauched and decadent than Americans can even imagine. Perhaps we'd find it easier to retarget the Islamic fundamentalists than to wipe them out. In which case we can kill two of those proverbial birds with one stone - prevent attacks on this country and silence those pesky Europeans.

N'est pas?

Venusian Supremes - Why can't we all just get along?

The culture wars are no negligible concern. We have learned from recent history that even nations that appear to be powerful, stable, and civilized can quickly collapse into paralyzing strife and even destructive anarchy. The prospect is unsettling. So while we may rightly doubt the propriety of the Supreme Court’s conception of itself as national conciliator, we may nonetheless admire the motives of Justices who want to reduce conflict and hold the nation together.

Unfortunately, in our current legal and moral climate, the effort by Justices to act as mediators pushes them to adopt tactics that are likely to aggravate the very problem they seek to address. If the nation’s divisions are to be healed, the healing will not come about by life-tenured officials issuing indictments that accuse millions of their fellow-citizens of animus, prejudice, hostility, or hatred.

"Conciliating Hatred"
Steven D. Smith
Warren Distinguished Professor of Law at the University of San Diego
First Things
June/July 2004

Thus read the last two paragraphs of Mr. Smith's very interesting article. Worth viewing the unexpurgated version if you're interested in what motivates the Supremes to be so creative in their prestidigitation that brings forth new legal principles out of thin air. Law based on how we might be rather than how we are. Hmmm. Wonder where I've heard something like that before?

Tuesday, July 27, 2004

Euro rethink & respeak?

Just when one begins to think one has a handle on the planet and its occupants, along comes evidence to the contrary. Just in (yesterday) from the American Thinker is an article by the ever astute Olivier Guitta - "Surprising views of Iraq from the French press". Caesar may have reckoned that "Omnia Gallia in tres partes divisa est" but who ever would have thought that those inscrutable French would ever come around to the defense of Dubya? Not me. But thanks to Mr. Guitta, Le Figaro, Le Monde and Liberation we have proof positive that the Dems are on the wrong side of history. They'd better party hardy while the spotlight is on their convention. When the Euros start to rethink and to respeak, the naysayers are definitely beginning to break ranks.

Eurothink & Eurospeak

The following is off the subject of the Constitution, but, given contemporary events in Boston, I found myself compelled to offer my two cents - or should I say francs? Oops! There aren't any francs anymore! But there are two-cent Euro coins. How convenient!

Ideas Have Consequences” sayeth Richard M. Weaver in his 1993 book of the same title. When one first considers the consequences suffered in the Twentieth Century and offered as sacrifice to ideas of varied pedigree, the statement may seem merely trite. Of course, ideas have consequences. So? One could let things stand there if it were not for the blind insistence of so many – mainly but not exclusively in Europe – that the tree of their ideas will bear fruit only sweet and that no lemons will grow from the flower of their thought. After all, Marxism was such a great success as a boon to humanity.

Bat Ye'or is a Jew of Egyptian birth who has written frequently and scholarly about Islam, Muslims,  and the history and consequences of the Islamic view of the world. Recent articles by Ye’or for chronicle the Europeans’ pusillanimous, voluntary  surrender to the ongoing Arab Muslim invasion of that continent. In a piece dated today, she references a study done for the European Union and states that --

Most recently, this program of Euro-Arab symbiosis has been codified in a detailed report entitled, “Dialogue between Peoples and Cultures in the Euro-Mediterranean Area.” Released last October, this report (whose contributors included Umberto Eco and Tariq Ramadan) was to establish complete interdependence between Europe and the Arab-Muslim world. Romano Prodi, President of the European Commission, established the High-Level Advisory Group which stated the aims, policies, and routine functions of the foundation. The Advisory Group mandated that the foundation have complete financial and administrative independence in managing its budget and in choosing its partners. In support of this remarkable request, the Advisory Group argued that the foundation needed considerable resources to cover its activities that would be extraordinarily expensive, as they will encompass all the countries of the EU. The Advisory Group further justified such conditions by invoking its lofty aim, which “is nothing less than peace itself.” And this “peace” -- accomplished through “brotherly love” and “dialogue” between the North and the South of the Mediterranean -- will be achieved by a total economic, political, and cultural fusion.
The full report is forty-four pages long. I have not read the whole thing. But the first few paragraphs of the introduction on page five will suffice to impart the flavor and gist of this example of Eurothink and Europseak --

Recent history has been marked by a rapid succession of ruptures, approximately once every ten years. The 1979 Islamic Revolution in Iran, then the fall in 1989 of the Berlin Wall and, more recently, the terrorist attack on the World Trade Centre towers on 11 September 2001. Each one has defined its era. Together they have fashioned the world of uncertainty and fear in which we now live. First symptoms and then causes of major historical changes, these crises have undermined the established forms, methods and rules of the international order.

These crises have combined with globalisation to subject contemporary societies to changes of all kinds the cumulative effect of which has led to major evolutions or even transformations in the very nature of those societies. This state of affairs calls for new paradigms.

The President of the European Commission, Romano Prodi, was acutely aware of these background movements long before the tragedy of 11 September 2001 and had long drawn attention to the urgency of working to ward off the malaise and forge positive links between peoples and societies. Because the dialogue between peoples and cultures1 is based on the equal dignity of cultures, it seemed to him the most promising way of achieving this while avoiding any cultural relativism in terms of fundamental rights for each human being. On the basis of this starting point, he formulated two key questions:

How can we contribute to the emergence of a "society of peoples and cultures", alongside the society of states, in the Euro-Mediterranean area?

What shape should such a dialogue between cultures take, a dialogue conducted primarily among the peoples who inherit and pass on those cultures, bearing in mind that it should be governed by at least the three principles of equality, co-ownership and cross-fertilisation?

The Symposium on Intercultural Dialogue held on 20 and 21 March 2002 in Brussels was the occasion on which this political will was first expressed, and President Prodi took the opportunity to emphasise the need to rethink this dialogue, bearing in mind - in the words of the UNESCO Constitution - that "since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed".
“Ruptures”? The Iranian Islamic revolution, fall of the Berlin wall and the attacks of 9/11 are decadally spaced ruptures? No distinctions considered or made. Just periodic bumps on the rupture scale. At least the Richter scale has provision for variations in magnitude. No need for such complexity to be here considered. And I thought we Americans were the un-nuanced simpletons? Perhaps the term is used in its medical sense and refers to the combined European frontal cortices.

“. . . these crises have undermined the established forms, methods and rules of the international order. “ The fall of the Berlin wall was a crisis? I thought it was a triumph. A banner day for Truth, Justice and the American Way. But the Europeans think of it as a crisis equivalent to the “tragedy of 11 September 2001.”

“Tragedy”? The twin towers were felled, the Pentagon set ablaze and three-thousand human beings were incinerated and crushed by an earthquake? Meteorite or comet impact? Flood? Global warming? Solar flares? This was an act of war! Not tragedy! Can’t these people call even a single spade, a spade?

I will be forever grateful to Mr. Prodi, EU Commission President, for being “acutely aware of these background movements long before the tragedy of 11 September 2001” and for having “long drawn attention to the urgency of working to ward off the malaise and forge positive links between peoples and societies. “ About the only thing he and his cronies seem to have warded off is sanity and the only thing they’re forging are shackles for themselves.

“What shape should such a dialogue between cultures take. . .”? Doubtless the American and European answers to that question differ substantially in both form and content.  I fail to see how Senator/Candidate Kerry’s answer of groveling before the European pacifists is one that Americans would find acceptable -- let alone preserve our freedom.

“President Prodi took the opportunity to emphasise the need to rethink this dialogue, bearing in mind - in the words of the UNESCO Constitution - that ‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed’”. Thus speaketh and thinketh the cradle of our civilization. The font of our wisdom. I shudder at the very thought of an American President succumbing to the temptation to bind our fate to that of such fools.

Peace at any price. Indeed.

Oh, and one more thing, if you ever see anything datelined "Brussels", I would suggest that you avoid reading it. Would most likely be dangerous to your mental, if not your physical health. I failed to adhere to this dictum and now look at the induced allergic reaction. Where's my Benadryl?


Sunday, July 25, 2004

ex parte McCardle

A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court. . . . The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. . . . The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else.

-Oliver Wendell Holmes
  January 8, 1897
  Boston University School of Law

Robert P. George so quotes Justice Holmes in the April 2001 issue of First Things in a piece titled “What is Law? A Century of Arguments”.  George goes on to say that Holmes was probably being provocative in the sense that he wanted to stimulate argument regarding the meaning of law and not that he thought prediction was the end all and be all of the law. But prediction is an important aspect of the law, for how else can we judge what consequences our actions may have before the law? Without one having a reasonable chance of predicting how one might be treated by the courts, the law would degenerate into something resembling a TV quiz show with reward or punishment meted out on some random basis. This might more closely suit today’s cultural predilections but it would then not be anything even remotely resembling a just legal system. Islamic Sharia law would by comparison seem merciful.

While reading a recent article by Robert Robb of the Arizona Republic, “If states will say 'I do,' can gay marriage work?”, I came to realize that there may be a means other than Constitutional amending that might be used to prevent the Supreme Court from upsetting the states’ current, exclusive role in defining and regulating marriage. As I said before, I want the states to retain that role and the federal judicial, executive and legislative branches should butt out. According to Mr. Robb my having that same opinion regarding abortion puts me in a minority of one on that other subject of Constitutional import. But when he mentioned that the question of gay marriage could be left to the discretion of the states through either “a different constitutional amendment reserving the definition of marriage to the states, or more expeditiously by exercising Congress' power to remove a matter from the U.S. Supreme Court's appellate jurisdiction.” Oh, really?  What’s “Congress' power to remove a matter from the U.S. Supreme Court's appellate jurisdiction”? So, I wrote to Mr. Robb and asked him to elucidate. He responded by saying that although he didn’t have his personal copy available to quote, it was right there in the section of the Constitution setting up the courts. Not having memorized the document under discussion, I got my copy out and sure enough, in Article III, Section 2, 2nd paragraph it says, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Well, golly gee, I didn’t know Congress could do that! Well, they can and they can’t. And the sad state of affairs is that in this situation one can find almost any argument one wishes regarding whether or not Congress’ power to control the Supreme Court’s jurisdiction regarding gay marriage would or would not apply. And who would decide whether or not it did? The Supreme Court? Hmmm., wouldn’t that be what is commonly referred to as circular reasoning? There’s at least one fellow, Jon Roland, who thinks the sentence refers only to Congress’ power to decide whether or not the Supreme Court has, in any constitutionally non-specified instance, appellate or original jurisdiction. Not whether or not it has any jurisdiction at all. If that’s the case, then there is no case for Congress’ power to regulate the appellate jurisdiction of the Supreme Court.

But of course, things couldn’t be that simple – now could they? Nosireebob. Doing a bit deeper digging I discovered what, for me at least, is the ultimate source on this subject. At the Duke University law archive there is access to “A Critical Guide to ex parte McCardle” as a downloadable .pdf file of an Arizona Law Review article by William W. Van Alstyne. “Ex parte McCardle” is to Congressional authority over Supreme Court appellate jurisdiction what “Marbury vs. Madison” is to the Supremes’ judicial review of Congressional lawmaking – that is, considered the defining case. If you think I’m confused now, you should have seen me while reading, glancingly, the forty-two pages with footnotes of enlightenment this provided. When all is said and done, there is some possibility, however much I know not, that Congress could cap the gay marriage issue at the state level by using this clause of the Constitution. But as the conclusion to the law review article even states, as a possible outcome of such Congressional action, that this might create more issues than it resolves.

As far as the predictability of the law is concerned, who knows?

And another thing…oh, to heck with it!

Tuesday, July 20, 2004

Two City Journal articles about marriage

For readers interested in the gay marriage debate I heartily recommend the following from the Summer 2004 issue of the City Journal:
1. "Gay Marriage vs. American Marriage" by Kay Hymowitz and
2. "Redefining Marriage Away" by Robert P. George & David L. Tubbs

Saturday, July 17, 2004

Personal Note

I ask for the indulgence of my readers for not having made any recent posts. On Tuesday of the week past my wife's brother died in a very tragic manner. I find myself dumbstruck when trying to expound on things political. Will return when my muse does likewise.

Tuesday, July 13, 2004

Notes on gay marriage

For your convenience, herein are posted some links on the subject of gay marriage - our most current close encounter of the Constitutional kind.

1. Summary of an AEI Study on Homosexuality and Gay Marriage - July 8, 2004 - HERE
2. Download the full text of the AEI Study on Homosexuality and Gay Marriage in PDF format - HERE
3. Mr. John Yoo of AEI discusses in a Wall Street Journal article why we should "Let the States Decide" the issue of gay marriage - February 27, 2004 - HERE
4. Justin Raimondo explains the driving forces behind the gay political movement in "A Gay Man Decries "Gay Rights" - AEI March, 2000 - HERE
5. Hawaiian preview of gay-marriage coming attractions - AEI article by Hadley Arkes, "Taking Law Into Shangri-La" - May/June 1995 - HERE

Sunday, July 11, 2004

Notes on a Sunday afternoon...

I should be out golfing or boating but the affairs of state keep me lashed to the wheel...yeh, right!

1. The Campaign to Protect the Constitution certainly has me outclassed HTML-wise. Very slick, indeed. However, slickness doesn't necessarily translate into correctness, i.e., accuracy. On their "Learn More" page they make the statement that "...the Constitution has only been amended 17 times in the past 214 years and only to expand rights to citizens not to take them away as FMA would do." But I do have some difficulty seeing how the XVIII Amendment (Prohibition) expanded anything other than the opportunities for illegal employment. Somebody here is writing without having even read the document under consideration.

2. Slick how Google tailors the ads showing at the top of a given blogspot blog page to the content of that page. Won't be long before the product or service you've been thinking about will be delivered or performed before you even have a chance to make a request. Your credit card will be automatically charged or your bank account debited. Perhaps we'll just have the Personal Purchases Payroll Deduction Plan and you won't have to even be troubled by seeing your money before it disappears.

3. Think I'll contact the "Campaign to Protect the Constitution" and see if they're interested in my Amendment. (I'm working on getting around to revealing that to you. Perhaps the suspense is too much and you've grown weary.)

Is it racism or moral choice?

In today's Sunday Telegraph Will Cummins has an op-ed piece titled "We must be allowed to criticise Islam." The reason I'm posting this is that he asserts, as was similarly argued on this blog, that "Nobody is a member of a race by choice. Such groups are protected from attack because it is unfair to malign human beings for something they cannot help. However, nobody is a member of a community of belief except by choice, which is why those who have decided to enter or remain within one are never protected. Were such choices not open to the severest censure, we could no longer call our country a democracy."

Mr. Cummins thus reaffirms my contention that discrimination and prejudice based upon one's judgment of another's behavior is not and cannot be touted as racism.

Friday, July 09, 2004

Why elect Representatives every two years?

Holding Congressional elections every two years seems to me a waste of time, energy and money. Why not every four years? After all, Senators are put through the vetting process only once every six years. What’s magic about two years for Representatives?

When first I asked myself this question, without having actually sought enlightenment other than from within my own thoughts, I concluded that this was a practical measure on the part of the Founders to accommodate the exigencies of travel and communications as experienced in their day. After all, getting to and from Washington was not an easy venture in the late 1700’s as is so vividly described by David McCullough at the beginning of his biography of John Adams. No mean feat, indeed. And as was the case prior to the invention of the telegraph, communication proceeded at the pace of transportation, whether by ship, horse or foot – smoke signals and native drums notwithstanding. I don’t know about you, but in today’s electronic, fiber optic, via satellite instantly connected world, I find that notion essentially inconceivable.

So as my thoughts went, I assumed they picked two years as a good measure for the purposes of getting elected, moving to Washington, doing the peoples’ business, and returning for reporting to the people -- followed by re-election or condemnation as the case may be. Then there could be no weekend trips back to the home district. The mail – as slow as it may today sometimes seem – was certainly much slower. Mr. Franklin had flown his kite to ascertain that lightning was electricity but electrons were as yet undiscovered let alone harnessed. This certainly was a rather restrictive state of affairs when it came to representing one’s constituency.

However, I could not have been more wrong. The Founders were a hardy lot and such considerations, though of practical import, were not of paramount importance when designing the Constitution. In deciding the term of office for Congressional representatives the primary concern was answerability, adherence to the wishes of the people. For as they so soundly reasoned, the longer the term of an elected official, the less responsive must he be to his constituency. For if one were elected once, for life, one would not be obligated at all to listen to the vox populi, would one? Many of those debating the Constitution wanted a term shorter than two years just to keep the Reps responsive, if not honest.

An important consideration behind specifying a prudently short term of office for the representatives was the past conduct of the English Parliament, who had on one occasion arbitrarily lengthened their term of office from three to seven years. Not being inconveniently restricted by any written constitution that formalized the governmental structures and procedures outside of Parliament’s own authority, they could do as they pleased regarding their term. How convenient! (Said in the manner of Dana Carvey as the Church Lady.)

Thus did our Forefathers see the need for a formal, mutually agreed upon governmental structure that could not be arbitrarily circumvented by those comprising the government. Changing the structure or rules would be cumbersome and time consuming and thus not easily could those in power restructure things to their personal or collective advantage. These guys really were thinking well ahead. But their wisdom is not so much in what they came up with, for their concerns were founded upon the recorded experiences of history, but that they actually took the time to debate, argue and finally agree upon a system that had their collective knowledge and experience imbedded in the result. That the process actually lead to something seemingly without fluff, adornment or self-aggrandizement being the mainstay is what amazes me. This seems such a far cry from today’s political process that one has a difficult time appreciating what that process can and should be.

So, should we change the term of office for Congressmen? If we went to four- rather than two-year terms we could possibly reduce the amount of politicking that Representatives must nearly continually engage in just to stay in office. Whether or not this would lead to a concomitant reduction in campaign expenditures is, I would think, open to debate. There seems no limit to how much is spent to obtain or retain office and the numbers go up every election cycle. Lengthening Congressional terms seems unlikely to reverse that trend.

Having mid-term elections does offer the electorate an opportunity to “send a message” to Washington – whatever that may mean. But at least the means exist to do so should the populace have strong misgivings regarding the then current course of legislative or executive activity. Having the right and means of throwing the bums out is a very comforting notion. One is only stuck with them until their term is up. In some instances and by various means one is not even necessarily obligated to wait that long. The lack of permanence of office is indeed a powerful tool to assist in the keeping of a republic and in avoiding an oligarchy.

Contrary to my original thoughts on the subject, let’s keep it at two years. I feel safer that way.