Thursday, March 31, 2005


Driving home I heard Bill Handel on KFI continue to celebrate the killing of Terri Schiavo as "not a killing", a great thing for America, and urging us to not only submit to laws that would declare human beings as less than human, but embrace eugenics in our own hearts.

Now that Terri has died, my contempt for such neoNazis is not muted by any sorrow at all. I wonder how many other citizens feel the same anger, and whether the pro-death wonks will catch on before they sink themselves.

Captain Ed wants to see Judge Birch impeached. Not me, that would guarantee him a trial. I'd just as soon Congress demonstrate its total control over the jurisdiction of all federal courts but the Supreme Court, by dissolving the 11th Circuit outright, and rebuilding a new district with new judges. They could enact that with a voice vote.

Thursday, March 24, 2005

An Abyss At Our Feet

The Schiavo case reveals a void in American justice with regard to the severely disabled.

Up until now, it has been assumed that in any dispute involving institutional care of the senile, insane, or disabled, that the courts would provide a strong, skeptical, and thorough guardian of the absolute rights of the infirm.

Such has not been the case, and I have to wonder how deep the rot runs. Apart from 2 judges on the 11th Circuit Court of Appeals, the judges in this case refuse to acknowledge that Terri Schiavo has any presumption of the right to life, and that a court order to end her life through deliberate neglect represents any "serious harm" to anybody.

California residents will remember the circuses that attend any attempt to execute murderers in this state. There's never any question of slavish respect for a trial verdict when it comes to murder. There's never any question of delaying the death of the person involved for the most far-fetched appeal. There's never any question whether a medical conclusion from a previous decade needs review--not when the trial was criminal and the action is direct execution as punishment.

But when an heir seeks permission to kill a relative through neglect, based on an unwitnessed verbal communication, the courts seem to roll over. Michael Schiavo couldn't have touched a penny of premarital property based on a verbal promise from Terri to help himself--but that's good enough to kill her.

In all of this, the judges--apart from the worthy exceptions of Judges Tjoflat and Wilson--have acted as though the burden is on the Schindlers to prove why Terri deserves to live. The 14th Amendment would seem to require a bias in favor of preserving a citizen's life.

What is needed now is a massive federal intervention in the affairs of state courts, on the scale of the Civil Voting Rights Act, for exactly the same reasons. Congress was granted authority to intervene against state governments to protect citizens, back in 1867 with the 14th Amendment. When state courts are willing to issue death warrants based on hearsay from financially-interested third-parties, and the federal courts feign neutrality, then we are facing systemic abuse of citizens in long-term inpatient care.

Saturday, March 19, 2005

Opting To Starve

If Terry Schiavo opted to starve because of anorexia, she'd be institutionalized and fed intravenously until she abandoned that desire. The desire to wreck herself by starvation would be recognized as insane per se and she would be denied the liberty to enact that desire until she could be cured of it.

I can only explain the fact that the Florida courts uphold what they insist is a deliberate choice by Schiavo to starve to death, and deny it to thousands of young anorexic women, by presuming the judges feel the mentally incapable are better off dead, and are glad to "help" her.

Thursday, March 17, 2005


Patterico has asked bloggers to consider the following pledge:
If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.
I'll certainly do so, but as I've stated before, I wonder if will let me do so for long.

Some bloggers won't. Michael Williams has moral qualms:
I'm somewhat torn. On one hand, as a Christian I'm generally a fan of obeying the rules, even when they're rules I don't like. As long as a law doesn't prevent me from carrying out God's will -- through evangelism, discipleship, ministry, fellowship, and worship -- then it's hard to spiritually justify disobedience.

...On the third hand, it's not obvious, that potential speech restrictions by the FEC actually qualify as "evil". Sure, speech restrictions lay along the path to evil and oppression, but as Eugene Volokh has often argued, the slippery-slope argument is over-used without justification.

To which Xrlq responds:
A regulation that contradicts a statute or exceeds its statutory authority is void, as is any statute that violates a provision of the Constitution. McCain-Feingold strikes me as a pretty clear violation of the First Amendment, even more so if it is extended to reach ordinary blogs like yours or mine. While most of the world's religions may agree that we have a duty to obey valid laws, I don't know of any religion that requires its adherents to obey "color of law.

I agree with Xrlq, that the clear language of the First Amendment precludes the Bipartisan Campaign Finance Reform Act. If a majority of Congress, the Supreme Court, and the President don't care, so what? The sole basis of their authority over me is the Constitution. That attitude may not flow from the Holy Spirit, but an assertion of individual intellectual and political independence strikes me as fully in line with the doctrine of the soul and the full spiritual equality of humanity.

I would further argue that with the criminalization of political speech, we're not approaching oppression, we're already there. Contrast the Court's attitude towards political advertising with lap dancing: not only are city zoning commissions forbidden to ban lap dancing, they're forbidden to set up zoning restrictions that limit the number of available sites for strip clubs to an intolerable number.
It is unconstitutional for your city council to block strip joints within blocks of schools or churches if that leaves the red light district only a handful of sites in town.

Where is that delicate sensibility towards the freedom of expression when it comes to Americans demanding a clean sweep in November?

Roscoe also has doubts about the propriety and utility of a demand for complete liberty of political expression:
So, where do bloggers fit in? Look at this post from Kos, this isn't free speech, this is fund raising, pure and simply, which would have to be reported as an in-kind contribution even if it appeared in a newspaper. And, given the traffic on Kos' site, the contribution probably has substantial value. And remember, Kos was a paid consultant for the guy for whom he is fund raising. So, if we accept that some regulation of money in politics is acceptable, why should Kos escape regulations because he might be wearing his pajamas?
Look, if you were in a barbershop with Kos, should he be allowed to tell you who he's voting for this November without being fined or jailed?
Should he be allowed to urge you to vote the same way without being fined or jailed?
Should he be allowed to tell you about the office downtown where you can volunteer time or money without being jailed?
If he can do all that in conversation, why can't he do so from a soapbox? Or over the phone? Or over the radio? Or over the Internet?
If the premise that "money in politics justifies regulation" leads you to calculating the Fair Market Value of a FREE posting on a blog, for the purposes of fining the blogger for a unreported donation in kind, then either we rip up the First Amendment or we rethink the premise of justifiable regulation.

The notion that complaints about the Court are a "slippery-slope" fallacy has some merit. There is no slope, we're in free-fall. McConnell v FEC, like the sodomy rights case, like the ban on execution of juvenile offenders, like the recent wacko CA court that rejected common law as any guide to the definition of "marriage"---those aren't the basis for future cases at all. They're one-offs, they're unique concoctions of legalese goobledegook to justify that verdict. The majority justices would be the first to object if a phrase or paragraph were quoted out of context in another case; they aren't meant to be interpreted, just blindly obeyed.

The Supreme Court may be confused about whether I have unilateral guarantees of freedom from my government, but I'm not, and I won't go along to get along.

Wednesday, March 09, 2005

Joint Blarney

From Captain's Quarters, a joint statement from the People's Commissars for GoodThink:

Statement of Senators John McCain and Russ Feingold On Internet Communications

March 8, 2005
As the primary Senate authors of the Bipartisan Campaign Reform Act of 2002, we have spent years fighting to clean up elections and ensure that powerful monied interests do not drown out the voices of everyday Americans in our political system. Those interests don't want to give up any of their power, and their main tactic has been to try to whip up fears, however unfounded and unrealistic, about reform.
Wayne LaPierre is an everyday American. So is Kwesi Mfume. So is Patricia Ireland. So are the millions of Americans who joined the NRA, the NAACP, and NOW--except that once these everyday Americans form an effective political organization, they are transformed into a sinister "monied interest" that must be neutralized at the height of the election cycle. That is the "reform" brought about by McCain-Feingold.
The latest misinformation from the anti-reform crowd is the suggestion that our bill will require regulation of blogs and other Internet communications. A recent federal court decision requires the Federal Election Commission to open a new rulemaking on Internet communications. The FEC will be looking at whether and how paid advertising on the Internet should be treated, i.e., should it be treated differently than paid advertising on television or radio.
Since "treatment" of "paid advertising on the Internet" is precisely "regulation of blogs and other Internet communications", the misinformation appears to be the Senators' statement that such a suggestion is somehow false.
This is an important issue -- since BCRA outlawed soft money, we need to make sure that the FEC doesn't try once again to subvert the law by creating loopholes. So far, the FEC has not even proposed new regulations. When it does so, there will be ample opportunity for comment and debate about whatever proposal the FEC makes.
McCain and Feingold can damn the FEC as subversive before it moves--they're Senators! You plebes can just shut up til you're invited to speak!
This issue has nothing to with private citizens communicating on the Internet. There is simply no reason - none - to think that the FEC should or intends to regulate blogs or other Internet communications by private citizens.
There is simply no reason - none - to forget that until 2004, any American could buy an ad referring to any candidate up to the day of the Election without interference by the FEC.
Suggestions to the contrary are simply the latest attempt by opponents of reform to whip up baseless fears. BCRA was intended to empower ordinary citizens, and it has been successful in doing so. We will continue to fight for that goal.
Empowerment of the ordinary meaning repression of extraordinarily committed, organized, and articulate, by the biggest egotist millionaires in the Fifty States.

Thanks for nothing, guys.

Monday, March 07, 2005

A Scenario for Repression

Hugh Hewitt is remarkably complacent about recent mumblings from the FEC concerning regulation of blogger's links to political websites.

Professor Hewitt instructs us that such regulation is totally illegal, unconstitutional, has never been regarded as otherwise, and would be immensely unpopular.

I would point out that all of that was true regarding the ban on NRA et al. advertising within 90 days of the 2004 election; but a majority of the Supreme Court not only upheld that illegal, unconstitutional, unprecedented, unpopular ban, they declared they rested on their heels with their tongues out waiting for a chance to rubber-stamp further repression of free speech.

Since McConnell v FEC the only surely immune form of political speech is lap dancing with red, white and blue pasties.

Furthermore, such repression would not require the politically risky step of prosecuting the individual blogger. The FEC could take a page from the FCC, which handed down millions in indecency fines over the Superbowl fiasco, not one penny of which was paid by Ms. Jackson.

I admire the fierce defiance of bloggers like Beldar, but practically I doubt he would ever get his moment of truth.

I notice Beldar uses Typepad. I use Blogspot. These are the host services that grant us a forum from which to blog, pursuant to a contract.

What if the FEC ignored the blogger completely and challenged the host service?

If the FEC sent a minatory letter, informing the host that the blogger was under investigation for illegal electioneering, and that if the blog content was found to be illegal the host would be liable to fines, and requesting a formal response from the host, I see three options for the host company:

A: Try to argue that it had no liability for the content of a blog.

B: Defend the blogger's liberty out of its own pocket.

C: Inform the blogger that he was in violation of his Terms of Service and shut down the blog.

If the host chose the third option, the blogger would have no claim against the FEC. The FEC did not declare the blogger guilty of anything, it merely informed a responsible party of an ongoing investigation. It did not demand the blog be shut down. The FEC could not be forced to issue any kind of affirmation of the blogger's innocence to the host; or pressure the host to reinstate the blog, since the Terms of Service is a private contract.

A repression of political blogs in America would be more likely to resemble the Hollywood blacklist--a corporate repression privately adopted to avoid confrontation with lunatics in Congress.

Saturday, March 05, 2005

Ominous Developments at the UN

UNITED NATIONS (Reuters) - Jeers and catcalls greeted the top U.S. delegate to a global women's conference on Friday as she stressed Washington's opposition to abortion and support for sexual abstinence and fidelity.

After withdrawing an unpopular anti-abortion amendment from a key U.N. document, the United States joined in approving the declaration that reaffirmed a 150-page platform agreed 10 years ago at a landmark U.N. women's conference in Beijing.

The final approval prompted cheers, applause and a standing ovation by some participants.

However, top U.S. delegate Ellen Sauerbrey drew boos from the audience, which included some of the 6,000 activists who came from around the world, when she commented on Washington's interpretation of the document.

"We have stated clearly and on many occasions ... that we do not recognize abortion as a method of family planning, nor do we support abortion in our reproductive health assistance," Sauerbrey said.

The loudest catcalls, unusual at the world body, came when she articulated U.S. policy on AIDS prevention for adolescents: "We emphasize the value of the ABC -- abstinence, be faithful, and correct and consistent condom use where appropriate -- approach in comprehensive strategies to combat the spread of HIV/AIDS and the promotion of abstinence as the healthiest and most responsible choice for adolescents."

Earlier Friday, Sauerbrey said the United States was dropping its demand that the document be amended to say that abortion is a matter of national sovereignty and not a human right delineated by the 1995 conference in Beijing.

After a week of closed-door negotiations at the United Nations during a two-week conference on women's equality, Sauerbrey said the U.S. point had been made and therefore Washington's amendment was no longer needed.

The first version of the abandoned amendment said the Beijing meeting's final document did not recognize abortion as a fundamental right; a later version said the document did not create any new international human rights, code for abortion.

"We think we have really accomplished what we set out to do," Sauerbrey said. "We have heard from countries ... that our interpretation is their interpretation. So the amendment we recognize is really redundant, but it has accomplished its goals. We will be withdrawing the amendment."

Despite U.S. lobbying, support for Washington's abortion stance was limited to the Vatican, Costa Rica, Nicaragua and Panama.

Mary Ann Dantuono, the Vatican delegate, was interrupted by shouts when she said the Catholic Church "would have preferred a clearer statement emphasizing that the Beijing documents cannot be interpreted as creating new human rights including the right to abortion."

Delegates from the European Union, Asia and Africa forcefully opposed the U.S. position.

"The text of Beijing is unequivocally clear. We should not spend hours splitting hairs over phrases that mean the same thing," said New Zealand's U.N. Ambassador Don Mackay, speaking for his country, Canada and Australia. He said the Beijing document included a woman's right to control her sexuality.

During the brouhaha over the Specter chairmanship, some of those angrily denouncing us pro-life hardliners insisted we were going to needlessly destroy the party by demanding pro-life judges. Dafydd ab Hugh, in one of Captain Ed's comment forums, told me that it was totally unnecessary and counterproductive to expect the GOP to cave in to the pro-life wing; instead the pro-life wing should take to the streets and drum up a popular supermajority for a pro-life amendment.

The Supreme Court ruling on the execution of juvenile murderers renders that option moot. The United States in 1995 signed onto a woman's rights conference that many other soveriegn nations insist means a guarantee of access to abortion. The fact that the US government insists it does no such thing, would be irrelevant; the Court is on record as correcting all levels of American government to correspond to foriegn expectations.

The problem on the Court is not a lack of clearly written laws, that can be corrected with more laws. It is a problem of personnel, and can only be corrected with better judges--who understand that what the rest of the planet wants is completely irrelevant to a trial over the US constitution.

Friday, March 04, 2005

The Road Back

Is it just me, or at some point in the past decade, did the Supreme Court stop seeing the Bill of Rights as a series of guaranteed individual liberties and instead become a set of guidelines?

By upholding McCain-Feingold, the Court decided that the phrase "Congress shall make no law regarding...freedom of speech" meant Congress could criminalize political speech when the government thought it useful.

Contrary to urban myth, the 14th Amendment does not guarantee any one individual freedom from being disqualified on the basis of race, if a state law school would prefer an applicant of a different color for 'laudable' motives.

The recent case involving the juvenile death penalty was not decided on an absolute guarantee against cruel and unusual punishment, but on a minority consensus about what constitutes cruel and unusual punishment.

In all these cases there is a common thread, and I expect we'll see it in the eminent domain case currently being considered: The Bill of Rights offers no basis for individual complaints against government practices that don't affect the majority.

The strongest principles the Court defends are those invented by the Court--the right to privacy and the ban on public religion.

Principles actually voted into being by the American public are negotiable.

Of course the Court for some time has been interpretly freely, but lately we're seeing shameless destruction of the Constitution by judges who can't bear to reject policies they admire politically.

It's not a question of preserving American liberties, but of bringing them back.

Tuesday, March 01, 2005

Roper v. Simmons

Antonin Scalia gives another excellent exposition of American federalism.

Most cites online quote only the last few paragraphs of his preface, but the entire 23 page dissent is worth reading, and remembering for the next time somebody denounces Scalia as a right-wing kook.

Too bad he's in the minority on this one, but as he observes, give the matter another 15 years...