Archives for March 2005

March 23, 2005

de novo trial v. de novo review

There seems to be a disconnect between the sides in the Terri Schiavo case as to what 'de novo' means. The term is most commonly found at the appellate level, describing the degree of deference given to the lower or previous court's findings. 'De novo' is the least restrictive - the reviewing court can literally 'look anew' at the findings and rule accordingly. But even as 'de novo' is most commonly associated with deference of 'review', the term has an interesting sibling. Although I've never come across the exact phrase, it appears that 'de novo trial' is a term of art distinct from 'de novo review'.

The DC Circuit (J. ROBINSON) said in NOW, Washington, D.C. Chapter v. Social Sec. Admin. of Dep't of Health & Human Services, 237 U.S. App. D.C. 118 (D.C. Cir., 1984). "When I speak of "de novo review," I refer to the distinction between a de novo trial, where the case is tried a second time and the record is made up in the district court, and a court's review of findings of an administrative body, where the record is solely that of the administrative body.'" Local 777, Democratic Union Org. Comm. v. N.L.R.B., 195 U.S. App. D.C. 280, 310, 603 F.2d 862, 892 (1978), quoting Globe-Union, Inc. v. Chicago Tel. Supply Co., 103 F.2d 722, 728, 41 U.S.P.Q. (BNA) 366 (7th Cir. 1939).

The Act does not specify which use of de novo it intended:

"In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

One inference is that as the jurisdiction has been given to the district court, it could only mean 'de novo trial' because district courts are trial courts, not appellate courts.

On the other hand, the district court is basically performing an appellate function, as the matter has already been adjudicated. Also, the term 'de novo' is most commonly used in the appellate context - indeed, I've never even heard the term de novo trial before I just now researched it to see if there was a distinction (but I'm only a law student - it may indeed be more common than I know).

Because the term has a commonly understood meaning, the legislature voting on it most likely attached that meaning as opposed to the more arcane one. Arguing for this is the fact that the bill represented a compromise - comments from the House floor support this ('It merely confers jurisdiction; that's all' - to paraphrase numerous bill supporters). In other words, congressional intent has conveniently shifted from 'merely jurisdictional' while they were selling the bill to 'retrial' after it became law. It would be interesting to hear from the democrats who supported the bill as to what they thought it meant, as we already know what DeLay et. al. think 'de novo' meant. I don't believe the bill would have garnered as many votes if democrats thought that there would be an entire retrial from scratch.

This interpretation favored by DeLay and the DOJ (and the dissent in the 11th Cir.), of course, might raise all sorts of other constitutional questions, as Terri Schiavo's constitutional rights (as Defendant) become that much more trampled upon.

The district court was constrained to the determine whether the new claims by petitioners had a likelihood of success, and those claims were each constitutionally based - entirely unlike the state claims that began this dispute. If the petitioner's wanted the case retried as the case first existed, it should have brought up the state claims, and simultaneously argue that no federal question was necessary because it was bestowed by Congress. In other words, force the district court to treat it like a diversity case. If this is what Congress intended, the petitioner's pleadings do not honestly reflect that understanding.

Because the new claims are constitutional in nature, 'retrying the case' implies a whole new ballgame. An entirely different fact-finding mission would be necessary and because so much of it revolves around Judge Greer's involvement, one that opens up a whole new can of worms. It's not hard to conclude that the DeLay/DOJ/Dissent interpretation of the statute would add years to this litigation.

And again, this brings you back to the bill's passage. Would they have gotten the votes if the voters knew that the bill intended to retry the entire matter from scratch?

posted by scott pilutik at March 23, 2005 06:05 PM

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March 22, 2005

Congress Seeks to Overturn World Series

ST. LOUIS, MO (AP) - Congress voted 205 - 65 today to confer federal jurisdiction on last year's World Series. HR-1917 gives the United States District Court of Eastern Missouri de novo review over the Red Sox stunning four game sweep over the St. Louis Cardinals. "C'mon! Some of those strike calls were clearly off the plate! You can't tell me the umpires weren't advocating for the Red Sox," Tom DeLay (R-Tex) told reporters.

DeLay went on to describe an elaborate plot whereby the Red Sox organization, Bud Selig, John Kerry, and, inexplicably, George Steinbrenner, fixed the World Series in order to deprive the far more God-fearing state of Missouri of its runs, hits and errors.

Pennsylvania Senator Rick Santorum agreed: "We have a situation where if we don't act immediately, a baseball team from the state of Massachussets will hoist a clearly undeserved pennant on opening day while gay married couples watch from the bleachers, thus ruining the game of baseball."

Critics of the bill disagreed, citing the Baseball Almanac, where no World Series has ever been overturned. "Baseball has an appeals process that's worked just fine so far. I'll say it again: Baseball by Legislature is a slippery slope," said an exasperated Curt Schilling, who pitches for the Red Sox when not testifying before Congress.

Cardinal fans keeping vigil outside Busch Stadium called Schilling a "murderer" and urged the court to speedily overturn the World Series as soon as possible. "We lost, sure, but we only want what's fair," Cardinal fan spokesperson Charles Manson said, declining to clarify his remarks.

posted by scott pilutik at March 22, 2005 08:41 PM

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March 21, 2005

midnight madness in the capitol

Steve M of No More Mister Nice Blog does a much better job of summing up exactly why Democrat politicians have been so reluctant to take a stand in the Terri Schiavo case:

Why the hell does it seem that no one in the Democratic Party does what I do? Why didn't anyone see this coming? Why were no Democrats prepared for this possibility?

Did any Democrat even know the facts of the case before this week? How many Democrats know, even now, that this is hardly an unprecedented case, that Terri Schiavo can't possibly recover, that she won't suffer agony as she dies? Republicans know all the Christian conservative Schiavo talking points. Has any Democrat in D.C. ever even looked at the exhaustive Terri Schiavo information page at Matt Conigliaro's Abstract Appeal to learn the truth about the case?

When Terri Schiavo became Congress's priority #1, Democrats -- as usual --
buckled under pressure.

Credit where credit is due, however -- the very few House Democrats who spoke out against the Frankenstein "compromise" bill during last night's debate did a fantastic job of debunking some of the most flagrant lies being told by their Republican opponents, starting with my personal favourite, "She's not brain dead -- She smiles, and laughs!"

A round of applause, then, for Debbie Wasserman Schultz (D - Florida), Jerry Nadler (D - New York), Robert Wexler (D - Florida), Michael Capuano (D - Massachusetts)and David Wu (D - Oregon).

And, of course, a standing O for Barney Frank (D - Mass.) for leading the charge against both a bad law, and bad law.

posted by sangwyn at March 21, 2005 10:11 AM

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next up in schiavo case

A lot of law talking guys are attempting to figure out whether the bill granting Terry Schiavo's parents standing in federal court is constitutional. The short answer is that it's extremely unconstitutional - the question isn't so much whether it's constitutional, but rather: which part of the veritable buffet of unconstitutionality will the district court opt to base its decision on? And after it does that, how quickly can the 11th Circuit affirm the district court so that the matter can arrive at the Supreme Court? And then, what basis will the Supreme Court reject this complaint?

The immediate question, however, is whether the district court will order the tube back in while the case runs the federal gamut. We should find that out in a few hours.

Here are some good constitutional ponderings from various blogs and especially their commenters: Volokh, Balkin, Balkin, Bashman, Bashman, NPR (real player audio) (including interview with Akhil Amar).

posted by scott pilutik at March 21, 2005 09:50 AM

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March 20, 2005

coming to grips

With deep apologies to Monty Python and minor apologies to Billmon (for appropriating his recontextualizing thing), I re-present the following suddenly relevant sketch comedy act in the most tasteful light possible (which I acknowledge may indeed not be possible):

Mr. Praline: 'Ello, I wish to register a complaint.

(The owner does not respond.)

Mr. Praline: 'Ello, Miss?

Owner: What do you mean "miss"?

Mr. Praline: I'm sorry, I have a cold. I wish to make a complaint!

Owner: We're closin' for lunch.

Mr. Praline: Never mind that, my lad. I wish to complain about this parrot what I purchased not half an hour ago from this very boutique.

Owner: Oh yes, the, uh, the Norwegian Blue...What's,uh...What's wrong with it?

Mr. Praline: I'll tell you what's wrong with it, my lad. 'E's dead, that's what's wrong with it!

Owner: No, no, 'e's uh,...he's resting.

Mr. Praline: Look, matey, I know a dead parrot when I see one, and I'm looking at one right now.

Owner: No no he's not dead, he's, he's restin'! Remarkable bird, the Norwegian Blue, idn'it, ay? Beautiful plumage!

Mr. Praline: The plumage don't enter into it. It's stone dead.

Owner: Nononono, no, no! 'E's resting!

Mr. Praline: All right then, if he's restin', I'll wake him up! (shouting at the cage) 'Ello, Mister Polly Parrot! I've got a lovely fresh cuttle fish for you if you show...

(owner hits the cage)

Owner: There, he moved!

Mr. Praline: No, he didn't, that was you hitting the cage!

Owner: I never!!

Mr. Praline: Yes, you did!

Owner: I never, never did anything...

Mr. Praline: (yelling and hitting the cage repeatedly) 'ELLO POLLY!!!!! Testing! Testing! Testing! Testing! This is your nine o'clock alarm call!

(Takes parrot out of the cage and thumps its head on the counter. Throws it up in the air and watches it plummet to the floor.)

Mr. Praline: Now that's what I call a dead parrot.

Owner: No, no.....No, 'e's stunned!

Mr. Praline: STUNNED?!?

Owner: Yeah! You stunned him, just as he was wakin' up! Norwegian Blues stun easily, major.

Mr. Praline: Um...now look...now look, mate, I've definitely 'ad enough of this. That parrot is definitely deceased, and when I purchased it not 'alf an hour ago, you assured me that its total lack of movement was due to it bein' tired and shagged out following a prolonged squawk.

Owner: Well, he's...he's, ah...probably pining for the fjords.

Mr. Praline: PININ' for the FJORDS?!?!?!? What kind of talk is that?, look, why did he fall flat on his back the moment I got 'im home?

Owner: The Norwegian Blue prefers keepin' on it's back! Remarkable bird, id'nit, squire? Lovely plumage!

Mr. Praline: Look, I took the liberty of examining that parrot when I got it home, and I discovered the only reason that it had been sitting on its perch in the first place was that it had been NAILED there.

(pause)

Owner: Well, o'course it was nailed there! If I hadn't nailed that bird down, it would have nuzzled up to those bars, bent 'em apart with its beak, and VOOM! Feeweeweewee!

Mr. Praline: "VOOM"?!? Mate, this bird wouldn't "voom" if you put four million volts through it! 'E's bleedin' demised!

Owner: No no! 'E's pining!

Mr. Praline: 'E's not pinin'! 'E's passed on! This parrot is no more! He has ceased to be! 'E's expired and gone to meet 'is maker! 'E's a stiff! Bereft of life, 'e rests in peace! If you hadn't nailed 'im to the perch 'e'd be pushing up the daisies! 'Is metabolic processes are now 'istory! 'E's off the twig! 'E's kicked the bucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisibile!! THIS IS AN EX-PARROT!!

posted by scott pilutik at March 20, 2005 11:32 AM

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March 19, 2005

Perfect Political Storm

My co-denizen Scott has, as usual, succinctly summed up the myriad of legal controversies and contradictions in which the Terri Schiavo spectacle has become entangled, and far be it from me to gild the lily. However, what's also worth pointing out is that the sordid ongoing struggle has become a perfect storm for the religious right wing and their political allies in congress -- and the White House.

Not only does it give the right-to-lifers an easily exploited posterchild -- She "smiles!" She "laughs!" The only thing she can't do is speak for herself! -- but it also pits the forces of pro-life righteousness against a favourite whipping boy of talk radio's America. Who is to blame? Why, those dastardly "activist judges" who stubbornly insist on enforcing the law, rather than bending to the will of whichever side presents the slickest, most soundbite-friendly public relations campaign. While there has been no shortage of grumbling about "judicial activism" in right wing circles in recent years -- just do a search on FreeRepublic if you need a couple of thousand examples -- a case like this puts the question squarely in the centre ring of public policy debate.

One could expect that the usual social conservative Republican suspects would be only too happy to drag a morbidly incapacitated woman into the spotlight to score political points, but the silence of elected Democrats on the potential consequences of this attempt by legislators to flout the rule of law speaks volumes.

posted by sangwyn at March 19, 2005 07:10 PM

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The Devil Goes Widescreen: How IMAX Threatens Christianity

The New York Times reveals yet another battleground in the anti-evolutionist War on Science. The latest potential portals of heretical thought? IMAX movie theatres:

The fight over evolution has reached the big, big screen.

Several Imax theaters, including some in science museums, are refusing to show movies that mention the subject - or the Big Bang or the geology of the earth - fearing protests from people who object to films that contradict biblical descriptions of the origin of Earth and its creatures.

The number of theaters rejecting such films is small, people in the industry say - perhaps a dozen or fewer, most in the South. But because only a few dozen Imax theaters routinely show science documentaries, the decisions of a few can have a big impact on a film's bottom line - or a producer's decision to make a documentary in the first place.

[...]

"Volcanoes," released in 2003 and sponsored in part by the National Science Foundation and Rutgers University, has been turned down at about a dozen science centers, mostly in the South, said Dr. Richard Lutz, the Rutgers oceanographer who was chief scientist for the film. He said theater officials rejected the film because of its brief references to evolution, in particular to the possibility that life on Earth originated at the undersea vents.

Carol Murray, director of marketing for the Fort Worth Museum of Science and History, said the museum decided not to offer the movie after showing it to a sample audience, a practice often followed by managers of Imax theaters. Ms. Murray said 137 people participated in the survey, and while some thought it was well done, "some people said it was blasphemous."

In their written comments, she explained, they made statements like "I really hate it when the theory of evolution is presented as fact," or "I don't agree with their presentation of human existence."

[...]

"We have definitely a lot more creation public than evolution public," said Lisa Buzzelli, who directs the Charleston Imax Theater in South Carolina, a commercial theater next to the Charleston Aquarium. Her theater had not ruled out ever showing "Volcanoes," Ms. Buzzelli said, "but being in the Bible Belt, the movie does have a lot to do with evolution, and we weigh that carefully."

Pietro Serapiglia, who handles distribution for the producer Stephen Low of Montreal, whose company made the film, said officials at other theaters told him they could not book the movie "for religious reasons," because it had "evolutionary overtones" or "would not go well with the Christian community" or because "the evolution stuff is a problem."

Hyman Field, who as a science foundation official had a role in the financing of "Volcanoes," said he understood that theaters must be responsive to their audiences. But Dr. Field he said he was "furious" that a science museum would decide not to show a scientifically accurate documentary like "Volcanoes" because it mentioned evolution.

"It's very alarming," he said, "all of this pressure being put on a lot of the public institutions by the fundamentalists."

[read the rest here]

It's one thing, of course, for a privately run movie theatre to decide what films to show. But in this case, it seems that, once again, the threat of blowback from a bellicose and aggressive minority is depriving the rest of the populace of the opportunity of the freedom to choose. Make no mistake; this is even a question of arguing for 'equal time' for theories of Intelligent Design. This is a flagrant attempt to put a stop to any discussion of evolution -- and that should send chills down the spine of anyone who cares about education and public discourse. (One has to wonder why the throngs of outraged conservatives condemning bias in schools aren't leading the charge against such a concerted effort to stifle debate.)

The anti-evolution campaign may have been born and nourished in the often unscrutinized schoolboard politics of small town America, but it's hard to deny that its influence is spreading -- and that few institutions, private or public, are eager to take on the challenge. It's important to support and publicize the efforts of groups like the Dover parents, but it is equally essential to make sure that companies like IMAX know that their actions are being watched by those outside the fundamentalist community as well.

posted by sangwyn at March 19, 2005 06:30 PM

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Terry Schiavo and State's Rights

[disclaimer - this post is essentially identical to my comment on a Jack Balkin post which made the same overall point I try to make here and there, only better]

Watching Congress's contortions/attempts yesterday to wield its federal might to prevent the removal of the feeding tube from Terry Schiavo, it really hit me how the federalism question is a double-edged sword. (They sought to use their investigative subpoena power to have Terry Schiavo to 'testify', thus triggering various federal protections for federal witnesses. It obviously didn't work.)

The Republicans (at least the loudest ones, like Tom DeLay) have disingenuously and hypocritically undercut their decades-old reliance on 10th Amendment as a preventative roadblock to Congressional overreaching. If their multiple attempts to circumvent Florida law isn't overreaching, then what is? (And wasn't Florida law good enough for these same people in Bush v. Gore?)

What I'm slowly beginning to understand through this all reading (I'm taking Constitutional Law at the moment) is how inherently difficult (impossible?) it is to remain 'constitutionally consistent' with regard to the friction between judicial review and political procedure in deciding the constitutionality of particular laws.

I find myself rooting for Congress in issues I believe would be good for the country, and rooting for the Court to overrule Congressional Acts I think would be bad. Which is how I suppose most people approach these issues, and it doesn't necessarily make them (or me) bad people.

But I'm also not one to allude to the Constitution as a document imbued with bibli-mystical qualities of natural rights handed down by the Intelligent Designer. The far right does this often (as do some on the far left - ACLU) in public discourse.

While the far right who support the Congressional attempts to intervene on behalf of Terry Schiavo's parents couch this issue as a fundamental 'right to life' issue (a right they would view as having subsumptive power over the lesser issue of State's rights), it hardly seems so clear when you consider that that so many states have passed laws that refute their definition of life as being protectable by the state.

Indeed, their position even flies in face of one of its current pet issues - the sanctity of marriage. By seeking to undermine a state granted right of a husband to decide his spouse's intent in such a situation, isn't Congress infringing on a right they're planning on arguing is fundamental enough to merit its own Amendment?

Congress has been Democratic throughout most of Rehnquist's tenure. Presumably, if both houses continue to be Republican led, the judiciary will soon have to confront laws promulgated by Republicans and somehow reconcile their original positions. Do they hold their original lines or do they contort to distinguish on immaterial factors?

It's also worth noting that the safety and security of our judges has unfortunately become a 'need to address' issue with the recent murders of federal judge Lefkow's husband and mother and Atlanta state judge Rowland Barnes. Tom DeLay's pledge to hold Florida state judge Greer in contempt of Congress does little to douse the heated rhetoric that has led to numerous death threats and requires Greer to travel with a security detail. Indeed, the grass-roots opposition to Greer derives, organizationally, from the anti-abortion movement, members of whom have hypocritically justified killing as a suitable means to ends on prior ocassions.

posted by scott pilutik at March 19, 2005 03:47 PM

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March 13, 2005

Intervener Motion Denied in Dover

Intervener motion denied in Dover

The motion by a group of parents (Michael and Sheree Hied, Raymond and Cynthia Mummert, and James and Martha Cashman) seeking to intervene as defendants in the Kitzmiller v. Dover Area School District case has been denied. The court essentially adopted the plaintiff's reasoning as found in their opposition memorandum, which I summarize in an earlier post here.

Moreover, the Dover School District Board's motion to dismiss has also been denied (this was fairly expected).

The court's order denying both motions can be found here [pdf].

The quite-reliable York Daily Record covers the denials here.

posted by scott pilutik at March 13, 2005 05:16 PM

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March 10, 2005

The Vatican's sex abuse oversight - operational or discretionary?

During Condoleezza Rice's recent visit to the Vatican, the Holy See's own Secretary of State, Angelo Sodano, asked that the US State Department intercede on its behalf in a class-action sex abuse lawsuit filed in Kentucky that the Vatican is not entirely comfortable with. As the National Catholic Reporter article helpfully points out, suing foreign entities in United States courts is mostly a fruitless task.

Mostly.

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment;

except this paragraph shall not apply to -- (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused[.] (emphasis added)

My gut instinct would be to say that the answer to that question changes according to circumstance. While the Vatican was not originally in the business of overseeing child molesters, it can no longer claim ignorance that a transformation of sorts has taken place. Indeed, despite its many contortions meant to pretend the problem does not exist, the Vatican's main arguments (It's the fault of gays and/or promiscuous American culture) will fall on deaf ears in an American courtroom. And not because the eevil secular humanists have taken over, but because those arguments are patently ridiculous.

It's not entirely apparent how 'discretionary' would be interpreted in this statutory context, and and underabundance of case law doesn't help focus things. The 9th Circuit distinguishes between "operational" and "discretionary" acts of a government. This test has been employed in Thompson v. US, 592 F.2d 1104, 1111 (9th Cir. 1979), Olsen v. Mexico, 729 F.2d 641, 648 (9th Cir., 1984), and derives from a a pre-FSIA case, Dalehite v. US, 346 U.S. 15 (1953), where the Supreme Court defined discretionary as:

"[M]ore than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion."

So then, is covering up decades of child abuse a matter of policy? Does running a pedophilic dating service require government decisionmaking at the highest levels?

Or is negligence, which has surely been elevated to recklessness by this juncture, operational by nature? States don't plan to act negligently nor recklessly pursue goals as a matter of policy.

The Holy See would argue that they have confronted the issue of sex abuse as a state as evidenced by issued various public statements which resulted from meetings meant to establish a coherent policy positoin. Categorically then, the Vatican would claim that sex abuse is a discretionary function simply because it has considered the matter and confronted it as a matter of policy.

(Many would certainly (and fairly) argue with this, but realize that categorical tests employed by the courts do not consider related factual issues or even the particular nature of the state - the issue would be restricted simply to whether oversight by a sovereign entity (any sovereign entity) regarding sex abuse occurring in United States is, by its nature, operational or discretionary for the purpose of extending liability to the negligently overseeing state.)

It's worth researching more deeply and perhaps in a subsequent post I'll examine the entire line of §1605(a)(5) cases (there aren't many) to see if I can't discern a more exact doctrine.

But I can't help but think that had the Mexican government decided, in prior meetings, as a matter of policy, to let the Tijuana Airport rot, that their motion to dismiss would have prevailed. I could be wrong, but I would like to think that gross negligence would have somehow trumped.

One wildcard here is the fact that the Vatican is only a state in the loosest sense of the term. It fits almost none of the objective criteria of statehood (a permanent population (you only live in Vatican City if you work in Vatican City); a defined and substantial territory (1/8 the size of Central Park); a government (ok, they have one.. but who are they governing?); and capacity to enter into relations with other states (ok, they can have this one too... but the treaties they do enter into are notoriously one-way - who in the Vatican can be bound?)). Many states indeed recognze the Holy See as a state, and the UN sees them as a non-member permanent observer, like Switzerland. This gives the Holy See enormous pull, including a de facto veto in all conferences.

But what if the United States ceased recognizing the Holy See as a state? While this doesn't seem like a likely possibility this week, it could be on the horizon. The Holy See is unlike any other state in that it more closely resembles a religious mission, and in that capacity, controls agents operating in various other states, in a respondeat superior sense. Those agents enjoy protection, take orders from, and pay outside allegience to their corporate body politic. Under the same circumstances confronting us today, replace "Holy See" with any other state that comes to mind, and you get the idea. But these reasonable points have an uphill climb in this country, where so much deference is granted to religion that it has long since gelled into a blind-spot.

And a court cannot derecognize a state for the purpose of assigning liability under the FSIA as a purely constitutional matter, especially where numerous treaties between this coutnry and the Vatican exist.

But the Kentucky class action has Sodano unnerved enough to have asked the Bush administration to intercede. And if they do, all the parties should be shamed right onto the carpet.

posted by scott pilutik at March 10, 2005 09:34 AM

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March 05, 2005

Scalia and Counter-majoritarianism

The oral arguments on the Ten Commandments seemed typical enough, but I get the sense that we're going to lose this one, O'Connor swinging to the right. But I only want to direct attention to something Scalia said, which outraged the hell out of me. As found here:

Scalia agreed the message of the commandments is religious in nature but that the First Amendment's original intent allowed such displays if erected by elected officials. "It's a profound religious message, but it is a profound religious message believed by a profound majority of the American people," he said. "The minority has to be tolerant of the majority view that government comes from God."

So Scalia, the strict constructionist champion, found some place in the Constitution that speaks of the rights of the majority? Maybe he can point us there. And is there really a majority view that the "government comes from God?" There is clearly a majority of people who believe in God and support the existence of the Ten Commandments monument at the Texas State Capital, but it's not quite the same thing to believe that the government is derived from God. Contrary to what the wingnuts might assert from time to time, there are numerous countermajoritarian principles to which our government adheres (2 senators from each state regardless of population - willing to give that up red states?). Judicial review is counter-majoritarian by its very nature. Scalia advances a dangerous proposition, one that I've seen pop up with alarming frequency at FreeRepublic.com, which is that the majority on any issue can contravene the protections and rights that minorities have come to rely on. And Scalia even recognizes the ridiculousness of the argument by Texas that this particular reference to the Commandments has some secular purpose:

"If you want ... to say that it only sends a secular message, I disagree with you," he told Abbott at one point. Later, he added, "I really consider it something of a Pyrrhic victory if you win on the grounds of your argument."

Attention has also been drawn to the fact that on the ceiling of the SCOTUS chamber is an engraved depiction of Moses holding one of the Commandment tablets. While I'm not thrilled that it's there myself, the Moses depiction is contained within a larger diorama of other historical 'lawgivers' whereas the Texas State Capital hosts a large, readable, version of the Commandments which obviously convey a far deeper impression than the 'ceiling Moses'. Additionally, only 2 of the Ten Commandments are actually 'illegal' under US law. What does that actually say about their pertinency as a 'foundation' for our existing law? Not a lot. Moreover, the two 'illegal' Commandments (stealing, killing) are illegal in every civilized country in the world - even those that didn't enjoy judeo-christian origins.

posted by scott pilutik at March 5, 2005 11:18 AM

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March 02, 2005

Dover Debate on ID

The York Daily Record has a nice article about a 3 hour debate which took place between Thomas More (Richard Thompson) and the ACLU (Vic Walczak) at Elizabethtown College on March 1.

They were each given 45 minutes to make their arguments. Then they were given 10 minutes for rebuttal.

Thompson used nearly 15 minutes of his time to present an updated version of "The Emperor's New Clothes" and to tell a joke about the first lawyer to go to heaven.

"A town with money is alot like a mule with a spinning wheel. Danged know how he got and danged know how to use it." - Lyle Lanley

In his "emperor" metaphor, Thompson said evolution is king. And anyone who tries to make the king aware that he is naked is "stupid and unfit for public office." Then he said the Dover Area School Board is the child in the story, courageous enough to tell the king he has no clothes on.

[...]

Thompson also said legal efforts to keep God out of classrooms, and other government funded forums, were part of a greater effort to "de-Christianize America." Later though, he said intelligent design has nothing to do with Christianity or religion, saying it offered a legitimate scientific alternative to evolution.

No word on whether Walczak pounced all over this, but nice pickup by the reporter. Here we have the superfunded Thomas More Center blowing shotgun holes through its feet by making arguments that, had they any sense at all (and read the Cobb Cty. Decision), would force them to tears had their clients argued the same.

[Thompson] offered up a three-prong test the court uses to determine if something is religious. He said intelligent design does not address the ultimate question of our existence, does not have any liturgy or clergy and does not intend to identify the designer. Thus, he said, the court would see the theory is not religious.

He's offering! How nice and intellectually dishonest of him. As Walczak was forced to point out later on, Thompson's offering is wholly unrelated to the religious test that will be applied by the Middle District of Pennsylvania and any court that will hear its appeal.

When Walczak began his 45 minutes, he asked the audience if everyone could see his clothes.

Then he said intelligent design is inherently religious, and that the test Thompson referred to was used more by the courts to determine if inmates could grow their hair long or demand more recreation time because of some unfamiliar religious claim.

[...]

After the debate, several students gave their opinions.

Vanessa Ide, a freshman, said Walczak won.

Fellow freshman Laura Belkot agreed.

"(Thompson) presented an awful lot of fluffy stuff today," she said. "Walczak definitely made the better arguments."

posted by scott pilutik at March 2, 2005 05:18 PM

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