Month: May 2009

Double Jeopardy?

David Freddoso argues against the Shepard Act:

Another problem with this particular bill is that it explicitly encourages federal prosecutors to try defendants twice for the same crime, even if the first trial results in acquittal.

People usually think of hate-crimes bills as sentence-enhancers – and indeed, many state hate-crime laws take that format. The Shepard bill does not. In addition to providing financial help for local prosecutors for hate crimes, it creates a new federal charge, with a ten-year prison sentence, that can be used against those who commit “crimes of violence” with firearms or explosives, or which cause serious bodily harm, motivated by hatred toward certain groups.

Who Won The Cold War?

Christopher Caldwell reviews James Mann's The Rebellion of Ronald Reagan:

Mann is a dogged seeker after evidence and a judicious sifter of it. His verdict is convincing. Some have painted Reagan as brilliantly bankrupting the Soviets through his “Star Wars” missile-defense proposals, which ignited an arms race Gorbachev could not compete in. Mann doesn’t buy it. The lead role belonged to Gorbachev. While Star Wars heightened the economic contradictions of Communism, Mann writes, it “did not persuade Gorbachev to sit passively by in 1989 while the Berlin Wall was torn down.” Ending the cold war was a matter neither of just being tough against the Soviets nor of just being trusting. It required a subtle mix of both approaches, and Reagan found that mix.

In Praise Of Souter

SOUTERHOMEJoeRaedle:Getty

I have to say I find the accounts of his personal life – the source of some ridicule and amusement in the past – to be moving. Here is an antidote to our current cult of contemporaneity, fame, celebrity and ideology. Souter's judicial philosophy – a modest, gradual, stare decisis conservatism – stands out as an emblem of a Yankee conservatism we need more, not less, of:

Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.

The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis–let the decision stand. Upholding precedent staunches the forces of change–and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.

But what I really admire is Souter's love of normal life, of the joys of quotidian living, of non-celebrity, or history, and quiet community.

This is a sane man, only viewed as an eccentric through the prism of our insane culture:

“A lot of people would live up here and hate it,” said Wilbur A. Glahn, a lawyer who has known Justice Souter since 1975 and still hikes with him in the summer. “But David has got a real love for the people and the land and the simple things here. I’m not sure I know a lot of people who are more connected to a place than he is. It’s a very strong, kind of visceral feeling that he has.”

I think it was Larkin who said that travel narrows the mind. It was a mischievously provocative statement, but at its core is something true. The world is a mystery; one place is amazement enough. To live well and deeply in one place, to commit to it, to protect and cherish and understand it: this is a great and difficult and rewarding thing. And David Souter is a good man.

(Photo: David Souter's home in Weare, New Hampshire, by Joe Raedle/Getty.)

Hewitt Award Nominee

"Which should tell all of you about the abuse of power inherent in this administration. They now control General Motors, they basically control Chrysler, they control Citibank, they control AIG, and they are prepared to punish people. I think that's very dangerous, to have a president who thinks he should get up in the morning and punish Americans. You know, appease foreigners, bow to the Saudi king, embrace the Venezuelan dictator, and punish Americans? I think that's a very dangerous attitude," – Newt Gingrich, ranting on.

Rape And “Enhanced Interrogation”

One way to look at how the Bush administration redefined torture out of existence, so that it could, er, torture human beings, is to compare their criteria for "enhanced interrogation" with those for rape. Raping someone need not leave any long-term physical scars; it certainly doesn't permanently impair any bodily organ; it has no uniquely graphic dimensions – the comic book pulling-fingernail scenarios the know-nothings in the Bush administration viewed as torture; and although it's cruel, it's hardly unusual. It happens all the time in regular prisons, although usually by other inmates as opposed to guards. It barely differs from the sexual abuse, forced nudity and psychological warfare inflicted on prisoners by Bush-Cheney in explicit terms.

Recall that smearing fake sexual blood on the faces of victims was regarded as brilliant interrogation by the Bushies in Gitmo – and its psychological effects were supposed to be heightened by Muslim sexual sensibilities. And male rape would be particularly effective in destroying male Muslim self-worth and psychological integrity. Rape almost perfectly fits, in other words, every criterion the Bush administration used to define "enhanced interrogation."

So ask yourself: if Abu Zubaydah had been raped 83 times, would we be talking about no legal consequences for his rapist – or the people who monitored and authorized the rape?

Freedom To Discriminate

Robin Wilson wants religious liberty laws to trump non-discrimination laws:

Wedding advisors, photographers, bakers, caterers and other service providers who prefer to step aside from same-sex ceremonies for religious reasons also need explicit protection.

Some have argued that gay-marriage laws do not need such guarantees because they don't require religious objectors to do any particular thing. But new laws are interpreted in light of existing statutes, and Vermont and Connecticut — as well as all six states still considering same-sex marriage — have laws on the books prohibiting discrimination on the basis of sexual orientation.

Because of those laws, many people could have to choose between conscience and livelihood.

But how far do you go? Should a Catholic caterer, for example, be able to refuse to provide food for a second marriage? My own view is: yes. But then I'm a libertarian in many ways. I see protecting religious freedom in the civil sphere as a core principle. And by exposing such religious prejudice so baldly, and allowing the market to disadvantage the bigoted, we may even help jump-start the conversations that will eventually persuade people that they're wrong.