Recently in Law Category

David Bernstein raises some good questions about how the FLDS case has been handled. But he quotes an op-ed that seems to me to be dead wrong:

You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

Excuse me, but unless these girls were the first wife of the father of their children, they weren't married. Texas allows parents to consent to marriages of their children when they're 16. They don't allow parents to consent to non-marital sex with a dude who's already married to someone else but wants to have a pretend wife in addition. That's not marital sex, since they're not married. Since the men are already married, there's no marriage the parents could have consented to, and that makes it rape. Automatically. The girl can't consent, and the parents can't consent to an illegal marriage. The legal question ends right there. This is child abuse.

Someone might try to argue that the law doesn't track with the right answers to such questions when you're talking about what counts as abuse morally speaking. But that's not the issue here. What matters is whether it's legally abuse, and it's legally rape if the man in question is already married to someone else and thus can't have gotten genuine consent to a legal marriage from the girl's parents.

It's hard to resist commenting on what GatoRat says in the comments:

Several of those old girls already have children. If a fifteen-year-old is pregnant with her third child, were the first two immaculate conceptions?"

It is correct to point out that there were clearly pre-16 cases. It is not correct to confuse immaculate conception with virginal conception. I don't see how the idea of a child being conceived without original sin is relevant at all to this discussion.

I wanted to write up a careful argument about this, but I've got enough things to blog about that take time that I'll just post this now with a question. A couple weeks ago Eugene Volokh pointed out a case where two lawyers' insistence on attorney-client privilege allowed someone to go to prison for 26 years. They knew their client had done it, but someone else was tried, and they couldn't bring the information forward by the ethical standards of their profession. It sounds as if they would have come forward if it had meant saving his life but not in the case of a very long time in prison.

Is this a case where the prevailing ethical norm is just wrong? Is attorney-client privilege isn't worth allowing someone to go to jail for 26 years (as it turned out; it was a life sentence, but they didn't know if their client would even die before the innocent guy who was convicted, so it could have been the rest of his life for all they knew). Perhaps this is just a case where you have a moral obligation to break the ethical rule of the profession and take the consequences of disbarment. A lot of commenters on the post seem to think that, anyway. If so, it's a nice case of a very strong prohibition on something that nonetheless is not absolute. (Even on the view of these lawyers, there was at least one exception, the case of capital punishment. But if there are more exceptions, then I think it's a nice case of a difference of degree making an ethical difference.)

In a recent case, the California Supreme Court affirmed a 1955 law that requires teachers to have proper credentials, even if they're homeschooling their own children. Some conservatives are up in arms. But it's important for conservatives to locate their criticism properly.

As far as I can tell, this was a judicially conservative decision. The law in California is that teaching requires certain qualifications. The only question was whether you can find a right in the Constitution to homeschooling, and they concluded not, which is actually a more judicially conservative position. See Eugene Volokh for more details.

Now I'm open to a judicially conservative argument that this case was wrongly decided, but I've been seeing people upset merely because of its being a bad policy decision. Well, don't complain to the court. Complain to the people who wrote the law to begin with (except they're probably dead), and seek to get the law changed. That's the normal process for this kind of thing, and it's not conservative to expect a court to find new rights in the Constitution that conservatives would prefer to have constitutionally guaranteed. This is a case of conservatives expecting judges to enact their policy preferences, which is the very thing conservatives usually complain about and call judicial activism when they see liberals doing the same thing.

Barack Obama's opposition as an Illinois State Senator to the Born Alive Infant Protection Act has been making the rounds, with a lot of people overstating their case on both sides. Some conservatives are taking this as a sign that Obama thinks infanticide is morally ok, and some liberals are acting as if his approach is what any supporter of keeping abortion legal before viability should say. I'm not sure either is true, but I'm also not sure this reflects well on Obama.

Here is the law. It says that if a baby is born alive, whether by intended delivery or by failed abortion, it is legally a person, a human being, a child, and an individual. It counts as born alive only if it is completely removed from the mother (ignoring an umbilical cord connection, which does not count as a sufficient connection according to this law). Partial-birth abortion is thus not ruled out, because a partial birth is not a complete removal of the fetus. As long as the birth has not fully taken place, this law threatens no actual abortion rights.

Obama's reason for not supporting this ban is not because he thinks it's ok to kill a born fetus. As far as he's said, he does not actually support infanticide (and he didn't vote against the law; he just voted present, although that in itself was part of a strategy devised by Planned Parenthood of Illinois to protect pro-choice politicians from voters seeing how pro-choice they are). For his actual words, see comment 9 here. What he says is that he worries about the logic. Here is what seems to me to be his argument:

1. The Supreme Court has declared laws banning abortion before viability to be unconstitutional.
2. There is no difference between the moral status of a fetus inside its mother before viability and the moral status of a born baby at the same developmental stage.
3. Therefore, banning the killing of a born baby at this stage is morally tantamount to banning abortion at a pre-viability stage. (from 2)
4. Therefore, the law is unconstitutional. (from 1 and 3)

This argument does not amount to supporting infanticide morally. It is merely an argument based on the constitutional issue. According to Supreme Court precedent, this law is unconstitutional, and thus it's pointless to pass it. He gives no moral argument against the ban, just a pragmatic one. So from this speech alone it's impossible to get any clear support for infanticide.

Nevertheless, I think this is a terrible argument. The first premise is clearly true. I would argue that the second is also true. I see no difference in the intrinsic moral status of the fetus merely because it is contained within someone or is separate. However, I don't think 1 and 3 guarantee 4. There's no legal reason why morally inconsistent laws can't occur. You can ban something that's morally equivalent to something else that's unconstitutional to ban, as long as the first thing isn't unconstitutional to ban. But the real problem I have with the argument is his inference from 2 to 3.

The standard pro-choice argument is not that a mother has a right to kill a fetus growing within her. Only the most extreme abortion-choice proponents hold such a view. The standard view is that a woman's right to control her body is morally more important than whatever rights a fetus might have. That argument allows for a fetus to have some sort of moral status such that killing it would be prima facie wrong, even if the bodily rights of the mother outweigh that. What this means is that the standard pro-choice argument does not accord a mother the right to the death of the fetus. If it survives removal, her rights have been satisfied. That means the moral status of the fetus is what kicks in to determine what you should do in such a case, and this law settles that question. It does not threaten the woman's bodily rights, at least not according to the standard justification of abortion rights.

I've been teaching capital punishment for the last week in my ethics class. There are two main arguments for the death penalty, and I see them as relatively independent of each other. Retributivism is the view that the death penalty is the only just punishment for premeditated murder because it is the only punishment that's proportional to the crime. A life was taken, and that is so serious that no other punishment matches up with what the murderer deserves. This sort of argument rarely occurs in public policy arguments, in my experience, even though it's the argument with much stronger philosophical support historically. I think that's probably because our culture has moved away from liking the idea that we deserve anything bad when we do wrong. Most people do accept a kind of retributivist justice when they get robbed of something they think they've earned. They just don't want to extend retributivist arguments against wrongdoing.

So death penalty advocates have often relied on deterrence claims in recent decades. The only problem is that studies aiming to establish whether capital punishment deters any potential murderers from killing have been fully inconclusive. The ones with the strongest conclusions have tended to be the ones with the least credibility. The weaker the conclusion, the fewer problems critics have been able to find. This is so in both directions, and many people familiar with the literature have concluded that we can't know whether capital punishment deters, and that has left philosophers defending the death penalty trying to establish why we should retain capital punishment even if we can't show that it deters. A couple of those arguments are, I think, quite brilliant. One takes a form of Pascalian-style wagering based on the potential rewards if you bet on deterrence and win vs. if you bet on it and lost, compared with what happens if you bet on non-deterrence and ban capital punishment. There are difficulties with these arguments, but I find it fascinating that people would go to such lengths to defend the deterrence value of capital punishment because studies on deterrence are inconclusive, when the historic justification for the death penalty doesn't assume any deterrence at all.

That was the state of play a few years ago. It's pretty much how all the ethics books dealing with the question leave things. It amazed me, therefore, to see that The New York Times highlighted a dozen studies in the last few years that conclude that the death penalty does deter murders, from as many as 3 to 18 murders per execution. This article was published in November. I only heard about it because Joe Carter linked to it. I didn't save a link to it at the time and had to do some careful Google searching just to located it again. I didn't see other reports of it in that searching.

That surprises me, because this is huge if these studies turn out to be well-founded. It changes the whole debate about the second justification for the death penalty, and apparently it's changed the minds of a number of important figures, including Cass Sunstein, a well-left-of-center law professor who had been completely opposed to the death penalty. I haven't seen these studies, and I'm not sure I'm qualified to evaluate them fully even if I did see them, but I do know some people have criticized them, although that tells us very little. Some people will criticize anything that gives a conclusion they don't like. I'm going to be looking out for further developments on this. I don't think those who support the death penalty should abandon retributivism, but if the death penalty does deter that's worth knowing about, because those who aren't retributivists might be basing their whole evaluation of the death penalty on this one question.

Snopes debunks the "E-ZPass used for determining who is speeding" myth.

I've heard this one several times, as far back as a decade ago, but I haven't ever seen someone explain why the police can't use this kind of system to catch speeders. It's nice to see someone presenting the facts, but even this debunking doesn't mention one reason why this would never work. A traffic officer needs to be involved in catching speeders to verify who is driving the vehicle. Otherwise, an owner of a vehicle who happens to have several other family members who drive the vehicle could get a speeding ticket for what another driver did, or even worse you could get ticketed for what your friend does while driving your vehicle.

This may well be an irresolvable problem with trying to use anything like E-ZPass to catch speeders. Even with cameras, you couldn't be sure that it was one rather than another of a set of identical twins or two family members who look similar. They can send you a bill if your vehicle goes through an EZ-Pass lane when it's not supposed to (although the one time I did that I was told I'd get a bill and never did), but they can't touch your driving record without being sure it's you, for the same reason you can't get convicted of a traffic offense if the police officer doesn't show up in court to testify that you're the one they stopped.

In my post on some moral issues related to torture, I said I was planning another post on legal issues. As I've been thinking about what I wanted to say, I've realized that I don't really have anything to say about the legal issues. I don't know much about what the laws related to this issue actually say, and I don't have a clear proposal of what they ought to say other than the very general things I wish could be true of laws on this. The issues that I had really wanted to say something about are actually linguistic, not legal. I wanted to say something about the word 'torture' and why I think it's unfortunate that so much has focused on what falls under that term.

Here's the problem, as I see it. We've got a law (or treaty or something) that uses the word 'torture'. It then says torture is disallowed, or at least disallowed under certain circumstances. Part of the legal debate is whether cases of detainees in the war on terrorism count as falling under the law in question, and part is whether these techniques count as torture even if the detainees do fall under it. I have nothing really to say toward answering those questions, at least nothing that hasn't already been said ad nauseam. What I want to say is that it's unfortunate that those are the questions being debated.

Suppose you're a government official responsible for making decisions about what interrogation techniques are allowable and when. You're presented with this meaningless law that says we can't torture that doesn't tell you what counts as torture. In that case, it seems as if you have to figure out which cases count as torture according to what the English word means. It's plausible that one piece of evidence in figuring that out would come from interviewing the public about what they think counts as torture, since their use of the term is what makes it mean what it means to begin with. I think a number of philosophers of language would resist this, because we don't always know internally what factors in the world influence what our terms mean, but leave that worry aside. Suppose this would help us determine what counts as torture.

I don't think the actual case is like that. It's well within the realm of possibility that what legally counts as torture doesn't line up with what the English word 'torture' means, because the laws and codes dealing with torture often define it or give examples to declare which techniques legally count as torture. That means giving cases and asking if the cases seem like torture doesn't help. Besides, I don't think the opposition to some of these techniques really wants the law to be as vague as simply equating legally-defined torture with whatever the word means in English. They want lists of disallowed techniques, not some sense that the word in the law just means exactly what the word means. Laws like that are usually bad laws, because it's hard to enforce something without specific stipulations.

It's also within the realm of possibility that the legal definition of torture, which again might not line up with the popular meaning of the term in ordinary English, might actually diverge in meaning in different contexts. In particular, different kinds of laws might deal with different sets of things called torture. Is what counts as torture in a context of declared war against another country going to line up with what counts as torture in the war on terrorism? It's obvious that such a context shift doesn't change what the English word means. But if the legal definition doesn't line up with the meaning of the English word, why should we expect the same legal definition in both contexts?

This leaves us with a problem. How do we determine what legally should count as torture, given that it doesn't have to be whatever the English word means and it doesn't even have to be the same in all contexts? Here is my proposal. Stop discussing which techniques are allowed absolutely, because imaginable circumstances might allow some techniques that aren't allowable in less severe circumstances. The issue isn't whether we can list the techniques we do or don't allow. What matters is putting a system in place that can safeguard the process so that extreme methods are not used except in very extreme situations.

I'm not the sort of person to come up with ideas on what those safeguards are. I have no special background in law or the military. But I do know ethics, and I do know language, and what I'm seeing coming from the opponents of waterboarding and other techniques doesn't seem to me to fit with what seem to me to be the best ways of looking at the ethical and linguistic issues. The debate shouldn't be about what the word 'torture' in English includes, as if we can think about the technique and just intuit that it counts as torture. It also shouldn't be about blanket generalizations. It should be about putting specific procedures in place that should be followed in non-emergency situations to safeguard what kind of technique can be used, with another set of procedures in emergencies that will allow for on-the-spot decisions that can be allowed more leeway but still with serious repercussions if a subsequent evaluation leads to serious questions about what was done given what was known, what could be known, and what could be expected to be known.

Now a lot of the comments people have made on my first post have come from worries about abuses by those who would torture immorally for their own reasons and those who could give too much benefit of the doubt to those who would commit such abuses. That's a problem. But it's also a problem if we end up with a too-tight restriction when the extreme case occurs. What I would like is a safeguard system that can avoid both problems.In hard moral cases there isn't always a solution that gives you everything you might want. It does seem at least in principle possible for someone especially good in that kind of intelligence to come up with something that could do that (or at least end up with something in that direction). So I think it's possible that we're working with a false dilemma: restrict the interrogators more than the status quo does, or defend the insistence of the current administration that extreme techniques ought to have some place in extreme cirtcumstances. Couldn't there be a system of safeguards that moved toward achieving both aims?

The New Jersey Supreme Court has ruled unanimously that doctors are not liable for giving inaccurate information to women seeking to have an abortion. Justice Barry Albin wrote the opinion, which says:

On the profound issue of when life begins, this court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide.

First of all, this gets the issue compltely wrong. There's no debate whatsoever among actual doctors and scientists about when life begins. It begins at conception. Period. There are some who frame the issue in terms of when life begins, but they do so at odds with science. Those who claim that life does not begin at conception or that there's any serious scientific debate over when life begins are opposing science. People like to complain about the Bush Administration or social conservatives being anti-science, and this seems like such a clear case of the very thing those people complain about. If it's anti-science to suppress or deny controversial but nonetheless dominant views in the scientific community, then it's certainly anti-science to deny and suppress the universal position of all scientists that biological life begins at conception.

Now there is a debate over when moral rights begin. Some tie that question to what they call personhood, and then they define personhood in terms of capacities that only develop later on. They thus conclude that a fetus has no moral worth, and anything can be done to a fetus without any moral worries. That is a controversy, and people disagree about it, including scientists. But it's not a scientific question at all. It's a philosophical question about what sort of living being has moral status and is the subject of rights and moral worth. This particular doctor did not speak to such matters but simply told the woman who was asking whether the baby was already there, "Don't be stupid; it's only blood." When a nurse later told the woman that parts of the baby were still inside, she wondered how something that's only blood could have parts still there. The doctor lied to her, and she had depended on him for accurate information to inform her moral decision.

U.S. Supreme Court Justice Anthony Kennedy took a lot of heat from supporters of abortion rights in his recent opinion overturning lower court decisions that had declared partial-birth abortion bans unconstitutional. One thing many had complained about was that he had put quite a bit of effort into arguing that women are often not given accurate information about what the abortion process consists of and what is actually true of a fetus at the stage in question (6-7 weeks). Many complained that he was portraying women as stupid, ignorant, and in need of men to make their decisions for them. I haven't read the opinion closely, so it's consistent with what I know about the opinion that he did use language that comes across this way. But the general point does not require such a view of women. The general public is disturbingly ignorant on many matters, including scientific information relevant to moral questions. That this is so with abortion is demonstrated by this NJ case.

Doctors and pro-choice advocates who abuse their positions and take advantage of that ignorance by lying to women, as this doctor did, especially when they stand to gain financially or in any other way from such abortions, are doing something that in any other domain of medical science would be punishable by law. But abortion is the sacred cow that doesn't seem to require being treated like any other medical procedure. That was Justice Kennedy's main point, and I think this case demonstrates that his rhetoric, whether it was as anti-woman as people claim or not, is directed at a real problem that, even on pro-choice principles, ought to be addressed. Unfortunately, the NJ Supreme Court doesn't seem to recognize that. Fortunately, South Dakota and Illinois have similar cases that might end up differently, which would give the Supreme Court the opportunity to resolve the split among circuit courts.

A little while ago I had lots of things to say about the judicial nominee battle going on in the Senate and the claims by some of the Democratic senators, most prominently Senator Schumer, about the process of confirming the newest two Supreme Court justices. I didn't have the time to type up any of my thoughts, and it feels a bit late now. However, one thing I did want to say something about is the interesting reversal of roles that we see when the Senate shifts leadership and each party complains about the tactics of the other side. See Jan Crawford Greenburg's post here for some nice examples.

You might classify the views on such matters in terms of two pure positions. One is the view Senator Chuck Schumer (D, NY) has been consistent in holding (although his application of it leaves much to be desired, in my view). According to him, there is absolutely nothing wrong with expecting nominees to violate the current norm among judicial nominees not to comment on potential future cases or on issues one expects might come before the court one will be seated on. In the Roberts and Alito hearings, he pressed for details on whether they believe certain rights are established in the Constitution, whether they would be willing to overturn certain precedents, whether they thought particular cases were wrongly decided, and so on. They refused in many of these cases to go beyond the standard they both believed to have been presented by now-Justice Ginsburg's nomination process a decade-and-change earlier. Their reasoning is that commenting on what may be central to forthcoming cases will threaten their perception as unbiased judges, since those whose cases will be heard will think the justices' minds are already made up and will not give them a chance. But this is not the reasoning of the other pure view on such matters.

The alternative view is not merely that there is a convention among judges not to engage in such prediction out of fairness to parties in future cases. The alternative pure view is that it is simply not the business of the Senate in confirming judicial nominees to engage in partisan politics. That is for the president to be concerned with, since it is his election that determined who would nominate judges for any vacancies. The Senate's role is merely to safefuard the president's choices against serious corruption and ethical issues and to ensure that the nominees are qualified to carry out the tasks required of them. Deference is given to the president's nominee. The primary objection to this view is that the Senate is also an elected body, and they are elected for partisan reasons to present partisan considerations for or against what the Senate might do, including for or against judicial nominees in their role of advising and consenting. It is thus within their authority to question nominees who are both qualified and not corrupt simply because they disagree with the nominee on issues of legal philosophy.

I think the latter issue is an interesting debate in constitutional interpretation. The Constitution's text merely says that the Senate will advise and consent to the president's nominees. It doesn't give a reason why. It doesn't indicate what process the Senate will engage in before giving their consent or their advice. It doesn't say if the advice and consent are different stages of a two-step process. Those things are all not in the text of the Constitution but are in the Senate's current practice of carrying out this role. I don't know anything about the legal background to this sort of thing and whether English common law explains it. I don't know anything about the debates in the constitutional committees over this language and what light that sheds on it. I don't know anything about whether the federalist papers explain what some of the founders were thinking of as they argued for this kind of wording. In short, I am woefully unqualified to have much of a view about what the Constitution really means by saying this. If I were to go by what I take from it merely by reading the words, I'd be inclined to think that the Senate ought to give advice to the president and then confirm whoever the president selects.

Ilya Somin nicely clears up some confusions about what's commonly called the unitary executive. There are two issues: the scope of executive power and its distribution. The unitary executive view is that the president's authority over the executive (an intra-executive issue) is absolute. I would have thought this to be absolutely clear in the Constitution, but apparently some disagree. A separate issue is about the scope of executive power. How much authority does the executive has with respect to the other branches (an inter-branch issue)? In other words, unitary executive allows the president sovereign control over what happens within the executive branch, but this other view sees the executive power as expansive in a way that many find controversial. The problem is that many people keep calling the latter view by the term "unitary executive".

Somin says:

As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.

Is there an example of someone who both denies the unitary executive and thinks the executive has a limited role? Given that both positions serve to limit the president, perhaps hardly anyone seeks to try both ways at doing so, but I'm curious whether someone has tried.

I've finally gotten back to continuing my series at Right Reason with Religious Motivations in Politics. Given the Augustinian framework I've already presented, Christians have a motivation to seek the good of our neighbor around us by participating politically based on what we believe to be good, which does in part come from religious motivations. The post spends most of its time responding to objections that this is immoral because it forces a moral view on those who don't have it and that a secular society (or a religiously plural society) should not allow such a thing.

As I was posting my latest post in my Christianity and Politics series at the conservative philosophy blog Right Reason, I thought it might be nice to put together a post here linking to all the posts in the series. I will update this post as I add posts there. Posts 7 and 8 are tentatively titled, and I may even restructure what I hope to cover in remaining posts.

1. Introduction: Christian and Politics (Guest Blogging)
2. Augustine on Civil Government: The Two Cities
3. Augustine on Civil Government: Two Further Preliminaries
4. Augustine on Civil Government: Authority
5. Augustine on Civil Government: The City of God and Compromise
6. Christian Political Political Participation
7. Religious Motivations in Politics
8. Religion and the First Amendment

Jan Crawford Greenburg has a nice post looking at some of the overblown rhetoric about the last Supreme Court term. Much of the criticism of this last term, from both legal scholars and legal reporters, has been wildly inaccurate, conveniently forgetting important details and drastically misrepresenting the reasoning of the majorities. This is true from both the left and the right, but I'm in agreement with her that there really has been a pretty strident panic on the left. What's particularly strange about it is that it's a reaction to a few small steps in a direction opposite of what the Warren Court and Rehnquist Court had virtually made seem inevitable, and those who have come to see the pretty radical direction of the post-FDR Supreme Court as guaranteeing leftward movement eternally have now recognized that when Republican presidents actually appoint conservative judges it has an effect.

The reality is that the five-person majority isn't remotely monolithic. Justices Scalia and Thomas are originalists. They insist on giving arguments from the original meaning of the law in question or relevant section of the Constiotution. In Thomas' case, later judicial decisions that he thinks were wrongly decided have little value in interpreting what the Supreme Court should say. Scalia is much more inclined to allow precedent to have some value given that it throws the legal system into disorder if you overturn precedent willy-nilly. But he's still somewhat resistant to such moves. They don't agree on everything, not even in theory, but they tend to argue on the basis of original meaning (Scalia usually in terms of what an informed audience at the time would have understood, while Thomas usually seeks to discover the original intent of those who came up with the language in question. Often these will lead to the same result.)

But Justice Kennedy is more results-oriented. He has principles, but they are moral and political principles, not legal principles. He overturns laws and precedents when he thinks a moral issue is at stake. He rarely gives arguments based on original meaning or original intent unless he's trying to garner votes from Scalia and/or Thomas. He cites precedent when he thinks it will get him votes from other justices. But the parts of his opinions that seem to do the most work for him (i.e. the ones that use the strongest language and argue about how high the stakes are) are the kind of thing you'd expect to see in a political election or a congressional debate. They aren't legal arguments. Many of his principles are conservative, often moderately conservative, but some of them are clearly in line with the liberal wing of the Court (e.g. on whether abortion in general should be legal, whether the government can take your property so a developer can build a Wal-Mart, on the rights of gay people to have sex, on detainee rights and executive power).

Then there are the two newest justices. Chief Justice Roberts and Justice Alito are definitely conservative, and they have usually agreed at least in part on the results with Justices Scalia and Thomas and often enough with Justice Kennedy to frustrate Justices Stevens, Souter, Ginsburg, and Breyer. But they are a different kind of justice. They are conservative not in the sense of going for politically conservative results whenever it suits them (as Kennedy would do if he were more morally and politically conservative than he is) and not in the sense of sticking with the original meaning of the law in question or the Constitution. They give much a higher place to precedent.

From 2008 Central:

Tancredo is trying to keep the immigration issue alive. At his news conference Wednesday, he unveiled an immigration bill that would crack down on employers who hire illegal immigrants and limit citizenship to children born to at least one parent who is also a U.S. citizen or lawful resident.

Wait a minute. Wouldn't that be unconstitutional? From the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

He isn't proposing an amendment. He thinks it would be constitutional to do this. How so? I had to Google around to find his explanation, but here it is. He relies heavily on "and subject to the juridiction thereof", claiming that children of illegal immigrants aren't subject to the jurisdiction of the United States. I can think of lots of things that the contrast between those under U.S. jurisdiction and those not could come to, but the idea that children of illegal immigrants are not under U.S. jurisdiction is one of the least likely. Doesn't it raise problems for enforcing laws if illegal immigrants aren't under U.S. jurisdiction? Then why would their children not be?

Update: This post is about Tom Tancredo and the constitutionality of his proposal. Comments should be about that.

Marty Lederman raises an interesting inconsistency argument against two opinions the Supreme Court handed down yesterday, both touching on free speech and both written by Chief Justice Roberts. If you want to read the opinions themselves, they are Morse et al v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc. Here are the quotes Lederman compares:

From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."

From Morse: ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

I think the key would be to distinguish between different contexts for the two statements. If the context, the kind of case, and the circumstances of when it might be ok to act on the speech in some way differ in the right ways, then there's no inconsistency. In the school case, the issue wasn't whether it was a criminal act to say it. It was whether the school had the right to make a rule against it and thereby punish him in a non-legal way. It could outlaw that kind of speech within certain contexts, the Court concluded.

The other case didn't involve disciplining a student in a school for violation of a speech code or some such thing. It was about whether certain actions violate a law prohibiting a certain kind of speech.

I can understand why someone would think the burden of proof is much higher for establishing that someone has broken a law than it is for establishing that someone has broken a school speech code.

The other issue is that express advocacy seems to be a narrower concept in the Chief's mind, and there's no such narrower concept at work in the Bong Hits case.

I haven't read the opinions, so I don't know what Chief Justice Roberts would actually say, but I think I can make sense of why someone might view both cases differently even though both involve free speech. An interesting question is whether the dissenters, who also took opposite views on the two cases, can also provide a justification for wanting to restrict free speech in the campaign finance case while allowing it in the school case. They probably can, but I haven't read the opinions, and I haven't given it much thought.

I do think it's noteworthy that when people make such inconsistency claims they often forget to apply them to both sides. If conservatives favor restricting abortion but oppose animal rights, that has equal potential for inconsistency as favoring animal rights but opposing fetal rights. If conservatives have to explain how it's consistent to oppose abortion but favor the death penalty, then liberals who oppose the death penalty but favor legal abortion also need to explain how those positions are compatible. In any these cases, there isn't necessarily an actual inconsistency, but the charges are often made without considering that the opposite views might also have the same potential inconsistency.

This week, we're supposed to hear from the Supreme Court on a couple cases involving race-based assignment to elementary schools in order to ensure diversity at all schools (as opposed to race-based assignment of elementary schools in order to ensure segregation). I'm not sure yet that I have a view on the case. I plan to read the opinions carefully when they appear. I rarely do that. I think I've only read two Supreme Court opinions straight through when they appeared, and those were the sodomy and affirmative action decisions in the summer of 2003. But both were issues I was teaching about that summer, and I have particular interest in both issues because I regularly focus on both in ethics classes. This will be another case that draws my interest, but in this case I'm nowhere near as sure of what I think. I do think there's a difference between these cases and the segregation cases, but I also think there might be worries about how these programs work in the details. I may very well end up having mixed feelings about whatever the ruling is.

But here's one argument from Ed Whelan of Bench Memos that I cannot come close to endorsing, at least in its current form:

And how many American parents believe that any four-year-old should be forced to endure two daily 90-minute bus rides for any reason, much less in order to satisfy some social engineer’s rigid vision of racial balance?

I can understand that one more white kid in a white-dominated school is unfortunate in some ways, and I can understand concluding that it's not so bad that it's worth a 90-minute bus ride twice a day. But "for any reason"? What about a severely autistic kid who simply doesn't talk who needs a full-day pre-school program with none available in the entire county, and the closest one turns out to be one of the best in the entire region? And it's not fully 90 minutes. It's more like 75 (although it really is more like 90 for the other kid who rides his bus). And what if the kid actually enjoys the ride? I can't think of any better situation for my four-year-old than this, and it's unfortunate that the country can't keep paying for him to do it next year because of ridiculous state law requiring all kids his age to go to kindergarten regardless of any needs for further intensive pre-school services first.

This isn't really more than a quibble with his language, which could have been easily made to accomodate this sort of thing. If he hadn't spoken in such an absolute, he might have been accurate about most Americans' views. Even people who value diversity in education (and I'm certainly one of them, and I think it's ideal to have it at the earliest stages) may not think it's worth a 90-minute bus ride twice a day. But I think it's worth emphasizing a largely true generalization here. The more absolute you make a statement, the less likely it is to be true, especially when you're dealing with political issues, which are usually more complex than other issues (and especially more complex than either side of most debates will admit). I don't know very many Americans who, when presented with our situation, would think that we're immoral for sending Isaiah from Syracuse to Utica and back five days a week. The previous program he was in basically stalled his development right after he'd begun asking for things occasionally and using context-appropriate words occasionally (and then stopped right when he went to the half-day program), and he was making progress in this new program within a couple weeks of going there (and now is asking for things regularly, both with pictures and with actual words). Helping a four-year-old who is stuck whining and pointing to be able to ask for things with verbal language (never mind the other ways they've helped him out, which are fairly significant) is certainly worth the bus ride to another county, and even if he didn't like the bus ride I'd say that.

I've seen the following argument several times in recent months:

1. Hate crime laws make a penalty more severe only because of a different intent.
2. If you increase the penalty for a crime merely because of the motive, you are criminalizing a motive, i.e. a thought.
3. Therefore, hate crime laws are really criminalizing people's views and thus are thought crime laws.

The result is that a number of conservative organizations have been resisting hate crime laws and calling them thought crimes. Family Research Council is one group that has been doing this. When Congress had a bill on hate crimes in front of them, they were sending daily emails calling the bill a thought crime bill. I thought it was inaccurate to label it that way at the time, and I'm even more convinced of it now after reading Eugene Volokh's post from a few weeks ago on the subject. Volokh points out that we do this sort of thing all the time, and no one has any qualms about it. Treason is a thought crime, on this view. If I stole a government document in order to destroy it for the fun of it, it wouldn't be treason. But if I did it to sell it to North Korea or Iran, it might be treason. Also, murder or manslaughter can differ in terms of intent, as can different degress of murder from each other and different degrees of manslaughter from each other. Intent is extremely common as a means of distinguishing between different kinds of crimes with different penalties. Even less controversial discrimination laws can distinguish between different penalties (or whether a crime has even been committed) according to intent.

If those things count as thought crimes, then we shouldn't be opposed to legislating against thought crimes. But I think it's probably better to recognize that none of these things counts as thought crimes. A thought crime would be thinking something without doing anything further and then being arrested merely for having the view.

I haven't said anything about whether there are good reasons to favor or to resist including sexual orientation as specially protected in terms of hate crimes. I think there are reasons offered on both sides that have some merit. But it's silly to oppose these laws simply because they treat two murders or assaults as different according to motive. It's true that both are assaults, but they do have different moral factors that apply to them. One is a worse assault. At the same time, we don't always recognize morally important issues as affecting what kind of crime someone committed or even whether they committed a crime. I'd love to try to think through (at some point, not today) which factors count as legitimate ones in terms of motive. But ruling it out merely because it does involve motives is at best ignorant of how law generally works in this country with regard to different motives for the same act.

According to this story, James Dobson is on the pragmatist side of the pro-life camp, favoring the incrementalist approach to restricting abortion and thus earning the ire of those who think it is immoral to endorse any law or judicial decision that allows any abortion. His praise for the recent Supreme Court decision upholding the partial-birth abortion bad, and his endorsement of that ban to begin with, count as such pragmatist incrementalisms. After all, the ban only bans some abortions, and Justice Kennedy's opinion upholds the legality of abortion in most cases.

Dobson's difficulty is that he was treating what he saw as pragmatism among those who could vote for Rudy Giuliani against Hillary Clinton as thoroughly immoral, something he could never see himself doing. His reason seems to me to be parallel to the reasoning of those who are currently critizing him for being too pragmatist on these other issues. So is he consistent in taking these very different attitudes to things that some will treat both as pragmatist compromise.

I criticized Dobson's stance on the first issue, and for exactly the same reasons I want to say that he's taking the better approach on this second issue. But because I think the same reasons matter n both cases, I'm wondering if he can consistently treat the two cases as different in a way that justifies his vastly different language about each. Is there some principled reason why he could take what many would see as a pragmatist line on abortion laws and judicial decisions while calling someone immoral for taking a similar stance on which candidates to vote for? I'm not sure what such a principle might be. I can't think of any crucial difference between the two issues that helps distinguish them in the way he needs.

In a discussion on the Trinity, Trent Dougherty at Prosblogion rasies the question of whether President Bush is his own president. There's a sense in which Bush is the president of those who voted for him, i.e. they (at least at one point) identified with him as the person they wanted to be president. There's a broader sense in which he's the president of every U.S. citizen, i.e. he's the president who governs over them. That's the sense Trent has in mind. In that sense he is Ralph Nader's president as much as he is James Dobson's.

But is he his own president? Trent thinks yes, and I agree. Mike and Dale in the comments say no, and they offer two reasons. First, he can't pardon himself, which means he doesn't have that particular authority over himself. Second, he's not under his own authority, because as the top executive he's not under anyone's authority. I've adapted what follows from my comment on that post.

For my initial thoughts on the recent Supreme Court decision Gonzales v. Carhart, see here. Since that post, I've had a chance to see a lot more of the commentary that's ensued, and I wanted to highlight a couple responses I've seen to the aftermath, first on the claim that this is a religiously-motivated decision and second on the actual constitutional issue at stake. The first point comes from Rick Garnett here, in response to a post by Geoffrey Stone at the Huffington Post. The key quote from Stone is:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is "immoral" and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman "to determine her life's course" is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith.

Now consider Garnett's response:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.

As I've argued many times in the past (see especially here), there is no rational basis for the claim that pro-life convictions are mere religious dogma, because such assertions ignore a fairly rich philosophical framework that often lies behind such convictions. But what's particularly silly about Stone's claim is that one of the five justices in the majority in this case voted to uphold the basic right to abortion in 1992 and insists in this opinion that he sees himself still affirming that. If he's spouting forth Catholic doctrine in the guise of a legal opinion, how did he end up affirming what his church denies? Still worse, if Stone is serious about this he should worry about Kennedy's votes on capital punishment cases, since the Roman Catholic Church opposes the death penalty. I haven't heard anyone complaining about the church-state line being transgressed there. Even worse, the mainline Protestant denominations and Reform Judaism congregations of the four minority justices are officially pro-choice, and I don't see anyone complaining about their violations of church and state in voting in a way their religion happens to support.

I haven't had anything to say about the Supreme Court's upholding of the federal ban on partial-birth abortion in Gonzales v. Carhart, largely because a lot of what I've wanted to say would have taken a lot more time than I've had. But over the weekend I managed to put together some of my thoughts on the main issue.

It seems to me that the left-leaning are seeing this as a monumental move away from long-standing precedent. 1973's Roe v. Wade got it right in securing a right to abortion, was upheld in large part in 1992's Planned Parenthood v. Casey, and was applied accurately in 2000's Stenberg v. Carhart, when state bans on partial birth abortion were overturned. The right-leaning, on the other hand, are seeing it as a narrow ruling that makes a baby step toward possibly restricting abortion further, but it's just a small step, even if it's in the right direction. When all is said and done, I think both attitudes get something right but also get something important wrong.

It's true that this isn't much compared to what pro-lifers want, which is one psychological explanation for seeing it as a narrow ruling. It also actually is a narrow decision in one sense. The way Justice Kennedy words the opinion, it does not explicitly overturn any previous Supreme Court decision. It does not reconsider the right to abortion. It does not overturn the prior decision on state laws, which it still takes to be unconstitutional because they lack an exception for the life of the mother. It forms a distinction between this law and prior ones. Thus it seems from Justice Kennedy's opinion that nothing in the prior decisions would have had anything to say about had the law existed when those cases were decided.

But that picture isn't entirely true. Casey's famously vague "undue burden" standard has regularly been taken to include a health exception and not just a life exception. That's certainly how Stenberg took it. But then Kennedy hadn't signed on to the majority opinion in the latter case. He voted with the minority (i.e. with Chief Justice Rehnquist and Justices Scalia and Thomas). Jan Crawford Greenburg has a fascinating account of why. Apparently he thought Justice O'Connor had betrayed him by taking Casey in that direction. He didn't think he'd signed on to that when he switched his vote to join her in that case, thus putting her in the majority.

What we see now in this case is what he thought he was agreeing to in Casey. That's why he thinks this is fully in step with the Roe and Casey precedents. But it's not true that it doesn't overturn something in Carhart v. Stenberg. It overturns the requirement for a health exception, and that's quite significant, even if the majority opinion doesn't seem to recognize that it has done that.

Jan Crawford Greenburg has a fascinating piece in the Wall Street Journal called The Truth About Clarence Thomas [hat tip: SCOTUSblog]. It recounts some of what she learned about his first term or two on the Supreme Court from the records of other justices, especially Justice Harry Blackmun. I think this pretty much destroys the last vestiges of several of the common myths about Justice Thomas, e.g. "Justice Thomas is stupid", "Justice Thomas is simply Justice Scalia's lackey" (some would even call him his slave), "Justice Thomas doesn't have any original thoughts", "Justice Thomas' opinions aren't intelligent or well-written", "Justice Thomas isn't smart enough to ask questions during oral arguments", and so on. I've long wondered how much of this is buried racism that isn't allowed to come out with political liberals but is tolerated when it comes to conservatives, but I'm sure that even if it is it's not the sort of racism the person is aware of. I've blogged about some of these issues before here, here, and a series I started here but regrettably haven't gotten around to finishing yet. [Update: See also here.]

It turns out that, according to Justice Blackmun's notes, the first year with Justice Thomas on the court changed things drastically. He'd vote in conference as a lone dissenter, but then when the other justices saw his opinions several of them would change their vote and sign on to his dissent. This is especially true of Justice Scalia, which means it's more true that he was Justice Thomas' lapdog than the reverse, although neither is really true, and a more accurate description would just be that Thomas had just convinced Scalia with arguments that Scalia's original vote was wrong.

Oh, and as for oral arguments, apparently he's got a philosophical conviction against asking questions during oral arguments. He thinks it's the lawyer's job to present the case without much interruption. He considers it a violation of his oath to do otherwise. I simply thought he was the sort of person who takes a while to digest things over the long term but not quickly on his feet, something true of some of the best philosophers I know. But he's actually deliberately holding back for principled reasons.