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Clayton Cramer's BLOG |
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Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
 Never forget! I'm running for Idaho state senate I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Saturday, March 29, 2003
Injuries, Illness, Etc. I haven't been terribly productive this last week or two. A week ago Tuesday I turned too rapidly while getting dressed, and broke my middle toe on my right foot. Two days later, I walked into the garage with my hands full of recyclables, and in the darkness, managed to find my son's skateboard. Guess which toe impacted? Yup. The last two days I have been coming down a sinus infection. I feel just awful! Yeah, It's Not About Anti-Semitism This news story from Reuters has a truly memorable photograph of a Pakistani war protester's headband: "Kill Jews." Another useful pointer from Right-Thinking. Why Haven't I Seen This On CNN? From the Sydney Morning Herald: Near Basra, Iraq: British military interrogators claim captured Iraqi soldiers have told them that al-Qaeda terrorists are fighting on the side of Saddam Hussein's forces against allied troops near Basra.Thanks to Right-Thinking for the pointer. Originalism and Lawrence v. Texas I've had some interesting conversations about this little essay of mine; you can see my additions at the end. One Nation, "Under God": Revised I've updated my little item about the phrase "Under God" in the Pledge of Allegiance. Certain bloggers was reluctant to link to it because it was too harsh. I've removed anything that seemed critical of those who argue otherwise, and added some material about the religious belief clauses of the Revolutionary Pennsylvania and Maryland Constitutions. Why do I sound so irritable about things like this? Because this isn't rocket science. Many of the people who try to argue that "under God" in the Pledge is unconstitutional should know better, and I find it hard to believe that this is a genuine ignorance. But then again, there's a ot of ignorance out there, even among well-educated people. Perhaps I need to work on the assumption that ignorance runs the universe, and I won' t be so irritable. Thursday, March 27, 2003
Executing Prisoners of War: Wrong Morally, Legally, and Pragmatically News accounts indicate that our government has information indicating that the Iraqis are executing servicemen who have surrendered. This is not only a violation of the laws of land warfare (see here for the conventions and treaties upon which this is based), and morally indefensible (except, I'm sure, by antiwar protesters), but also pragmatically foolish. Now that coalition forces have reason to believe that Iraqis are executing soldiers who have surrendered, the incentive to surrender, even to overwhelming forces, diminishes. If you think it is likely that you are going to be murdered even if you surrender, there's little reason to give up. Contrary to what is conventional wisdom among intellectuals, morality is pragmatically good. Lawrence v. Texas: Why Originalism Should Matter--But Doesn't The Supreme Court heard oral arguments on this yesterday. There are three separate questions here: 1. Should states have laws prohibiting sodomy? This is a question of what is good public policy--which isn't the same thing as constitutional vs. unconstitutional. (Keep in mind that most of those statutes prohibit not just anal sex under the definition of "sodomy," but also oral sex.) I must confess that it's hard to justify such a position, except that anal intercourse has been a pretty effective method of transmitting AIDS over the last 20 years. If gun regulations can be justified by reducing the number of deaths, then sodomy laws can be similarly justified. If a relatively rare event like murder or suicide, which involves a fraction of 1% of all guns in the U.S., can justify gun control laws, then a relatively rare event like AIDS deaths, can justify sodomy laws. I just want the liberals to be consistent about this. 2. Do the states have the authority to regulate non-marital sexual relationship--a Constitutional question? This was the decision of the Court in Bowers v. Hardwick (1986). I can't see any argument that has been raised in Lawrence that effectively refutes it--unless you completely abandon the notion of originalism in deciding what is Constitutional. (More about that later.) At the time that the Bill of Rights was ratified, and when the Fourteenth Amendment was ratified, every American state prohibited sodomy. Those laws, while apparently aimed at homosexuals, were not specific to them. I've read quite a number of the colonial statute books, and bans on sodomy were present in everyone that I have checked--usually death sentences. (To add to the confusion, in Maryland and Virginia, "buggery" seems to have included sodomy, while in New England, buggery was explicitly defined as sex with animals, and was prohibited separately.) This interchange between Justice Scalia and the lawyer representing the homosexual couple fighting the law shows the sort of manipulation going on here: Chief Justice William Rehnquist immediately challenges Smith on the claim that there is some longstanding privacy right to commit gay sodomy. This was the basis of the Bowers decision—a decision in which Rehnquist was in the majority. "The right has to have been recognized for a long time," he argues. Smith responds that laws banning homosexual conduct didn't even exist until the 19th century. Scalia argues that sodomy laws have been on the books from the beginning of the republic, they just included heterosexual and married couples.Both of them seem to be partly wrong. Here's a Maryland statute from 1638/9 that doesn't seem to discriminate against homosexuals; ditto for an 1809 Maryland statute. But here's the Connecticut statute of 1650--it clearly discriminates against homosexuals. I've read several others that clearly discriminate in their prohibition of sodomy. Smith's argument--that the early laws didn't discriminate against homosexuals--might be a good one against laws that specifically prohibit homosexual sodomy (such as Texas has), but it wouldn't do homosexuals any good in states like Idaho, which don't discriminate, banning sodomy regardless of the sex of the parties, or their species. Why is that qualifier "non-marital" before "sexual relationships" above? Because the Supreme Court, in Griswold v. Connecticut (1965) struck down a contraceptive ban law as violating the right to privacy of the marriage. It is conceivable--even likely--that an appeal to originalism could have produced the same conclusion without the need for embarrassingly stupid arguments, as advanced in both the majority and concurring opinions. See this case for an example of an originalist argument along similar lines. 3. This brings us to the equal protection claim--another Constitutional question. The argument is that the 14th Amendment prohibits the states from denying equal protection of the laws. But what does the language of the 14th Amendment say? No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.What does "equal protection of the laws" mean? If you had asked the authors of 14th Amendment--indeed, almost anyone on either side of the 14th Amendment debate--whether this would strike down laws against homosexual sex, they would have looked at you as if you were quite mad. "This amendment is to protect the freedmen from the abuses of the former Confederate states. What madman would allow perverts to use it to strike down a state's laws that protect public decency?" This brings us to the question of originalism. I engaged in a rather lengthy debate with a reader of the Volokh Conspiracy last week about this question of originalism. The case for originalism is simply that it acts as a tether on the understandable desire of judges to be legislators. There are a number of theories of constitutional interpretation, but the essential dispute in a case like this is whether or not judges should strike down a state law because they consider it irrational. Unless the distinctions that a state law draws involve "suspect classifications" (race, national origin, religion), the courts usually accept a legislature's claim that a law exists to protect public health and safety. From the cases that I have read, the courts show so much deference to legislative claims of public health and safety with respect to gun control laws as to be ludicrous. It seems to be the magic password that gives the legislature unlimited authority to pass laws, regardless of how little evidence they have to back up their claims, as in this example, from California Penal Code 12275.5: The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.Prettty clearly, the legal profession's sympathy for homosexuals causes it to regard sodomy laws as irrational. Slowing the spread of AIDS, pretty obviously, provides at least a similar justification for prohibiting promiscuity, and for prohibiting anal sex--even prohibiting it among homosexuals alone. The judiciary, however, is not a superlegislature. If a legislature passes a law that violates the Constitution, the courts are supposed to strike it down. As a general rule, the courts show considerable deference to legislative bodies, unless the legislature is clearly violating the Constitution. This is entirely appropriate. In our system of government, the people and their representatives are supposed to be in control. Significantly, liberals believe in this deferential attitude with respect to gun control, economic regulation, health and safety regulations, and a host of other activities. They just don't believe in it with respect to sodomy laws--where the legislatures are now presumed to be incompetent to pass sensible laws. It appears that liberals (including nearly all law professors, it seems) have decided that laws that regulate non-marital sexual behavior are a "suspect classification," and require the same extraordinary justifications required for laws that impinge on race, religion, or national origin. This is where originalism acts as a tether, tying judges back down to the Constitution, instead of their own whims. The act of writing or amending a Constitution is a pretty momentous event. It requires supermajorities to ratify or amend, and as a result, these actions of the people in making our fundamental laws represent more than just a passing whim. If there are many points of view that can be accurately shown to have been present in 1789, or 1868, there is a perfectly legitimate argument that there is no clear-cut and overriding originalist argument to illuminate the decision of a judge. But with respect to sodomy laws, the evidence is very clear. Thus, the enthusiasm for judges to act not only as judicial reviewers, but as superlegislators. This is a dangerous precedent, and one likely to provoke even more conflict between the people and the judges. UPDATE: I've had some interesting conversations with people who disagree with me about this, including one lawyer who filed an amicus brief in this case. Some of the points made, and my deft and clever refutations: 1. "The same colonial statutes sometimes prohibited witchcraft, and laws against homosexuality are just as irrational." From an originalism standpoint, if any states had laws against witchcraft today, yes, the Court couldn't arbitrarily strike them down. But have you noticed that there is a certain lack of witchcraft laws? I believe that New Jersey was the last American state to hold a witchcraft trial, about 1815 or so. (The verdict was innocent, if I recall correctly.) 2. "Originalism would have us still subject to anti-miscegenation laws." I'm not so sure about this. The aptly named Loving v. Virginia (1967) struck down Virginia's ban on interracial marriage because it violated the equal protection clause of the 14th Amendment. The State of Virginia argued that an appeal to originalism would show that the 14th Amendment was not intended to strike down miscegenation statutes. The decision by Justice Earl Warren decided that the evidence of original intent was not conclusively on Virginia's side: The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U.S. 483, 489 (1954). See also Strauder [388 U.S. 1, 10] v. West Virginia, 100 U.S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).3. "Because Texas doesn't ban bestiality, they can't claim that their sodomy law reflects an original intent morality argument, and it's just malicious dislike of homosexuals." a. One could equally argue that the Supreme Court should impose bestiality laws on Texas in the interests of consistency. For those of us who live in Idaho, of course, where the sodomy statute prohibits not only homosexual, but also heterosexual sodomy, as well as bestiality, this argument won't fly. I would make another point here: one can make a "public health" argument concerning AIDS to justify bans on homosexual sex, and be in no worse logical shape than many of the gun control laws (as I alluded to at the top of this posting). I am unaware of a significant public health problem involving livestock and AIDS. I don't particularly like this argument, but it is at least plausible. I am a little shocked that Texas lacks a bestiality statute; perhaps they should have one, so that intellectuals like Princeton professor Peter Singer can be an expert witness that such laws are irrational. b. I don't see any 14th Amendment provision that prohibits the states from passing laws that discriminate against homosexuals. If there is some good reason for a law, and that law does not involve the classifications listed in the 14th Amendment, then the fact that the law impacts one group but not another is not a legitimate basis for claiming that such a law violates equal protection. Every state has a law against drunk driving, and such laws certainly discriminate against alcoholics. Every state has a law against child molestation, and such laws certainly discriminate against pedophiles. So? (I expect to see challenges to the child molestation laws within my lifetime, as a violation of equal protection.) The assumption that laws that pursue homosexuals are malicious assumes that there is no legitimate basis for such a view, and no good public policy argument for discouraging homosexuality. (I used to think this--that there was no legitimate basis for such a view--but living in the San Francisco Bay Area, and talking to homosexual activists, has persuaded me otherwise.) 4. "The Connecticut statute to which you allude only prohibits male homosexual sex." Very true, being derived from the Levitical code by way of the English law of Henry VIII on this subject. But some of the other laws of the period don't discriminate based on the sex of the participants, and the Texas law prohibits both females and males engaging in homosexual sodomy (which includes oral sex). Labels: homosexuality Wednesday, March 26, 2003
"Day of Prayer and Fasting" Eugene Volokh mentions a House resolution calling for a national day of prayer and fasting. Volokh correctly identifies that there is no constitutional problem with this. (I'm not sure why he didn't link to this, which demonstrates the history of this sort of thing.) He does, however, think: Moreover, a day of prayer and fasting? Yes, I know that this is part of the historical tradition to which the House is appealing, but unless I'm mistaken very few Americans today, even the most devout, actually see fasting as the proper response to national crisis. Many people do fast on certain days (such as Yom Kippur, Lent, or Ramadan) dictated by religious tradition; but I think very few fast outside these traditions, even in times that call for prayer and reflection. I doubt that President Bush, or the majority of the House of Representatives, would actually fast (though they may well pray) in response to this resolution, even if they vote for it.Well, fasting and me have never gotten along very well, largely because of some stomach problems (scar tissue from a now healed-over duodenal ulcer), but I think this just shows that Eugene doesn't hang out with lots of average Americans. Fasting as spiritual exercise and expression of repentence are a part of the evangelical Christian expression in America, and not just at the conservative or fundamentalist end of the spectrum. Paratroopers Making a Night Drop I made a point of mentioning a few days ago, when I was still part of the Volokh Conspiracy, that the average soldier's risk in this war is only one or two orders of magnitude greater than an individual undergoing general anesthetic. (Unfortunately, I can't seem to get the Volokh Conspiracy archives to come up, so I can't link to what I wrote.) That's an average, of course, with servicemen and women in support roles generally at low risk. The recent example of the maintenance unit that took a wrong turn and was taken captive reminds us that even the "low-risk" units can become quite dangerous. There are high-risk jobs as well--and CNN tonight showed some film of paratroopers making a night drop over northern Iraq. This is a somewhat dangerous activity in daytime--but at night? CNN's Aaron Brown was phone interviewing a noncom who had done that drop, and was now on the ground. You could see by the end of the interview that Brown's professional reserve was evaporating away at the courage of these young men, stepping out into pitch darkness, not knowing what might happen to them on the way down, or when they got there. Wow! Tuesday, March 25, 2003
Blair's Risk Taking Seems to Have Paid Off The Guardian reports that a majority of Britons now support military action against Iraq. Blair's personal popularity numbers are also going up. Even Labour supporters are in support: "Among Labour supporters, backing for military action reaches 58% approval and 29% opposition." Do you suppose seeing Iraqis welcome coalition forces might be a part of the change in attitude? Marine Rage At Apparent Execution of POWs This article discusses the rage and desire for revenge expressed by Marines over the apparent execution of POWs by the Iraqis. The rage is understandable. That's why the Iraqis put these pictures of POWs with bullet holes in their foreheads on television--to enrage our forces so that they are less willing to operate in a humane manner towards Iraqi soldiers and civilians. I hope that our officers are reminding our forces not only of their legal obligations to POWs, but also that the goal of these horrifying images is to turn our fighting men into the sort of monsters that commit war crimes. This would be both morally wrong, and destructive of the positive image of coalition forces as liberators of Iraq. Monday, March 24, 2003
I Wouldn't Have Put These Two Concepts In the Same Sentence.... But then again, I'm not a journalist: Baghdad's many dogs stopped barking during the explosions but the late-night Islamic call for prayer continued to pour from Baghdad's minarets.It might lead to unfortunate comparisons, and that's never good. The Benefits Of Fighting War By Moral Means This article by a Canadian journalist embedded with the U.S. 3rd Armored Reconnaissance Battalion makes me proud to be an American: For many kilometres, civilians and soldiers were lined up, waving and blowing kisses at the passing vehicles holding U.S. Marines. Many begged for food. Each U.S. vehicle had been given two boxes of ready-to-eat rations suitable for Muslims. Some people came back for seconds, hiding the food they had already collected.Some day, we are going to look back on this war the same way that we look back now on the liberation of the concentration camps at the end of World War II. Unspeakable crimes took place; as a nation, we delayed far too long in recognizing the evil that Hitler was performing; we have some responsibility for delaying too long. But unlike the liberals who continued to make excuses for why we should have done nothing, we took on our responsibilities as a nation--along with Britain, Australia, Poland, and the Czech Republic--and liberated Iraq from a monster. We Will Remember Our Friends Poland's commando units have participated in combat operations in the current war. Hmmm: Is Saddam Hussein Live? Or Memorex? This MSNBC report about a recent televised speech by Hussein points out that he may have recorded this speech some days ago: And when he cited several units and commanders, saluting them “for their heroic feats in the battlefield,” he named the commander of the 11th Iraqi Brigade in Basra, who surrendered along with many of his troops in the early hours of the war. That prompted officials at the allied Central Command in Qatar to conclude that the tape was likely recorded before the beginning of the hostilities.Well, that seems like a pretty good assumption, doesn't it? The Costs of Fighting War By Moral Means We are grieving for our dead today; the giddy first few days of nearly bloodless (for coalition forces) battle are at an end. To some extent, this is one of the costs of fighting war by moral means. In Gulf War I, we used armored bulldozers to bury alive vast numbers of Iraqi soldiers, rather than risk American lives cleaning out these trenches. This time, we are killing Iraqis only when they clearly refuse to surrender. This is morally superior, and will pay a dividend, a year or two hence, in respect and gratitude from those soldiers, and their families, who survive the war. But right now, we are paying for this. To those families that are grieving the loss of their loved ones, it's hard to know that your son, husband, father, won't be coming home because we are refusing to engage in dehumanizing methods to win this war. Remember, in your grief, that multiple Iraqi families, whose sons, husbands, fathers, didn't want to be there, will be coming home because we refused this time to use live burial as a technique of warfare. For all those liberals who are whining about the war: this must be the least destructive war for civilians fought in at least a century. I have seen Iraq claim more than 200 wounded civilians from the bombing campaign in Baghdad. What I haven't seen them claim is any large number of dead civilians. I am sure that there if there were such, the Iraqis would be displaying their bodies--as they did in Gulf War I. We are raising the moral standards for warfare with the use of precision guided munitions. I wish that the antiwar crowd would at least give partial credit to Bush for this. Sunday, March 23, 2003
Awesome! This Guy Learned From Being a Human Shield! Instapundit had this pointer to a story in the Telegraph by one of the "human shields" who went to Iraq--and is now back. The most interesting part of the story (to me): I became increasingly concerned about the way the Iraqi regime was restricting the movement of the shields, so a few days later I left Baghdad for Jordan by taxi with five others. Once over the border we felt comfortable enough to ask our driver what he felt about the regime and the threat of an aerial bombardment.Unfortunately, not every peace protester has the chance to go and be a human shield. It makes you wonder what the results might be. |
