Carp of the Day

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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Monday, June 30, 2003

Operating, just for the moment, under the delusion that this blog has readers, I'd like to announce, I'll be on vacation for the next two weeks. Possibly there'll be some posting.

-- posted by Clayton 6/30/2003 11:24:00 PM | comments (0)

Saturday, June 28, 2003

Cure for AIDS found. Andrew Sullivan dead. On the same day. It's a funny old world, isn't it?

-- posted by Clayton 6/28/2003 03:01:00 PM | comments (0)


(Talk about having no sense at all. Let's set aside the question whether a trademark on a phrase already in common use could possibly be valid as to that common use, or whether its continued unauthorized and unacknowledged use would dilute said trademark. This fool has destroyed, in advance, any possible goodwill he might otherwise have enjoyed, so the trademark he is trying to claim cannot have any value worth preserving.)

-- posted by Clayton 6/28/2003 02:22:00 PM | comments (0)

Friday, June 27, 2003

Rand Simberg comments on speed limits.

When I lived in Honolulu (be it said, this was more than thirty years ago), the Iolani Freeway worked just as he desires. I don't think he'd like the numbers, though. There were three lanes each way; from right to left the maximum speeds were 35, 45, and 55 mph.

-- posted by Clayton 6/27/2003 12:50:00 AM | comments (0)

Tuesday, June 24, 2003

Eugene Volokh and Instapundit both comment on a really idiotic rallying cry from Dick Gephardt:

When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day.
Granted, Gephardt is a waste of space. But is there anything really surprising about the sentiment? Do Reynolds and Volokh have any call to be shocked, shocked? We have a tradition of such things going back to Andrew Jackson, and from there all the way up to when Clinton shitcanned the Supreme Court's Beck decision because it interfered with union electioneering on the Democrats' behalf. The only departure Gephardt has made is that he has proclaimed as a matter of principle (for lack of a better word) what others were content to have happen under the table. And, let's face it, sooner or later the Supreme Court, in one of its legislative fancies, is going to screw up badly, pissing on just the wrong group, whereupon Congress, the President, and the States will join in publicly rejecting and nullifying its decision. The Court has been dancing in minefields for decades, now; only the closeness of the divisions in the Senate and House has kept the things from exploding.

UPDATE: Andrew Sullivan has this to say:

Does Gephardt understand even the basics of constitutional law?
-- to which the rejoinder is, does Sullivan understand even the basics of U.S. history?

-- posted by Clayton 6/24/2003 12:50:00 AM | comments (0)

Saturday, June 21, 2003

General thoughts on the subject of gay marriage, with a major tangent heading off thataway. There has been a lot of crowing about the decision out of Canada, from a lot of persons who ought to know better. My suspicion is that they do know better, but more on that in a bit.

I've been playing around for a while -- though not in this context -- with the idea of reviving the old common-law crime of praemunire. Given the overall topic, there is no particular reason to mention this now, other than, well, it's been on my mind on and off quite a bit lately, and any excuse will do. OK, praemunire. Sorry, that's all the name it has, and the name itself is overworked. It stood for four different things: first, the writ whereby proceedings against the crime were commenced (which began, in law-latin, with the words "praemunire facias" -- "forewarn [him] to appear" -- thus giving the name, never mind that it otherwise doesn't make any sense at all); second, the crime itself ("The facts will plainly show that the prisoner forewarned"); third, the punishment imposed for that crime ("You are sentenced to a severe forewarning"); and fourth, an overflowing garbage pail of other criminal acts, a great many of them bearing no relation at all to the original crime, but which were directed by law to be punished in the same way ("... shall incur all the penalties of a forewarning"). All this forewarning sounds a lot like the United Nations, huh? Actually, the context isn't all that far off. The original crime which went by the name of praemunire was: the procuring, or attempting to procure, foreign legal process intended to have effect domestically. Its punishment, in brief, is best described as, "everything that can be inflicted, short of death." Its principal use was as a potent weapon in the arsenal of the Crown of England in its centuries-long battle of wills with the See of Rome, which culminated in the Anglican Schism: Papal pretenses to legal authority over the Crown or its subjects were neatly short-circuited, since any attempt to call upon that pretended jurisdiction, or to enforce its decrees, was itself a highly criminal act.

As I said, I've been thinking about it for a while, but not in the context of gay marriage. What I had in mind were such things as the International Criminal Court, the Belgian pretense to world rule, and the like: the "international law" orgy which has lately been going far out of its way to cause as much trouble as it can think up. In a legal atmosphere in which no one seriously pretends that a foreign jurisdiction can pass upon domestic matters, there is no need for a crime such as praemunire, but that is not the legal atmosphere we have now. Instead, we have a torrent of legalistic cockroaches swarming from under the baseboards, all of them proclaiming the supremacy of said foreign jurisdiction. So I think the revival of praemunire as a crime -- be it said, with a much more temperate punishment -- is worth consideration, because it's looking more and more like we're going to need it.

So, back to gay marriage. The tie-in with the I.C.C. and praemunire, tenuous as it is, should be obvious: It is, the pretense that the half-assed rulings of a wildly intoxicated (not to say shit-faced) court in Canada ought to have an effect on the United States and its laws. I am not saying that the penalties of a praemunire should be visited upon those saying it -- far from it -- but I think we should at least recognize the high contempt they offer to their own country and its laws, and, given that, I see no reason why they should not be treated with that same contempt.

I have discussed before that the Constitution has nothing to say on the subject of gay marriage, and that it is therefore beyond the authority of the Federal Courts to rule one way or the other upon the subject. I haven't discussed, though, just how newly-minted is the idea that it does. Our 227-year history may be divided as follows: 200-plus years for the proposition that it doesn't; about twenty years, starting about the time of Bowers v. Hardwick, of a small but gradually increasing constituency among the legal academy for the proposition that it does. Even when Bowers was being argued before the Supreme Court, the proponents of sodomy-is-constitutionally-protected took elaborate pains to deny before the Court that the Constitution commanded the acceptance of gay marriage. And no doubt at the time such persons as Glenn Reynolds and Eugene Volokh would have been at those same pains to say so. The only thing that has changed between then and now is, there's a consensus in the academy that now they can get away with it. What that doesn't say, though, is why they're pushing it. The idea, "It's the right thing to do," is a non-starter. These persons are all lawyers; they know -- or, at least, ought to know -- far better than the laity just how shoddy is what for lack of a better term I will call the constitutional argument, and still they forge ahead, trying to shove the country in a direction it has several times refused to go. The idea, "crucial liberties are being crushed," is likewise D.O.A.: The country's liberties have been holding up just fine.

There are some clues, though, in certain things Glenn Reynolds and Andrew Sullivan have said lately, as they attempt to offer a reassurance to conservatives, along the lines of, "Permit gay marriage and watch the ranks of the conservative bourgeois swell with new happily-married couples." This is highly unlikely, but let that pass. It is of no more value than the disingenuous reassurances twenty years back that a right to engage in sodomy would not produce gay marriage as a consequence, but let that pass, too. Here we have a clear indication, their thoughts are running to the political effects; they're just not being honest about the political effects they have in mind. We all know what Sullivan has in mind, which is to say, body parts; the vigor with which he stokes his rationalizations on this topic leaves no spare ergs for reason. What Reynolds has in mind, though, I think, is an old story: the preservation of an activist Supreme Court. One inescapable consequence of a Supreme Court holding that gay marriage is a constitutional right would be yet another constituency forever set in opposition to the idea that the Federal Courts ought to be bound by the actual Constitution, and thus in favor of the proposition that lawyers should trump legislatures. It's the same old power grab, nothing more.

I would also like to point out, as to Sullivan: If he finds Canada's new law attractive, nothing prevents him from moving there and having the benefit of it. He's already dumped one country, so obviously no principle stands in his way. Consider, on the one side, the fact that he isn't doing so, and all the reasons, basically amounting to no more than petty convenience, that he would offer as to why he isn't; and, on the other, his incessant fingernails-on-the-chalkboard moralistic screeching on gay marriage; and tell me: What is the actual measure of the value he sets upon the supposed right to engage in sodomy?

Finally, a snarky observation, just in passing, upon that moralistic screeching; those with a taste for irony, please note. A short while back, when William Bennett and his gambling habit were in the news, Sullivan delivered himself of what I thought was a really rich insult, all things considered: He called Bennett "a National scold."

-- posted by Clayton 6/21/2003 12:34:00 AM | comments (0)

Wednesday, June 11, 2003

Steven Den Beste on the possibility of Canada going tits-up. His correspondent advances the possibility of Canadian provinces applying for admission as States to the U.S.; Steven dumps cold water on the idea.

I don't think the objection he raises has as much weight as he gives it. Certainly his survey of past U.S. practice misses some important details. Historically, there have been four hurdles for admission: a sufficient population such that equal representation in the Senate doesn't produce a totally ludicrous result (which held up statehood for a lot of newly acquired but mostly empty territory), a local government as a going concern (which held up statehood for a lot of Western states), an existing local legal framework the U.S. can get along with (which held up statehood for Utah), and a sufficient indication of attachment to the United States (which is holding things up for Puerto Rico). And the U.S. has been known also to abandon the sobriety Steven describes, when certain intoxicating possibilities presented themselves (California).

The first point would scotch the idea of statehood for those provinces with populations in the mere tens of thousands. The third and fourth points dispose of Quebec. Other than that, though, and provided that Ottawa wouldn't want to dispute the matter, I don't see any significant impediments -- at least, not on the Canadian side of the border. The remaining provinces already have sufficient population, existing governments, and legal systems arising from the same common-law tradition. I would expect, actually, that such objections as would really control the matter, whether they were voiced or not, would arise from the nature and structure of things in D.C, and would be the same no matter whom the applicant, nor how well established his bona fides: How many more warm bodies can be seated comfortably in the Senate chamber? How many States would lose members in the House, if it were not expanded? and which States? (California would certainly bitch a blue streak.) How many more Representatives must be added, so that no existing States would lose members, and what would that do to a single member's clout? Would we have to expand the Capitol building? Would the mere proposal to do so touch off a massive historic-preservation sobfest? Who's going to lose a plum seating assignment, or choice office space, to make way for the new members? And just how would we fit those new stars onto the flag?

-- posted by Clayton 6/11/2003 03:47:00 AM | comments (0)

Tuesday, June 10, 2003

Andrew Sullivan, yet again, on gay marriage. Compare with his previous posts, and my commentary upon them here:

My suspicion is that Sullivan hopes for the establishment of gay marriage by fait accompli: that the same man who publishes an elaborate denial now about interstate comity will be quite happy to publish the-Supreme-Court-says-the-Constitution-says-it's-the-law-of-the-land-so-get-over-it-already in the future.
I think it's safe to say, what I before offered as mere conjecture is now substantiated.

UPDATE. I note, also, Sullivan is soliciting donations. He may find an explanation here, why I will not be contributing.

-- posted by Clayton 6/10/2003 02:40:00 PM | comments (0)

Friday, June 06, 2003

Steven Den Beste publishes a letter from a French correspondent.

I am reminded of Mark Twain's inquiries into which were more civilized: the French or the Comanches?

-- posted by Clayton 6/06/2003 06:25:00 PM | comments (0)

I have no patience for Martha Stewart, any more than for such publications as Good Housekeeping. (That doesn't keep my wife from subscribing to Good Housekeeping, but that's a different matter.) And I have no opinion on the insider-trading charges against her. But this is outrageous. If Martha Stewart proclaiming herself innocent is sufficient to support a charge of stock price manipulation against her, then the SEC's incessant trumpeting its case is sufficient to support that same charge against the SEC itself.

-- posted by Clayton 6/06/2003 04:35:00 PM | comments (0)

Eve Tushnet on, among other things, Bush v. Gore. I disagree: Bush v. Gore came to the correct result, at least insofar as it slapped down the Florida Supreme Court; it's just that the opinions are rotten.

A big problem is, everyone is so accustomed to thinking of a clear division of legislative, executive, and judicial branches, all bound up at the same level of sovereignty, that no one bothered to notice: It doesn't apply to the selection of Electors. The State legislatures' powers to set the rules in this area arises directly under the Federal Constitution. When a State legislature makes law on this topic, it sits as a Federal body, making law at the same level of authority as the United States Code. No one would think the United States Supreme Court would owe any deference to the construction a State court puts on any part of the U.S.C.; the same is true of the laws made by State legislatures operating by the authority of a direct positive grant of power in the Federal Constitution. To the extent that the Supreme Court of Florida had any judicial authority in the case at all, it was operating as an inferior court, directly controllable by the full supervisory authority of SCOTUS. But I will not grant SCOFLA even that much.

The Federal Constitution is clear on the matter (and McPherson v. Blacker is even clearer): The power to specify the means whereby Electors are chosen belongs to the States' legislatures: not their governments, the legislatures. The Constitution confers no role at all upon their executives, nor upon their judiciaries. As McPherson v. Blacker sets down, the State constitutions can have nothing to say about Federal elections. This is true of the entirety of the State constitutions; among other things, it includes Article V, Section 1 of the Florida Constitution, where it says, "The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts." The State courts, in this context, are not co-equal branches of the State governments; if they are anything at all, they are agents of the legislatures, and subordinate thereto. To the extent that the Florida legislature, through its laws, provides any role for its courts -- including its Supreme Court -- in the conduct of elections, their function is no more nor less ministerial than that of, say, the Secretary of State; if the courts object, they may fall back upon the precedent of Hayburn's Case, but that is their only recourse. So it doesn't matter that SCOFLA sat with all the trappings of a court of law, independently empowered to hear and decide the case before it. It had no such authority, and, what is really important here, no claim of deference upon SCOTUS in the interpretation of laws made directly pursuant to the Federal Constitution. On the contrary, as the Florida legislature was exercising powers granted directly by the Federal Constitution, SCOTUS had full authority to interpret those acts itself, and should have said so.

I should note, when Bush v. Gore was before SCOFLA the first time around, the Chief Justice asked Bush's lawyers if they were challenging the Court's jurisdiction, and they said, no. As a matter of law, as opposed to tactics, they ought to have said, yes.

So, anyway, what ought to have happened in Bush v. Gore, in my opinion, is, SCOTUS should have vacated all decisions made by SCOFLA upsetting the statutory scheme crafted by the Florida legislature, and they should have returned the matter to the County Canvassing Boards, and to the Florida Secretary of State, where it belonged under Florida law.

I have, thus far, left out the part of Bush v. Gore where SCOTUS put an end to the recounts. That part is indefensible. It was entirely proper for SCOTUS to say, SCOFLA's incredibly twisted decision, whereby recounts were ordered to proceed, and partial results were ordered to be certified, here (in the counties where the recount was so far favoring Gore), and recounts forbidden to proceed, and partial results ordered to be ignored, there (in the counties tending Bushward), was vacated. It should have said nothing more. The only body with proper authority to put an end to the recounts -- setting aside the Florida statute, indefensibly nullified by SCOFLA, that delegated that authority, with proper controls, to the Secretary of State -- was the Florida legislature, and, in fact, it was revving itself up to do so. SCOTUS should have stayed the hell out of it.

-- posted by Clayton 6/06/2003 04:10:00 AM | comments (0)

Now this is dumb. At least, Audi is dumb; I'm not sure quite where Oman is coming from. Audi's entire performance depends upon burying a single devastating detail: where the burden of proof actually lies. Public policy is presumptively valid; it may be made upon any grounds or no grounds, religious or not, and it does not have to justify itself, whether to radical secularists or anyone else. Those who object to this or that policy on establishment grounds must prove their case, not the other way around. So much for Audi.

-- posted by Clayton 6/06/2003 01:19:00 AM | comments (0)

Thursday, June 05, 2003

Brad Wardell gives a demonstration why one should not attempt to bind up war within the rules and procedures applicable to a state of civilization. Try this, Brad:

  1. For point #1, substitute the following terms:
    • "scientists" ==> "the Wardell children"
    • "UN inspectors" ==> "Child Protective Services"
    • "Iraq" ==> "the Wardell home"
    • "have WMD" ==> "abuse his children"
  2. For point #2:
    • "Saddam" ==> "Brad"
    • "UN inspectors" ==> "the police"
    • "the agreement ... first gulf war" ==> "his prior conviction"
    • "WMD" ==> "meth lab"
  3. For point #3:
    • "Surveillance flights" ==> "Daily urine drops"
    • "UN inspectors" ==> "the police"
    • "fly the U2s" ==> "collect samples"
    • "had no WMD" ==> "wasn't mainlining heroin"
  4. For point #4:
    • "Taking pot-shots ... no-fly zone" ==> "Sassing the government"
    • "WMD destruction" (huh?) ==> "schismatic tendencies"
    • "sanctions would be lifted" ==> "he could live in peace"
    • "attacking US/British planes" ==> "posting anti-government screeds on his blog"
Four variations on "only the guilty would resist": Do they still look persuasive?

The vindication of a casus belli lies in winning the war, and in nothing else. The correct answer to the "missing WMD" mantra -- assuming, arguendo, that the ones chanting it even deserve an answer -- is, "Hey, we went to war, and we won. Get over it."

-- posted by Clayton 6/05/2003 05:11:00 PM | comments (0)

Monday, June 02, 2003

More on recruiters' promises and Congressional defalcations. I've been thinking over one of the things said in the comments on the post I mentioned previously:

The Government is a legal personality. To say that no expenditure shall be outlayed but by law exonerates the Government from law suit.
The government is sovereign. It cannot be made a defendant in its own courts without its permission.
The Fed is liable as a defendant..otherwise we have unaccountable government.
And your point is?

That's not my main point, though. I've been contrasting this, in my mind, to some of Eugene Volokh's recent comments over on The Volokh Conspiracy on copyright law, on which subject he is held out as an expert. On the subject of the Studio Schmooze Act, extending the period of copyrights so that Mickey Mouse wouldn't fall into the public domain just yet (one can see how that issue would weigh heavily upon what for the sake of argument I will call the Congressional mind), Volokh several times floated the notion that, having passed the extension, it was beyond Congress's authority to revoke it, since it would amount to the confiscation for public use of a property interest without just compensation. My thought at the time (other than noting Volokh's, shall we say, questionable equivocation upon "public use") was, if Congress did revoke it, there wasn't a damn thing anyone else could do about it. I wonder, though, what Volokh would say about this case. The same chain of reasoning would apply as well to such things as Social Security, should Congress ever encounter the urge to do something about the mess it has made.

-- posted by Clayton 6/02/2003 11:26:00 PM | comments (0)

Emperor Misha I on the obligations laid upon the Federal government by recruiters' promises. There are none. It doesn't matter that the result is unjust; the courts cannot cut checks from the Treasury unless Congress passes a law specifically authorizing the payment.

Hmmm, seems like we're on a military theme, here; I made reference in the last post to my being a Navy brat. Among other things, my childhood was peppered, from long before I understood the discussion, with overheard conversations about recruiters' lies, and what their promises are really worth; that's probably the single biggest reason why I never gave any serious consideration to joining the military. At the end of the day, all that counts is the signature on the enlistment; the man who signs on the basis of those promises is a fool. And if he is a fool who relies upon a recruiter's promise, that anyone who knew anything could have told him was worthless, what does that make him, who relies upon the honor of Congress in that same regard?

-- posted by Clayton 6/02/2003 09:37:00 PM | comments (0)

Sgt. Stryker on growing up as a Navy brat. His recollections, shall we say, do not match mine. That my father would be missing for months at a stretch on a WestPac cruise was simply part of the natural order of things, and my mother didn't spend those months getting schnockered with her friends while neglecting her children.

-- posted by Clayton 6/02/2003 08:39:00 PM | comments (0)




For the more forensically inclined