Positive Liberty

In a puzzling post below, Sandefur weighs in on kidnapping. He seems to argue as follows:

1. It’s not acceptable to kidnap people.

2. However, the kidnapping story came from Reuters. Because of one boneheaded editorial decision (declining to use the word “terrorist”), no story from Reuters may be given any credibility. Besides, the Reuters staff in Israel once did something very stupid (n.b.: the Israeli Reuters contingent does not seem to have worked on the story in question).

3. We have not seen in what context an American soldier wrote the following words: “”What are you guys doing to try to get the husband — have you tacked a note on the door and challenged him to come get his wife?” Perhaps there’s some chance that this doesn’t really denote a kidnapping. Sandefur may be on the strongest ground of all with this point, but again, I’m not terribly impressed. It seems the plain meaning of the phrase — and hence the presumption we ought to have — is in favor of the kidnapping hypothesis.

4. There is also some chance that the kidnapped women and children may have been terrorists themselves; after all, it has happened before. By inference, Sandefur seems to suggest that it is relatively more legitimate to kidnap suspects than others. By similar inference, it is relatively more legitimate to use these suspects for blackmail against others who are, again, only suspects.

I hope that Sandefur did not intend for us to make these inferences — yet otherwise, why would he bring up this point?

5. The kidnapped women and children weren’t abused. Again by inference, the whole thing is relatively more legitimate. Relatively, perhaps, but I still don’t like the looks of it.

The comments are open, and I welcome responses there.

David Rivkin and Richard Epstein debate the NSA’s telephone surveillance program and the scope of executive power. A must-read! (Start from the bottom.) I think it obvious that Epstein wins this argument.

Kuznicki is right, of course, that for us to seize innocent women and children and hold them as hostages for terrorists to come out of hiding is simply not an acceptable military tactic. However, 1) this story is from Reuters, which long ago sacrificed its claims of reliability as far as I’m concerned, 2) it’s based on excerpts from sources we are not being allowed to see for greater context, 3) it would be highly naive for us to assume that the wives of terrorists are necessarily innocent civilian bystanders who have nothing to do with their husbands’ business, and 4) one notes there is no accusation that these women were abused. What we ought to do with stories like this is wait for more information before assuming that our military is guilty of wrongdoing. They might be, and they might not be.

The California Lawyer article about me is now up. Subscribers only, unfortunately, but there’s still a nice little picture….

Wow. I quit blogging for a few days, and this is what happens. The United States has been kidnapping civilians to use as hostages.

U.S. forces in Iraq, in two instances described in military documents, took custody of the wives of men believed to be insurgents in an apparent attempt to pressure the suspects into giving themselves up.

Both incidents occurred in 2004. In one, members of a shadowy military task force seized a mother who had three young children, still nursing the youngest, “in order to leverage” her husband’s surrender, according to an account by a civilian Defense Intelligence Agency intelligence officer.

Let’s be clear about this. These are not unsubstantiated claims, not rumors, and not — so far as we know — falsifications. They are actual U.S. military documents. They detail a practice that is forbidden by the Geneva conventions, to which we are signatories. This practice happened (and for all we know, is still happening) in a conflict zone, Iraq, where the conventions are unquestionably in effect.

Where is the outrage at this? When FARC does this in Colombia, we are outraged. But when our own armed forces kidnaps women and children, we should rally round the flag, because it’s so good that we are willing to take extraordinary steps to protect our freedom.

I hope I don’t speak only for myself when I say that my own freedom does not require this protection.

In his magisterial work America’s Constitution: A Biography, Akhil Reed Amar declares his intentions early: “If this be Whiggism,” he writes, “Americans should make the most of it (p 19).”

Amar keeps his Whiggish tone throughout the book. His message is that while the document and its various writers have certainly made their share of mistakes, the good of the Constitution far outweighs the bad. He resists — at times with a fair bit of bluster — the academic temptation to describe our founding document as a simple power grab by the wealthy. He also resists criticizing the Constitution, as some libertarian commenters have, for being an imposition upon state sovereignty. In Amar’s view, the people, not the states, are sovereign (a view that I share). And for the most part, Amar finds that the Constitution has served its sovereigns as well as anyone might reasonably expect.

One key argument that Amar repeats throughout the work is that the Constitution of 1787 was remarkably democratic for the era in which it was approved, that it was approved through a process that was still more democratic, and that, even on those topics where it erred most appallingly — the failure to prohibit slavery, for instance — the document could not have done otherwise and survived. Nearly everything worked out as well as one might hope for, and it put us on the path to better and better things.

By now, the professional historian may be permitted to scoff.

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From Andrew Sullivan:

At the same time, I have to say I’m struck by the references in the document. It’s pretty stunning to me that Benedict should cite Plato’s Symposium for his definition of eros. This sentence is mind-blowing:

“That love between man and woman which is neither planned nor willed, but somehow imposes itself upon human beings, was called eros by the ancient Greeks.”

Er, not exactly. For the Greeks, eros meant a kind of longing. Plato saw it as bound up in the search for truth, as well as for beauty. But also – critically – it describes same-sex love as well as opposite-sex love. The Symposium, the source of Benedict’s description of eros, treats same-sex love interchangeably with opposite-sex love, and the myth cited by Aristophanes even places same-sex erotic love on a higher plane than mere heterosexuality. (I’m even hoping to use the passage in my own marriage service, and began my anthology on gay marriage by citing it.) Benedict must know this. He’s a deeply learned man. Why rest his own treatment on sources that clearly embrace gay love? Beats me. He even cites Virgil’s Eclogues, a deeply homoerotic work. Part of me thinks that Benedict’s anti-gay posture is just orthodoxy, made more reactionary by the social revolution of our time. And then I wonder if he doesn’t have an esoteric meaning as well. Nothing in this encyclical couldn’t apply to same-sex eros; his bigoted Instruction has helped expose the fact that the Church is a deeply homosexual institution, and in the West, at least, there’s no real attempt (so far) to purge gay seminarians and priests. Maybe the Instruction’s unpersuasive and naked bigotry is esoterically designed to advance the argument that gay people are obviously not “objectively disordered” in such a way to render them unfit for the priesthood. Is Benedict quietly showing the validity of same-sex eros and equal dignity of same-sex eros, even while publicly denouncing it? Or have I read too much Leo Strauss? Probably the latter.

Speaking of the Straussians, see this excellent article by Robert Kagan entitled, I Am Not a Straussian. My favorite part:

As best I can recall, their biggest point of contention was whether Plato was just kidding in The Republic. Bloom said he was just kidding. I later learned that this idea–that the greatest thinkers in history never mean what they say and are always kidding–is a core principle of Straussianism. My friend, the late Al Bernstein, also taught history at Cornell. He used to tell the story about how one day some students of his, coming directly from one of Bloom’s classes, reported that Bloom insisted Plato did not mean what he said in The Republic. To which Bernstein replied: “Ah, Professor Bloom wants you to think that’s what he believes. What he really believes is that Plato did mean what he said.”

Today’s Times has this article on the ballot propositions in California to reform eminent domain.

My colleague Dave Breemer points out that the book of Micah has something to say about eminent domain abuse:

Woe to them that devise iniquity, and work evil upon their beds! when the morning is light, they practise it, because it is in the power of their hand. And they covet fields, and take them by violence; and houses, and take them away: so they oppress a man and his house, even a man and his heritage. Therefore thus saith the LORD; Behold, against this family do I devise an evil, from which ye shall not remove your necks; neither shall ye go haughtily: for this time is evil.

Mic. 2:1-3.

James Ryan has a very interesting review of two books that critique originalism as a compelling theory of constitutional interpretation available at SSRN (it will be published in the Stanford Law Review soon). One of the books he reviews, Active Liberty, is written by none other than Supreme Court Justice Steven Breyer and it is aimed primarily at Justice Scalia’s brand of originalism. Breyer and Scalia have appeared at forums together essentially debating this subject over the last few years, which I would pay good money to see as I think they are the two finest minds on the court. This book, no doubt, is intended to be a response to Scalia’s 1997 book A Matter of Interpretation.

The other book being reviewed is Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America by liberal law professor Cass Sunstein. Of the two, Ryan appears to prefer Breyer’s book and he says that while offering up good arguments against originalism and compelling examples of where those who claim to be originalists have left their originalism behind in order to reach a desired result, neither of them offers up a coherent alternative to originalism as the correct theory of interpretation. But I suspect that, in fact, neither of them would consider that a weakness; indeed, I suspect both would argue that there is no single true method of interpretation.

I’m going to quote a fairly long excerpt from Ryan’s review below the fold, dealing primarily with Scalia’s inconsistencies in regard to originalism and then draw some parallels between conservative judicial positions and conservative religious positions.
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Check out this cool site for X-1 and other classics!

Via Amber Taylor comes this story that scientists believe they’ve conclusively identified typhoid pfever as the plague that struck Athens during the Peloponnesian War. The plague is recounted in harrowing passages of Thucydides.

In my first post on Akhil Reed Amar’s America’s Constitution: A Biography, I mentioned that there were some serious flaws in the book. One of the most glaring is his overly hasty treatment of the commerce clause. See pp. 106-08.

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I was rereading part of Sandefur’s classic article from the Harvard Journal of Law and Public Policy and noticed how footnote 203 posits a sentiment similar to that of my recent post on Justices Blackmun and Stevens, pro-sodomite Lockeans:

[FN203]. Douglas B. Rasmussen, Why Individual Rights?, in INDIVIDUAL RIGHTS RECONSIDERED: ARE THE TRUTHS OF THE U.S. DECLARATION OF INDEPENDENCE LASTING?, supra note 123, at 113, 119-26. The notion of self-directed personal flourishing that Rasmussen describes was most consistently asserted by Justice Blackmun:

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.”‘ Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) (alteration in original) (citation omitted). Cf. Lawrence, 123 S. Ct. at 2478 (“[A]dults may choose to enter upon [a sexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons…. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”). It is not by accident that Robert Bork centers his legal theory on an attack on this passage from Justice Blackmun’s Bowers dissent: “That view of the individual and his obligations can hardly be taken seriously,” he writes. BORK, supra note 4, at 121. “In [the conservative originalist] view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ’society as a whole.”‘ Id. at 121-22. A comparison to Bork’s view is found in a letter from Thomas Jefferson to James Monroe:

If we are made in some degree for others, yet in a greater we are made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not … liberty …. Nothing could so completely divest us of that liberty as the establishment of the opinion that the state had a perpetual right to [its] members. This to men of certain ways of thinking would be to annihilate the blessing of existence ….Letter from Thomas Jefferson to James Monroe (May 20, 1782), in THOMAS JEFFERSON: WRITINGS, supra note 14, at 777, 779.

Last night’s episode of Battlestar Galactica was disappointing in some ways, but hopeful in others. The plot centered around nasty dealings within the black market that has sprung up among the fleet. This market apparently consists of people trading goods and services (including prostitution) for ration coupons. Why the market is “black” is unclear—Apollo says that it’s illegal, but why would the authorities make it illegal for people to trade ration coupons?

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Today is the twenty-year anniversary of the destruction of the Space Shuttle Challenger. Hard to believe.

California State Senator Christine Kehoe has introduced a bill supposedly to reform eminent domain abuse. You’ll remember that last year, she introduced a bill which would have done nothing more than put a two-year moratorium on the condemnation of “owner occupied, residential property,” and which was therefore the least effective of the measures introduced that year. (Even so, it ultimately failed). Her new bill, SB 1206, is yet another attempt to (in Dan Walters’ words, “pretend to do something about eminent domain without actually doing anything to upset the apple cart.”

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You guest it, WorldNutDaily. Written by David N. Bass, “a 20-year-old Christian homeschool graduate,” the article reads like a textbook at how certain “pro-family” groups use false, unreliable, or misleading statistics to bash gays under the rubric of “science” and “health.”

I don’t have the interest in picking the entire thing a part (I’m sure other bloggers like Ed Brayton or Exgaywatch will), so I’m simply going to focus on his statistic point number 5, in which he writes:

Life span — A 1997 study published in the International Journal of Epidemiology found that even under “the most liberal assumptions, gay and bisexual men in this urban center are now experiencing a life expectancy similar to that experienced by all men in Canada in the year 1871.” The same study estimated that homosexual behavior reduces the lifespan of males by eight to 20 years. Comparatively, the CDC has found that male and female smokers lose an average of 13.2 to 14.5 years of life, respectively.

Now, these same folks used to cite Paul Cameron’s phony “43″ figure until they got too much egg on their face, and realized they had to look somewhere else. So now they cite the IJE “8-20″ figure. The problem with the IJE study is that while the researchers (unlike Cameron) may have been credible and while the number may have had some kind of original validity, it is no longer valid and citing as if it were is akin to lying.

The IJE figure was derived from one study, never replicated, taken from one Canadian urban enclave (so it probably never had a representative sample of gays, but rather disproportionately drew from sub-culture oriented urban gays). More importantly, the study was done during the worst of the AIDS crisis, just before the newer, groundbreaking meds were introduced. And those meds greatly impacted and reduced mortality rates within the gay community. In 2006, whatever validity the statistic originally may have had, it has not been valid for many years and the authors of the study attest to this. They wrote in 2001:

In our paper, we demonstrated that in a major Canadian centre, life expectancy at age 20 years for gay and bisexual men is 8 to 21 years less than for all men. If the same pattern of mortality continued, we estimated that nearly half of gay and bisexual men currently aged 20 years would not reach their 65th birthday. Under even the most liberal assumptions, gay and bisexual men in this urban centre were experiencing a life expectancy similar to that experienced by men in Canada in the year 1871. In contrast, if we were to repeat this analysis today the life expectancy of gay and bisexual men would be greatly improved. Deaths from HIV infection have declined dramatically in this population since 1996. As we have previously reported there has been a threefold decrease in mortality in Vancouver as well as in other parts of British Columbia.4

Folks like Mr. Bass claim that they don’t hate homosexuals, they are just following their religion, etc. etc. and certainly I’m willing to give their devout religious convictions the benefit of the doubt. However, when they willfully lie or manipulate statistics to bash gays, I have a hard time believing that these people aren’t professional haters.

So I’m having a conversation with my buddy Dan this morning about constitutional law and while talking about how a strict formalist would argue that the only part of a court ruling that is truly binding is the court’s holding alone, not the explanation for that holding (or “dicta”), I get this epiphany about the Gonzales v. Oregon assisted suicide case, particularly about Scalia’s dissent. The crux of the case was whether the court must give deference to the Attorney General’s interpretation of a statute or not. Following the passage of Oregon’s assisted suicide law, AG John Ashcroft made a formal ruling interpreting the Controlled Substances Act as prohibiting doctors from prescribing medication for any purpose other than to heal and asserted that this law had primacy over Oregon’s state law allowing doctors to do so.

There was little in the text or history of the CSA itself that indicated that Congress intended the law to apply in this situation. Indeed, the history of the law clearly indicated that its purpose was to stop the illicit trafficking in drugs. The majority of the court decided that the AG’s interpretation did not deserve deference from the court because it conflicted with their reading of the text and intent of the CSA. Scalia filed a dissent arguing that the court should have given full deference to the AG’s interpretation of the statute.
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Yes, that’s me on the cover of the February issue of California Lawyer magazine. The article, by Martin Lasden, covers my recent work on eminent domain. Unfortunately, non-subscribers can’t read it—and it’s not up on the California Lawyer website yet anyway. But it’s a nicely balanced article. Of course I disagree with Lasden’s interpretations of some of the cases he mentions, but he quotes me fairly, even when I wasn’t as clear as I could have been.