The Right to Bear Arms Deconstructed in the light of an Ukaze from the Dutchy of Grand Fenwick.

Supreme Court watchers have been outraged - well, ok, I've been outraged - by the easy way that SCUSA has come to rely upon the conventions of non-sovereign foreign ectoplasms, such as the United Nations, to construe American organic law. Given the fact that such
"legislation" is (a) not democratically enacted, (b) framed by entities over which there is no democratic oversight, (c) unrelated to any possible intent of any possible framer of any American law and (d) unrelated to the local and parochial interests of local American communities, the emanations of such fictitious entities ought to have the same relationship to constitutional jurisprudence as would a random belch of Benito Mussolini or a rescript from the Holy Roman Empire. But there is a disturbing trend that a number of justices subscribe to the notion that foreign laws should inform the interpretation of the Constitution (at least, that is, as Jockulocracy observes, until the Charter of the Galactic Federation is approved.)

Here's an informative essay by Sandy Schulz that discusses this trend and why we should be disturbed by it.

Like being hit by Lightning.

Criminal Law has a death penalty cavalcade, including this one where the prosecutors have decided to pass on the death penalty for a person who has pled guilty to killing 48 women. The defendant in that case is Gary Leon Ridgway who has copped to being the "Green River Killer."

That's pretty surprising. I hadn't realized that the police had caught the Green River Killer, who has been murdering for two decades. Also, why did the prosecutors take capital punishment off the table for a person who by his own admission is one of the sickest skins of walking cancer to have blemished this planet? Do they think that his plea is fictitious? If so, why take it?

The article has some answers:

"He deserves the death penalty, but what would be the point?" said Tim Meehan, whose pregnant sister Mary was found dead in 1983. "Twenty years from now, when he'd actually be put to death, he'd be in his mid-70s. At least now the families have an opportunity to have answers. Closure is well worth the tradeoff."

Elsewhere this salient point is made:

Some legal experts said the plea bargain raises the question of whether anybody could be executed in Washington state.

"People are concerned that if they don't seek the death penalty in the Ridgway case, it would not be permissible to seek it in any case," said University of Washington criminal law professor John Junker. "How do you find anybody who's done worse than he's done?"

It does raise for this former death penalty supporter the question of whether the imposition of the death penalty can be anything other than capricious and arbitrary if the human pus that is Gary Leon Ridgway doesn't merit the application of capital punishment.

This is neato science.

According to this article, the great extinction of 270 million years ago resulted from a decline in oxygen levels to approximately 50% of current levels. Sea level oxygen content back then would have been like being at 14,000 feet today. Some animals - specifically, dinosaurs - developed lungs that would compensate for this diminished oxygen. The descendants of those animals still have the same adaptations which allows them to survive at altitudes with diminished oxygen.

We call those descendants "birds."

How bizarre. Oxygen levels dropped by 50% because of changes in the enironment? Don't tell the liberals or that's going to be the next big scare.

Hanson on Anti-Semitism and Reflections on the Absence of Mean Spirited Jokes about Islamic Terrorists.

Victor Davis Hanson has some reflections on modern leftist anti-semitism:

So they all, whether by design or laxity, take the easier way out — especially when slurring "Israel" or "the Jews" involves none of the risks of incurring progressive odium that similarly clumsy attacks against blacks, women, Palestinians, or homosexuals might draw, requires no real thinking, and seems to find an increasingly receptive audience.

You see, in our mixed-up world those Jewish are not a "people of color." And if there really is such a mythical monolithic entity in America as the "Jews," they (much like the Cubans) are not easily stereotyped as impoverished victims needing largesse or condescension, and much less are they eligible under any of the current myriad of rubrics that count for public support. Israel is a successful Western state, not a failed third-world despotism. Against terrible oppression and overt anti-Semitism, the Jewish community here and abroad found success — proof that hard work, character, education, and personal discipline can trump both natural and human adversity. In short, the story of American Jewry and Israel resonates not at all with the heartstrings of a modern therapeutic society, which is quick to show envy for the successful and cheap concern for the struggling.

Odd, isn't it, that after being attacked by Islamic terrorists, after spending decades of being economically held hostage by Islamic states, after intervening to protect Muslim's lives, the arbiters of the zeitgeist have thought long and hard and determined that the "Jews" are the problem?

Another weird thing is the absence of any Moslem jokes, terrorist jokes or the other forms by which a group esprit de corp is developed against "the Other." (Nothing wrong with demonizing "the Other", mind you, where "the Other" is demonically trying to kill you.)

It's not that we don't objectify "the Other." It's just that there is a short list of politically correct "Others" about whom such jokes can be told. For example, on Halloween evening, I stopped by the bar that serves as the DPB&W megafirm's other office. It was slow and I and another patron were the only customers. The bar down the way was having a costume party. A couple walked into that bar dressed as a priest and a nun. The bartender - who I've known for years - leaned over to the two of us and said, "Hey, do you know how to get a nun laid?"

Seeing what was coming, I grunted a "no."

He said, "Dress her up as an altar boy."

Now, there was no conscious malice there. The bartender knows I'm Catholic. The bartender is Greek Orthodox. Another regular, and a long time friend of the bartender, is Serbian Orthodox. There has been some good natured ribbing over the years. But somehow I got to thinking, "you know, while I've heard dozens of 'the priest and the altar boy' joke, I've never heard an ethnic joke featuring an Islamic terrorist."

Now, I said that there was no malice intended, but there really was. There is a casual kind of malice that is subsumed in the general culture. These jokes are like urban legends. They serve as cautionary tales that reinforces the things that we really know on a metaphysical level. (Which is why my ripostes about the Orthodox are so weak - there simply is no general backdrop of "accepted stereotypes of Serbian/Greek Orthodox" that I can play against. My most succesful to date constitutes a variant of "In Greece, how do they separate the men from the boys?" "With a crowbar." But that has no real resonance in this day and age.)

I've got no real point here, except to wonder when it became socially unacceptable to mock the Enemy.

Or to wonder who the liberal arbiters of correctness believe is the Enemy.

Further Reflections: Of course, I belong to a social group that really inspires some mean spirited humour intended to objectify the Other. I think every attorney has had to listen to the innumerable lawyer jokes that dot the popular landscape. One theory about such jokes is that they reflect in some fashion that lawyers matter - that lawyers are important as a powerful culturally dominant element of society. Which may explain why there are no similar jokes about accountants. With that in mind, consider this excerpt from a book review in the Nation:

One could debate how "significant" anti-Catholicism is today. By pop culture's gauge, it's surely also significant that the most interesting television family, the Fishers of Six Feet Under, with their secrets and faceted sexuality, is Catholic; that the liberal icon of mainstream TV for the past four years, President Josiah Bartlet of The West Wing, is Catholic; that the Sopranos, who both confirm and confound stereotypes, are Catholic. Although they figure far larger in mass consciousness than the theatrical satire Sister Mary Ignatius Explains It All to You, Jenkins doesn't mention them. Instead, he catalogues potshots taken at the iconography, the clergy, the Pope--Sister Mary, Andres Serrano's Piss Christ, Sinéad O'Connor's Saturday Night Live tear-up of the Pope's picture, Tony Kushner's denunciation of the Pope in these pages after Matthew Shepard's murder--and notes that similarly vituperative statements would not be tolerated against any other group.

He points to the pains taken recently to argue that Islam is a religion of peace when in practice it has also been repressive and bloody-minded. But he misreads the motivations of Islam's non-Muslim mainstream defenders. Since the same government officials who flatter Islam and warn against vigilantism are also the authors of state-sponsored harassment of and terror upon Muslims, their encomia to the faith ought properly to be understood not as sensitivity but as social control. Likewise, generosity toward Islam among liberals these days largely reflects respect for civil liberties, not religion. Individual Catholics might take offense at the freewheeling criticism of their church, but among them there is no equivalent of The Muslim, The Arab, who really has become the bogeyman.

For every "priest and the altar boy" joke there's some movie or book where the priest really is the validator of morality. On the other hand, I don't know that "The Muslim" or "The Arab" has really become a bogeyman in the circles I travel, which may explain why there are no jokes.

Woolsey on Iraq.

The Washingtion Journal on C-SPAN has former CIA Director James Woolsey (1993 -1995) answering caller questions. Several interesting point.

First, Woolsey labels as "naive" and "foolish" callers who claim that there were no ties or connections between Iraq and Al Quaeda. Iraq, he says, clearly trained Al Quaeda in a variety of ways and even if there is presently no proof of a tie between 9/11 adn Iraq, there definitely were ties between Iraq and terror.

Second, Woolsey had only two semiprivate meetings with Clinton during his tenure. One semiprivate meeting between the CIA chief and the President per year.

Third, Woolsey feels that it would have been useful to have entered Iraq with Iraquis of the diaspora, but that would have required spending $87 Billion dollars which had been authorized by Congress.

Net conclusion: In the post 9/11 world, the United States cannot sit back and let states like Iraq arm and train our enemies to serve as their proxies. Clinton had no substantial interest in security matters. And the money you save in the past may have to be paid in the future.

Bear Flag League Merchandise Here.

Most influential books for conservatives.

Right-Wing News asked conservative bloggers to list the books that most influenced them. I happy to see that Robert Heinlein's The Moon is a Harsh Mistress ended up Number 7 on the list. I first read that book when I was in 6th Grade and re-read it every year until I was in High School. Whether I was dealing with Randites or Libs, I found its attitude of empirical uncertainty - "I don't know, but you don't either" - useful in dealing with folks who had the Answer.

As for the other entries, I have to wonder who seriously would list either Coulter or Limbaugh. Those two are fine for getting the juices flowing, but they're preachign to the choir. They're hardly seminal or likely to stand the test of time.

An author who deserves to stand the test of time, but apparently isn't going to, is the now largely forgotten Alexander Bickel. Two of Bickel's books really - The Morality of Consent and The Supreme Court and the Idea of Progress - deserve to be unearthed by any conservative - actually by any person interested in a view of a Constitution that is something more than the chance concurrence of 5 justices. Here's an interesting passage of an interview I found through Google:

At Yale, you encountered and studied under one of the two mentors in your life -- Alexander Bickel, who was a Professor of Law.

Yes.

Tell us his impact on you and the educational journey you've taken.

Alex Bickel had an enormous impact on me. He is a man who was born in Bucharest, came to this country at age twelve, became a brilliant student himself, clerked for Justice Frankfurter. He was, in the classroom, electric. Alex Bickel had a mind of enormous originality. He encouraged students to engage him and debate him. He was enormously generous. He helped me when I wanted to enter law teaching. Alex Bickel was the most important teacher I've ever had.

What did he teach you?

Constitutional Law. He was a constitutional law person, but he had views on constitutional law which were quite out of the received conventional wisdom at the time, and today, I think, sadly, are hardly regarded at all. I regard them highly, but history has, in a sense, passed by his views. Maybe they'll come back someday.

What were those views?

Well, he is very much a person of judicial restraint.

I see.

Very much a person of keeping the Supreme Court out of federal courts, generally, out of decisions that ought to be made by legislative and elected officials.

I would also include Irving Kristol's Two Cheers for Capitalism and Norman Podhoretz's Breaking Ranks which is an invaluable history of the Stalinist mindset of the Old and New Left and the crack-up of that orthodoxy that led to the Neo-Conservative Movement which provided the Reagan Revolution with much of its firepower. I might also include James Q. Wilson's Thinking About Crime which did much to re-orient American policy on crime and punishment from the self-defeating model that had previously ruled supreme.

Someone once said that the "Golden Age of Science Fiction" was whenever you were fourteen. If you check the publication dates of the books above, I guess you could conclude that the "Golden Age of Political Writing" was whenever you were nineteen.

Que es muy macho? Part II.

Appropos of my aphorism below that "Irish chicks kick butt," please consider Exhibit "A" - Catholic schoolgirls beat the crap out of a flasher.

Don't be "turning the other cheek" on a bunch of Catholic schoolgirls. They will kick your A**.

All of which, however, may flow from the other aphorism that Irish Catholic fathers impart to their daughters -

"You can't date until you're 30."

Que es muy macho?

Lloyd Bridges or Efram Zimbalist, Jr.?

The Gender Genie Site has attracted the attention of various bloggers, including those at the Bear Flag League. The site apparently measures word choice to "guess" the gender of an author. I suspect that it assigns "male" values to definite articles and active voice words such as "the" or "is" and "female" values to equivocations and passive voice phrases. (Silly, actually. It would be more scientific if it used a truly empirical algorithm such as phrases related to football, beer and belching versus gossip about friends. But, I digress.)

Anyhow, my post on the pledge scored a righteous score of "Female Score: 795
Male Score: 1663." Yaa! Who rocks now, Baby? Who da Man? (Sound of chest thumping and loud belch.)

Please compare said score, however, with Justene Adamec's at Calblog which is Female Score: 651 Male Score: 1332." (Yaa, whoop whoop noises.) Or Window Manager Mitch who "got a male score of 238 versus a female score of 58." Or the Boi who scored a studly Female Score: 401 Male Score: 842 and thereby shows the importance of football related blogging.

Nonetheless, the most macho blogger appears to be the Irish Lass whose says:

When I posted about Steve Samuelian, the Genie was 100% positive I was a man (Female Score 0 - Male Score 127).

Proves a point I keep telling my daughters - Irish chicks kick butt.

Further Reflections: I didn't read the Lass's post on Samuelian, but Samuelian is my representative in Sacramento - and, incidentally, I want to make clear that I voted for the other guy and called anyone who declared themselves a Samuelian supporter to be a fool both after and before the election - and hence I know something about Samuelian. I think I can infer what the Lass said about Samuelian even without having read her post.

That said, I would have to think that using phrases like "asshat" and "needledick" couldn't help but improve one's male gender score. (Not that I could ever dream of getting such observations about a public servant past the ever-vigilant Lex Communis editing staff.)

Happy Halloween, Part II.

If you want spooky, check out this Rod Dreher post. For the record, as a fervently committed empiricist, I don't believe a word of any of it. But it's still spooky.

Happy Halloween.

Oooh, scary.

Wonder who's Ratzinger now.

There's a nice little squabble going on at various St. Blog's mega-sites about Andrew Sullivan's charge that Mark Shea and Amy Welborn are "Ratzingerites." Here is Amy Welborn's response.

A Flaming Bear Flag League Round-up. Check it out.

Good Grief.

According to the Washington Times:

Justice Sandra Day O'Connor predicts that the U.S. Supreme Court will increasingly base its decisions on international law rather than the U.S. Constitution, according to an article in the Atlanta Journal-Constitution.
By doing so, the court will make a good impression among people from other countries, she said.
"The impressions we create in this world are important and they can leave their mark," Justice O'Connor said.
On the whole, the U.S. judicial system leaves a favorable impression around the world, she said "but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out."

Pledge Case Update.

We here at Lex Communis are dedicated to bringing the inside story about that cruel bitch we call "the Law." This sometimes requires our dedicated professional staff to engage in antics and exploits that rival those of legendary OSS of World War II fame.

Last night it meant talking to Terry Cassidy on a cell phone while precariously perched on a bar stool at the tavern that serves as the Doyle, Penner megafirm's second office while drinking a beer. Cassidy and the first named guy go way back and they had some other dealings going on. But since Terry is the guy who will defend Western Civilization before the Supreme Court on the Newdow case - the Pledge of Allegiance case - I thought I'd try to get his thoughts on the status of the appeal after Scalia's recusal. (A development that has the dedicated professionals of Lex Communis "bummed." I mean what good is having an Italian Catholic member of the Knights of Columbus on the Supreme Court if you can't get him into the big game.)

Terry expressed confidence in prevailing, even without Scalia. While the constitutional issue pertaining to the phrase "under God" is what attracts everyone's attention, he seems to think that Newdow's case will flame-out on the standing issue. Namely, Newdow is legally a stranger with respect to the education of his daughter and the law does not permit strangers to shape or dictate educational policies. I have no opinion on the subject, although I muttered something about "taxpayer standing." In truth, I have long since forgotten what the rule is on "taxpayer standing" but it appears that Newdow doesn't have it.

Terry also advised that the case will probably be argued in February and that Ted Olson will be presenting arguments on behalf of the side of the Forces of Light and Truth. Interestingly, when I asked him whether he would make Ted Olson - Ted Olson! - flip a coin to see who went first, he indicated that he might decide to argue first and let Olson finish strong. Sounds like an interesting tactic. Terry's been to the SCUSA once before, so he's not a virgin, albeit Olson has been there scores of times.

My reference to "coin flip" incidentally was based on the infamous incident when Fresno attorney Thomas Campagne forced a coin flip about who would speak first to the SCUSA., thereby ousting University of Chicago Professor Michael McConnell. Campagne's performance was - to be polite about a fellow member of the Fresno bar - apparently not compelling, with the result that the compelled business speech is just hunky-dory.

(I am being polite - that oral argument ended up on the list of "dubious achievements" for that year. The high point of the argument went something like:

As Tony Mauro reported in the Legal Times, Mr. Campagne "spent considerable time discussing varieties of fruit to make his point that generic ads for one kind of peach or plum do not benefit those who grow other varieties." He often seemed to dwell on the facts of the case, to the exclusion of making a compelling First Amendment argument.

At one point, the discussion took a turn for the bizarre. Mr. Campagne pointed at Justice Scalia and said: "You ought to buy green plums and give them to your wife, and you're thinking to yourself right now that you don't want to give your wife diarrhea."

Startled, Justice Scalia replied: "Green plums? I would never give my wife a green plum. I've never even seen a green plum."

The bottom line is that you have to be careful with those coin tosses - do one wrong and you set the cause of liberty back a century. (Further note: Campagne is an extremely competent, bright, aggressive ag lawyer. My take on this is that he resorted to an area of his competence - agriculture, which may be an example of the Peter Principle in operation.)

Terry also feels comfortable on the First Amendment issue even with Scalia recused. Based on his thinking, he may be right. I hope so. I passed along the encouraging thought that although nobody knows him today, if he loses this one his name will be a household name in a case that is studied by law students for next one hundred years.

Update: Dahlia Lithwick has observations on the Scalia recusal and offeres the conventional opinion that the decision will be a four/four split. All things considered, I am going to going to go with the opinion of the attorney who will be arguing the case against a pro se litigant. Anyhow, I think Rehnquist and Thomas are a lock for reversal. Kennedy and O'Connor have recognized the concept of ceremonial deism. (Hopefully, there is no ukaze from the Dutchy of Grand Fenwick to provide O'Connor with international authority to change her mind. Souter is the swing, but should be fairly conservative here. Ginsburg and Breyer obviously swing the other way.

Let's hope.

R.I.P.

Heinleinblog reports that science fiction author Hal Clement has passed away.

Review of Clear and Convincing Evidence Standard

Ironically, I'm going into an evidentiary hearing tomorrow on an inter vivos gift which predated the death of the gifter (donor). The case law (circa 1955) is that such a gift must be proven by a "clear and convincing evidence." This probably isn't the real legal standard because there has been a series of cases in diverse cases (e.g., fraud) which have recharacterized the standard of proof as being "preponderance of the evidence." (Briefly, the modern view is that prepondeance of the evidence applies to virtually everything that doesn't have a statutory directive to the contrary. Although I may be surprised tomorrow to find that the judge applies the wrong standard.)

Nonetheless, relative to the "23" judges who have looked at the Schiavo case the reviewing standard probably is something like:

The 'clear and convincing evidence' rule is one for the guidance of the trial court and all that is required on appeal is that the finding finds substantial support in the evidence. Viner v. Untrecht, 26 Cal.2d 261, 267, 158 P.2d 3; Stromerson v. Averill, 22 Cal.2d 808, 815, 141 P.2d 732.

In re Raphael's Estate 115 Cal.App.2d 525, *530, 252 P.2d 979, **982 (Cal.App. 1 Dist.1953)

In other words, it is a "substantial evidence" standard, which means that once the trial court makes a decision, the appellate court's objective is to find a basis for affirming the decision ceteris paribus.

So, for anyone who wants to trot out all the judges who have decided in favor of Michael Shiavo's position, realize that the project of appellate courts is to find reasons to affirm the trial cout's decision. (Aside, of course, from Florida trial court decisions favoring Republicans during the 2000 election, in which case a completely different standard of review is applied. (I know, cheap shot.))

Medical Blogs

Odd, but the entire world of medical bloggers has entirely escaped my attention. I don't think my vasty link list contains a single blog by a physician.

In any event, check out this blog by Doctor Bradley, the name itself suggest a warranty of quality.

Check out this site for a nice collection of reads, including, ahem, your's truly.The Watcher's Council.

The ever mysterious, ever industrious Anna is back with her little digital camera. She went deep cover at the Stalinist front protests this weekend and has the photos to prove it. Check them out.