Balkinization  

Saturday, February 28, 2004

JB

President Purges Bioethics Council of Unbelievers

In a further attempt to shore up his religious conservative base, President Bush fired two members of his bioethics advisory council and replaced them with three new members who were more likely to agree with the policy positions of the President and the council's chairman, Leon Kass. The Washington Post has the story:

Asked why [Elizabeth] Blackburn [a biologist] and [William] May [an ethicist] had been let go, White House spokeswoman Erin Healy said the two members' terms had expired in January, and they were on "holdover status." Asked whether, in fact, all the council members' terms had formally expired in January, she said they had.

Pressed on why Blackburn and May had been singled out for dismissal, she said: "We've decided to go ahead and appoint other individuals with different expertise and experience." She would not elaborate further.
. . . .

Michael Gazzaniga, a Dartmouth neuroscientist who sits on the council, said he was "upset" by Blackburn's ejection.

"She was one of the basic scientists who understood the biology of many of the issues we're talking about," Gazzaniga said. "It will be a loss for sure."


The council studies important issues ranging from human cloning to stem cell research and the use of biotechnology to enhance human beings. In the past several years the council has found it difficult to reach concensus that matches the Administration's preferred positions. Apparently that will no longer be a problem.

I think this undermines any credibility that the President's council on bioethics ever enjoyed.

Incidentally, the President's latest action comes on the heels of a recent report by the Union of Concerned Scientists finding that the Administration has regularly manipulated, distorted, and blocked scientific research to further its political aims and that "the scope and scale of the manipulation, suppression and misrepresentation of science by the Bush administration is unprecedented."

The Bush Administration's attitude toward science shows that it treats expertise not as a source of information for good governance but only as an adjunct to securing political advantage and pleasing its constituents. Its treatment of science is of a piece with how it used intelligence in the run up to the Iraq War: listen only to what you want to listen to, and discard or distort the rest. If you don't find information you like from objective sources, find someone with credentials (or without them) who will provide the information you want to hear.

Using propaganda to convince others that your policies are correct is one thing. But listening to your own propaganda to make decisions is a poor strategy for successful government.


JB

A Lot More Troubling Than Jayson Blair

is the story of how the New York Times, following shoddy investigative methods, repeatedly asserted the existence of weapons of mass destruction in Iraq that turned out not to be there. Reports by the nation's leading newspaper and one of the country's primary shapers of public opinion greatly strengthened the false impression that Iraq posed an imminent threat to the United States, and that a preemptive war was fully justified.

Fabricating quotes is bad enough. Fabricating a causus belli is much much worse.

Nobody died as a result of Jayson Blair's misdeeds. But hundreds of American soldiers have been killed and thousands more wounded because of a war of choice that was sold as a war of necessity.

I've read and enjoyed-- and trusted-- the New York Times for many years. But the Times needs to take a long, hard look at itself for this one.



Friday, February 27, 2004

JB

FMA DOA

Josh Chafetz has the details of the head count in the Senate.

Even so, the real question is whether support for the Federal Marriage Amendment (FMA) helps or hurts Bush for November. I believe it hurts him.

Candidates who face primary opposition have to appease their ideological base in the primaries, and then move to the center in the summer for the general election. This always carries with it the risk that because of the positions they have to take in the primaries the public will think them too far out of the mainstream, or inconsistent, or both. Incumbent presidents who don't face substantial opposition have the luxury of staying in the center throughout the year, while their opponents must zig zag.

That is not what has happened this year. Following David Kay's revelations that there weren't any weapons of mass destruction in Iraq, Bush's poll numbers began to decline. Some Americans who once supported him no longer trusted him. The economy-- and new employment-- did not pick up as quickly as the President hoped it would. With a weak economy, and with growing distrust of the President over the WMD controversy, Bush found himself having to win over his base, even though he faced no opposition. The Mayor of San Francisco's decision to grant licenses to same-sex couples forced his hand. If he wanted to remain the leader of the religious and social conservative wing of his party, he had to exercise leadership and come out in favor of the FMA. In doing so, however, he risked being perceived of as intolerant. And he gave an opening to the Democrats to stake out a position which was much closer to the center of developing public opinion-- that states should decide for themselves what rules they wanted concerning marriage, and that civil unions (as opposed to same-sex marriages) were just fine if some states wanted them. No one could have predicted a year ago that this would become a moderate position on same-sex marriage, but events have outpaced almost everyone's calculations.

If you watch closely, you will note that Kerry and Edwards are trying to come as close to the emerging centrist position on same sex marriage as they can without angering the party faithful. Bush, however, will find it very hard to move much closer to the developing center, because the social and religious conservatives that he needs to court are adamant. That, of course, is the disadvantage that comes when an important constituency of your party cares more about ideology than about winning.

Bush's support for the FMA is not going to be the wedge issue that divides and discomfits his opponents, as flag burning, ACLU membership and Willie Horton were for his father in the disgraceful presidential campaign of 1988. Instead, because the center is moving so rapidly on this issue, the FMA is likely to divide and discomfit his own party.

What will the President do next? He can't run on Iraq or on the economy. The proposed mission to Mars went nowhere, his immigration proposal angered important elements of his conservative base, and his support for the FMA appears to be backfiring. What will he pull out next from his bag of tricks?

Whatever it is, I am quite sure it will be quite unpleasant. One thing we know about the Bush family and their advisors: They don't mind playing rough or playing dirty, as long as somebody else takes the heat and receives the blame.



Thursday, February 26, 2004

JB

Bush: Democrats Lack Agenda

As the Washington Post reports, the President has complained that, unlike him, Democrats do not have a clear plan:

"The man who sits in the Oval Office will set the course on the war on terror and the direction of our economy," Bush said in downtown hotel. "The security and prosperity of America are at stake."

In contrast with those agenda-less Democrats, Bush has been very, very active. In three short years, he has run the economy into the ground, eliminated the existing federal surplus, busted the federal budget, taken the United States into war against a country that lacked the weapons of mass destruction he claimed were present, given enormous tax breaks to his wealthiest contributors, awarded the Vice President's friends large contracts in Iraq without competitive bidding (resulting in substantial war profiteering), stonewalled inquiries into the circumstances surrounding the 9/11 attacks, detained American citizens in violation of the protections of the Bill of Rights, violated international law and the Geneva Convention, undermined civil liberties and personal privacy, stocked the executive and judicial branches with right wing ideologues, proposed an amending the Constitution to enshrine intolerance and denials of equal rights, and presided over the loss of more than 2.3 million jobs.

A reformer with results, indeed!


JB

Locke v. Davey-- Like a Garden Snake

Yesterday the Supreme Court handed down an important Free Exercise opinion in Locke v. Davey, holding that Washington state could give Promise Scholarships for individuals seeking college education except for those seeking degrees in theology. The Court held, 7-2, in an opinion by Chief Justice Rehnquist, that this did not violate the Free Exercise Clause. Justices Scalia and Thomas dissented.

The majority opinion is a characteristically Rehnquist opinion; it is like a garden snake-- short and slippery. Rehnquist emphasizes that Washington has not imposed civil or criminal penalties on people studying for the ministry but simply refused to subsidize training for one particular profession or calling because of the state of Washington's policy, written into the state's constitution, of not subsidizing the ministry.

What is important about Locke v. Davey is less what the Court decided than what it did not decide. The opinion is written very narrowly to avoid a series of important constitutional questions. For example, by focusing on professional or vocational training for religious positions, Rehnquist dodged the more difficult question of the constitutionality of school voucher programs that include only secular private schools. The latter policy does not make a distinction based on professional training, but rather on the nature of the school that provides elementary and secondary education. Although Locke v. Davey suggests that there might be no Free Exercise problem with such a policy, I think it is still an open question whether secular-school-only voucher programs are constitutional under the Free Exercise Clause.

There was also a free speech issue implicit in the case. You could argue that the Promise Scholarship program violated Davey's free speech rights because scholarships were available for people majoring in every subject but not in theology. In a footnote, Rehnquist distinguishes the Washington statute from cases where the state creates a public forum for all viewpoints by funding or providing access to government, and then unconstitutionally excludes one particular viewpoint. The Promise Scholarship, Rehnquist asserts, is not a forum for speech, but financial assistance for postsecondary education; it is not a policy designed to promote a diversity of views from private speakers. That holding is quite important because it suggests that a free speech attack on secular-school-only voucher programs would fail.

I don't think that Locke stands for the general proposition that whenever the government offers a general benefit but refuses to extend it to religious organizations, this poses no Free Exercise problems as long as there is no criminal or civil penalty against religious observance or religions activity. That is Justice Scalia's take on the meaning of the case. Scalia exaggerates, as he so often does, in order to make a point. Some exclusions of religious organizations from welfare state programs will still violate the Free Exercise Clause. The problem is that Rehnquist does not tell us which ones they are. Surely the government may not deny police and fire protection to churches or to the houses of ministers; and it may not exclude ministers from prescription drug benefit programs generally available for employees. All Rehnquist has done is to say that excluding ministers from a general vocational training subsidy is different. But he has not yet explained how. That may have been necessary to put together a broad majority of the Justices. But it leaves many questions unanswered.


JB

Lincoln and the Thirteenth Amendment

Josh Chafetz gets the Lincoln story a bit wrong:

Anecdote: The Thirteenth Amendment was accidentally sent to the White House after having been passed by the requisite two-thirds majority in both Houses of Congress. President Lincoln, apparently unthinkingly, signed it. The Senate, at the behest of Senator Lyman Trumbull, later passed a resolution pointing out that the President's signature had been unnecessary.

As noted below, Lincoln signed the Thirteenth Amendment not by accident but as a deeply symbolic act: in part to show his strong support of the Amendment, and in part as a symbolic response to James Buchanan's signature of the Corwin Amendment, which was never ratified.


UPDATE: Apparently, Josh is planning to study at Yale. This is very good news for us; we can always use another smart blogger.




Wednesday, February 25, 2004

JB

The FMA: Not The First Proposed Amendment to Exclude

Many opponents of the proposed Federal Marriage Amendment claim it is the first time that the Constitution would be amended to exclude a group of people. Well, that's technically correct: If *ratified*, the FMA would be the first amendment actually *adopted* that would do that. But it would not be the first such amendment proposed, and more importantly, it would not even be the first such amendment that passed Congress by a two thirds vote of both houses and was submitted to the states. That honor would go to the proposed Thirteenth Amendment of 1861.

Instead of arguing that what Bush has done is unprecedented, I think it's much more important to remember that this *has* happened before, and that the previous attempt is now universally condemned.

The proposed Thirteenth Amendment passed the House on February 28, 1861, and the Senate on March 2nd, 1861. The proposed amendment, sometimes called the Corwin Amendment, because it was proposed by Representative Thomas Corwin of Ohio, was a desperate measure designed to keep the Union from falling apart. By the time the amendment was submitted to the states, seven states had already seceded and four were soon to follow. The ensuing Civil War made it irrelevant, but it was ratified by several states and because it has no time limit for ratification, it is still technically before the country:

ARTICLE THIRTEEN


No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.


As you can see, the point of the Corwin Amendment was to assure Southern states that the Constitution would never be amended to abolish slavery. (Ironically, it says nothing about the issue of slavery in the territories, which was one of the precipitating causes of secession). There is an interesting question whether amendments that prohibit future amendments can work. After all, one can simply amend them to remove the prohibition. The irony, of course, is that the Thirteenth Amendment that was ratified four years later in December 1865 did abolish slavery.

President James Buchanan, who had promoted the idea of an "explanatory" constitutional amendment to resolve the crisis over secession, signed the Corwin Amendment after the Senate passed it. This was technically unnecessary, because Article V of the Constitution does not require the President's consent to amend the Constitution. However, when what is now the Thirteenth Amendment was passed by Congress in February 1865, President Lincoln signed it in a symbolic attempt to negate Buchanan's action.

It is tempting to draw parallels between James Buchanan, who promoted the Corwin Amendment that would forever exclude blacks from full citizenship, and President Bush, who is now promoting an amendment that would exclude gays from full citizenship. Buchanan after all, was one of our worst presidents. But it's important to remember that in 1861, many people from both parties supported the Corwin amendment while holding their noses, including Abraham Lincoln himself, who makes passing reference to it in his First Inaugural Address:

I understand a proposed amendment to the Constitution--which amendment, however, I have not seen--has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Incidentally, the Corwin Amendment was not the only attempt to broker a deal: An earlier proposal in 1860, the so called "Crittenden Compromise," named after Senator Crittenden of Kentucky, would have reinstated features of the Missouri Compromise held unconstitutional in Dred Scott v. Sanford, and would also have prevented Congress from abolishing slavery in the District of Columbia and from regulating interstate transportation of slaves. This compromise failed to pass the House and the Senate.

President Bush should be justly criticized for attempting to amend the Constitution to deny one group of people full and equal rights. But he is not the first President to do so, and we should draw a lesson from the previous example of the unratified Thirteenth Amendment. What he is doing is not unprecedented, and we should resolve not to let it happen again in our own time.



Tuesday, February 24, 2004

JB

Yo Andy, What Took You So Long?

Andrew Sullivan finally wakes up and smells the intolerance. Wait, where's that odor coming from? Oh my, it's coming from the right wing of the Republican Party and its leader, George W. Bush!

WAR IS DECLARED: The president launched a war today against the civil rights of gay citizens and their families. And just as importantly, he launched a war to defile the most sacred document in the land. Rather than allow the contentious and difficult issue of equal marriage rights to be fought over in the states, rather than let politics and the law take their course, rather than keep the Constitution out of the culture wars, this president wants to drag the very founding document into his re-election campaign. He is proposing to remove civil rights from one group of American citizens - and do so in the Constitution itself. The message could not be plainer: these citizens do not fully belong in America. Their relationships must be stigmatized in the very Constitution itself. The document that should be uniting the country will now be used to divide it, to single out a group of people for discrimination itself, and to do so for narrow electoral purposes. Not since the horrifying legacy of Constitutional racial discrimination in this country has such a goal been even thought of, let alone pursued. Those of us who supported this president in 2000, who have backed him whole-heartedly during the war, who have endured scorn from our peers as a result, who trusted that this president was indeed a uniter rather than a divider, now know the truth.

NO MORE PROFOUND AN ATTACK: This president wants our families denied civil protection and civil acknowledgment. He wants us stigmatized not just by a law, not just by his inability even to call us by name, not by his minions on the religious right. He wants us stigmatized in the very founding document of America. There can be no more profound attack on a minority in the United States - or on the promise of freedom that America represents. That very tactic is so shocking in its prejudice, so clear in its intent, so extreme in its implications that it leaves people of good will little lee-way. This president has now made the Republican party an emblem of exclusion and division and intolerance. Gay people will now regard it as their enemy for generations - and rightly so. I knew this was coming, but the way in which it has been delivered and the actual fact of its occurrence is so deeply depressing it is still hard to absorb. But the result is clear, at least for those who care about the Constitution and care about civil rights. We must oppose this extremism with everything we can muster. We must appeal to the fair-minded center of the country that balks at the hatred and fear that much of the religious right feeds on. We must prevent this graffiti from being written on a document every person in this country should be able to regard as their own. This struggle is hard but it is also easy. The president has made it easy. He's a simple man and he divides the world into friends and foes. He has now made a whole group of Americans - and their families and their friends - his enemy. We have no alternative but to defend ourselves and our families from this attack. And we will.


What I want to know is, why is Sullivan surprised? *Now* he gets that the president is not a uniter but a petty tyrant only interested in his own political survival? *Now* he gets that this guy is a shill for the worst sort of politics? *Now* he figures out that the motto of the Bush Administration is: Dissemble as long as possible, but when the chips are down, never piss off the right wing base?

Gee Andy, you *really* must have wanted to invade Iraq to support the guy for this long. Well, your favorite warmongerer just brought the war home to you. Hope you're happy now.

* * * * *

Note that, as you will see in the posts below, I actually don't think that its as bad as Sullivan thinks. I think that Bush is in an untenable position; he's now trying to avoid saying that civil unions should be outlawed as well, contrary to what the hard right wants. The FMA won't pass, and Bush is going to get squeezed from both sides. When his political strategy fails-- as it ultimately will- all that he will be left with is the reputation as a divisive, intolerant, and opportunistic politician, who demeaned a whole class of American citizens just to stay in power. But all of this will be cold comfort to Sullivan, who simply refused to believe what was always in front of his eyes and now has been tossed in the garbage as expendible by his Great Leader.


JB

Bush Throws In The Towel, Says States May Enact Civil Unions

Here's the text of the President's endorsement of a constitutional amendment to ban same sex marriage.

Note carefully the following passage:

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

My friend Mark Tushnet who teaches at Georgetown University, remarked to me the other day that what is most remarkable about the debate over same sex marriage is that within a few year's time the moderate conservative position has now shifted from opposing all recognition of same sex partnerships to conceding that states may pass civil unions, as long as these are not called marriages.

Bush's statement confirms this. He is attempting to shape the issue in terms of what states may officially term "marriage," as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance.

Because Bush wants to appeal both to his base and to moderate voters, this semantic strategy makes perfect sense. But it is well worth considering what he and other conservatives have given up in the process. The fact that Bush appears to have given up trying to prevent states from passing civil unions laws signals that the fight over same sex marriage has shifted ground decisively in favor of civil rights advocates and against the Christian right. The best that the Christian right can hope for now is a world in which some states have civil unions and others do not.

I suspect that some pundits will declare this to be a major offensive in culture wars. To me it looks like an admission of defeat.


JB

Bush Rolls the Dice on Same Sex Marriage

As expected, President Bush finally endorsed a constitutional amendment banning same sex marriage.

Will the strategy make him seem intolerant or will it allow him to take the initiative and drive public attention to an issue that energizes his base? Only time will tell.

I have predicted in a previous post that a same sex marriage amendment is going nowhere. Assuming that there are two thirds majorities in both houses of Congress (which are both controlled by the Republicans) I'm fairly sure that it will not obtain the required three quarters of the states to ratify.

But actually passing the amendment is not necessarily Bush's goal. Rather, as with so many announcements and policy initiatives in the past few months, he has only one goal on his mind: getting reelected in November.


JB

The Unconstitutional Restoration Act

Last week Alabama's Sen. Richard Shelby (R-AL) and Rep. Robert Aderholt (R-Haleyville) began a full scale assault on the American Constitution. The grossly misnamed "Constitution Restoration Act of 2004" is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

The first feature of the bill prevents courts from passing on questions concerning certain government establishments of religion:

`Sec. 1260. Matters not reviewable

`Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'.


Although Congress has the power to change the Court's appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge "God as the sovereign source of law, liberty or government" are shielded from judicial review, while actions which specifically denounce or reject "God as the sovereign source of law, liberty or government" may be reviewed under the Establishment Clause. (An example of the latter would be erecting a momument to atheism or placing the words "There is no God" on the state's flag). Since both types of acts may violate the Establishment Clause, the jurisdictional bar is based on the content of the government official's viewpoint. This would be akin to Congress denying jurisdiction to review cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining judicial review in cases where government officials punish someone for supporting the war. Such a statute would also be an unconstitutional withdrawal of jurisdiction.

The second feature of the act restricts the ways that federal courts may interpret law:

SEC. 201. INTERPRETATION OF THE CONSTITUTION.

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.


This provision is pretty obviously aimed at the Court's citation of international law in Lawrence v. Texas. It violates the separation of powers because it usurps the judicial power under Article III. Once again, according to Marbury, it is the duty of courts to say what the law is, and although Congress may remove certain elements of their jurisdiction, they may not dictate how judges may interpret law or decide cases, which is a core judicial function.

Quite apart from its unconstitutionality, the act also reflects the xenophobia characteristic of the far right wing of the Republican party.

The third part of the act attempts to remove precedental value from all decisions that define Establishment Clause violations in ways contrary to the act:

SEC. 301. EXTRAJURISDICTIONAL CASES NOT BINDING ON STATES.

Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court.


This provision also violates the separation of powers by attempting to modify how state courts are bound by Supreme Court precedents. This is in violation of the principle announced in Martin v. Hunter's Lessee that state courts are bound by decisions of the U.S. Supreme Court. It is especially problematic because it applies retroactively to decisions made before the Act takes effect.

The fourth part of the Act states that a violation of the Act's provisions constitutes an impeachable offense and withdraws the constitutional protection of life tenure under Article III, section 1, which states that judges "shall hold their offices during good behaviour":

SEC. 302. IMPEACHMENT, CONVICTION, AND REMOVAL OF JUDGES FOR CERTAIN EXTRAJURISDICTIONAL ACTIVITIES.

To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--

(1) an offense for which the judge may be removed upon impeachment and conviction; and

(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.


I express no opinion on whether Congress may statutorily define impeachable offenses before the fact, or whether it may define what conduct constitutes good behavior. However, regardless of how good behavior is defined by statute, judges may not be removed from life tenured positions unless they are impeached and convicted by the Senate under Article II, section 4. Moreover, Congress may not define conduct to be an impeachable offense on the basis of an unconstitutional statute because such a statute is beyond Congress's power to enact. (Note that this does not limit the possible *reasons* why Congress may choose to impeach and convict judges, it limits only the use of an unconstitutional *statute* to define those reasons). Because the other provisions of the statute violate the First Amendment and the separation of powers, this part of the statute is also unconstitutional.

I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.



Monday, February 23, 2004

JB

Run Roy Run!

Please, pretty please. The nation needs you Judge Moore! It needs you as a presidential candidate. Just look at all those terrible people in San Francisco, degrading marriage and stomping on the Divinely ordained order of things. Don't you think it's time someone like yourself said enough is enough? George Bush won't do it. He's too scared of what all those soccer moms in Ohio would say. It's up to you Roy, it's up to you!



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