Archives for August 2005

August 29, 2005

Balkin defends Living Constitution

Jack Balkin performs a fine service in supplying us with the one-stop-shop style column for Slate attacking Originalism. Balkin's point is that while Originalism sounds seductive, no one truly adheres to it since it is impossible. The column also serves as a fairly thorough laundry list of hypocrisies by Scalia and Thomas on this matter, who cite Originalism when it politically suits them but more often than not reach inside the precedent well when an Originalist position would clash with their ideals (such as their both finding a 14th Amdt equal protection argument in the Warren court for the Florida voters in Bush v. Gore. One academic point Balkin declines to make is simply that legislation is basically a collective compromise of often clashing intents and, as such, finding intent is just as much a crapshoot as anything else.

Excerpt:

But there's a more important problem here: Non-originalist decisions that guarantee race and sex equality, that protect free speech and the rights of criminal defendants, and that give Congress power to protect the environment and secure equal civil rights are not unfortunate errors that we are just stuck with because of "reliance." They are some of our country's proudest achievements. There's something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with. For if decisions like Brown, Loving, Craig v. Boren, and Griswold v. Connecticut are mistakes, we should read them as narrowly as possible and overturn them at the first opportunity. But that's not how Americans regard these decisions. They are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal.

The great irony is that living constitutionalism rests on much firmer jurisprudential foundations. Originalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not. A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances. Original meaning does not mean original expected application. For example, the Constitution bans cruel and unusual punishments. But the application of the concepts of "cruel and unusual" must be that of our own day, not 1791. Living constitutionalists draw upon precedent, structure, and the country's history to flesh out the meaning of the text. They properly regard all of these as legitimate sources of interpretation. In fact, most people who call themselves originalists agree; even they don't regard original understanding as controlling in all cases.

posted by scott pilutik at August 29, 2005 09:16 PM

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August 19, 2005

Billy Graham and North Korea

[09:34] Scott: Gift to Kim Jong Il from U.S. Religionists
Pyongyang, August 18 (KCNA) -- Leader Kim Jong Il received a gift from U.S. religious leader Rev. Billy Graham and his son, Rev. Franklin Graham. It was handed over to DPRK Foreign Minister Paek Nam Sun on Thursday by the special assistant to Franklin Graham on a visit to Korea.
[09:34] Kady: you know, he gives the general a ton of crap
[09:34] Kady: at least according to the nkpr
[09:34] Scott: billy graham?
[09:34] Kady: if you search for graham, there are all kinds of similar releases
[09:34] Kady: yeah
[09:34] Scott: huh
[09:34] Kady: i have absolutely no good explanation for it
[09:34] Scott: well, that's real interesting
[09:34] Kady: but it's interesting
[09:34] Kady: yes
[09:35] Kady: it drives me crazy that they never say WHAT these gifts are
[09:35] Scott: what good would buying influence there be?
[09:35] Kady: well, if he's under the illusion that it might lead to an invitation to hold one of his revival camp shows
[09:35] Scott: i understand for other heads of state, or potential heads
[09:35] Kady: which it never, ever will
[09:35] Scott: yeah, perhaps it's purely delusional
[09:36] Kady: that's honestly the only reason i can think of
[09:36] Scott: perhaps it's aid for the starving people
[09:36] Scott: being misconstrued as gifts for the general
[09:36] Kady: that could be it, yes
[09:37] Kady: The Grahams' Involvement
North Korea was significant to the Grahams for a couple of reasons. First, Ruth Bell Graham attended high school in Pyongyang in 1933, nearly 20 years before the Communist takeover of North Korea. Second, Reverend Graham had a special interest in speaking there, primarily to attempt to bring some reconciliation between North and South Koreans, many of whom were families split apart by the hostilities between sides. After several attempts to discretely plan a trip there, including an unsuccessful attempt by Pope John Paul II to arrange a visit, Billy enlisted the help of Dr. Stephen Linton, a scholar at Columbia University's Center for Korean Research. Dr. Linton arranged for him to meet North Korean's ambassador, Ho Jung, and Billy and Ned Graham later had a special and unprecedented meeting with President Kim II Sung, founder of North Korea and the US's primary adversary during the war. Billy's visit there may have paved the way for former President Jimmy Carter's 1994 meeting with President Kim, who by that time was eager to mend relations with his former enemies. In addition, Billy's visit preceded President Kim's invitation of the leaders of the Protestant and Catholic associations to his annual New Year reception, the first time he had ever recognized those associations at all.
[09:40] Scott: i'd say that points to influence buying
[09:40] Scott: rather than starve-aid
[09:40] Kady: yeah
[09:40] Kady: but to what end?
[09:40] Scott: delusional ends
[09:41] Kady: i mean, unless this is an effort to gain brownie points with the US administration
[09:41] Kady: as a trusted third party
[09:41] Kady: that could deal with nk
[09:41] Scott: remember though, christians think in long term
[09:41] Scott: if nk fell, who would be best placed to replace doctrine?
[09:41] Kady: yeah .. it would be billy's time to shine!
[09:41] Kady: and he has feelers out already, and knows the people

posted by scott pilutik at August 19, 2005 09:45 AM

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August 17, 2005

pope immunity

The Vatican has curiously chosen to wake President from his August slumber to request that he immunize Pope Benedict from a lawsuit in a federal district court in Houston (Southern Division of Texas). The suit arises from events that date from then Cardinal Ratzinger's days as head of the Congregation of the Doctrine of the Faith (CDF), which came to assume a great role in sexual abuse complaints brought through church channels, primarily as a final appeals board.

What makes this maneuver curious is that there was no need to make this request, as a State Dept. even points out in the article -- a head of state is immune from service in any suit that arises here, even if his involvement was not as a head of state, and regardless of the matter (providing the US recognizes the legitimacy of the head of state in question. See Noriega, Hussain, et. al.)

The government of a foreign state may be implicated in a suit here, however, under the FSIA, although it's really hard to nail any government on anything other than non-payment of a debt. A tort exception exists, but it almost never used.

I think this indicates that the Vatican is increasingly worried about their immunity in general, especially in these priest-abuse cases, where a clear enough master-servant relationship exists to implicate the Vatican under an agency theory. So two general possibilities seem to exist to explain the Vatican's request: 1) they failed to comprehend American law to realize that there was no need to make such a request, or 2) they picked a legal strawman issue for strategic reasons - perhaps hoping a public pronouncement from Bush would provide some benefit for them.

I personally don't see how drawing attention to then-Cardinal Ratzinger's time as head of CDF does them any good at all, but the Vatican often sees things very differently from us 'westerners'. The most cynical angle I can think of has them creating this strawman over head of state immunity in support of their more tenuous government immunity. But while the public may indeed conflate issues, courts generally get around to sorting them out.

It's more likely, I think, whoever issued this request simply didn't understand US law.

posted by scott pilutik at August 17, 2005 10:55 AM

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August 02, 2005

Surprise! Bush endorses ID

Our intelligence-challenged president has finally weighed in on Intelligent Design, and has chosen the 'teach the controversy' talking point.

"You're asking me whether or not people ought to be exposed to different ideas, the answer is yes," the president said.

Does that mean that we also teach the tooth fairy theory of dental hygiene? It's certainly a different idea, and is backed by about the same amount of evidence.

Bush's quote in the AP story is indicative of a neat little rhetorical parlor trick he picked up somewhere along the way, where he rephrases precisely what was not asked into a straw man question that he then answers in the affirmative. It's entirely safe to say that none of the five reporters (all from Texas, btw) asked Bush whether "people ought to be exposed to different ideas".

Of course, the issue is hardly about exposure to different ideas, but rather about scientific standards. And since this administration has all but declared war on science, it's no surprise that they'd toss this salvo.

Whenever a president drops any calculated bomb/hint on a cultural issue, debate rises over the topic, and we collectively derail from some more important issue. Not that what we teach kids isn't important -- but there is simply no controversy over the factual basis of evolution except from people with noted religious agendas.

Anyway, it's comforting to read the always rightously pissed PZ Myers in depressing times like this, so I suggest you do that.

posted by scott pilutik at August 2, 2005 03:32 PM

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