August 11, 2004


Okay, everybody remember Miguel Estrada? He was an immigrant from Honduras nominated by Bush to the DC Circuit Court of Appeals - considered a stepping stone to the Supreme Court. Estrada was blocked by Senate Democrats for political reasons, but they claimed he was not forthright in their answers. This was the catch-22 of judicial politicsa, however.

More on that in a second, but first Chuck Schumer. Schumer misleadingly said that Estrada failed to answers questions put to him, but the interest of Senator Schumer in the nomination is clear in that, unlike many of his colleagues, he failed to ask any written advance questions. He didn't ask questions because he didn't care and he knew Estrada would be unable to answer any questions.

The reason Estrada could not answer their questions is simple. The fifth canon of judicial ethics prohibits Justices from voicing their opinions on matters that might reasonably come before them. Scalia ran into this problem when he made statements on the pledge of allegiance case a few months or so before it came to the Court. He was very clear on what he thought, and so he recused himself. The part of the canon in question is thus:

"(1) A judge or judicial candidate shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which is being sought or held, except that discussion of an individual's judicial philosophy is appropriate if conducted in a manner which does not suggest to a reasonable person a probable decision on any particular case."

In other words, a Justice cannot answer the kinds of questions Senators ask. Politicians ask who's pro-life, who's pro-choice, who's this or that, where are you on guns, affirmative action, etc. If a Justice came up and declared herself to be pro-life, pro-gun and anti-affirmative action then she could not rule on those cases. Conversely, if she holds back then the Senators block her confirmation. It's the catch-22 of judicial politics.

This is why every sitting Supreme Court Justice refused to answer similar questions in their hearings. The pack of liars in the Senate conveniently forgot this point, of course. If the Justices and judges currently in the federal court system had answered these questions then they'd all have to recuse themselves or face ethics charges and impeachment. Such lies, the Senators blocked Estrada for political reasons and then blamed his silence. He answered tons of questions, especially advanced written ones, he simply could not compromise judicial ethics.

Of course, try to explain to Senators about ethics and you'll get blank stares or vacant nods. They especially wouldn't understand how shutting the hell up could ever be a good thing.

August 07, 2004

Hamdi v. Rumsfeld

SCOTUS Asserts Power To Allow Torture, Detainment
"Nobody Overrules The Constitution Without Our Acquiescence!" Justices Declare

Anyway, that's an exaggeration, but read the decision. It's total idiocy. The Court essentially found that it has the power of oversight on these matters, but that they aren't going to exercise that oversight in any meaningful way. They found a few things, specifically.

FIRST, the Court held that it had jurisdiction in these matters. That's normally quite routine, but in this case they were asserting that the judiciary had any jurisdiction in matters of overseas conflict and during war-time. Yes, apparently some people think the executive and legislative have full authority during such times of crisis and that the courts should just go their own merry little way. What's worse is the Fourth Circuit of Appeals actually found that separation of powers forced them to abstain from the issue. That's like a Victorian woman saying to her husband she knows nothing of politics or business or other such rowdy affairs, and she glides off gracefully to attend to her appearance. Total garbage.

The SCOTUS has jurisdiction because the Constitution applies. If the Constitution didn't apply (or through act of Congress pursuant to the Constitution 3.2.2) then the courts would not have jurisdiction. It does, so they did. End of freakin' story. Imagine if the President or judges could just decide they were above impeachment, or the Congress decided that it didn't need 2/3rds to override a veto. We have a vital system of checks and balances - and if anything matters of war, firearms, detainment and torture are MORE important for judicial oversight, not less.

This part of the case was found 8-1, everybody but Thomas thought we had a role. I thought Thomas was supposed to be a more libertarian Justice, but apparently the issue of LIBERTY didn't come up that day.

SECOND, a plurality found that Congress had authorized the detainment when it issued its resolution authorizing force in September, 2001. While they found that the executive alone cannot authorize the detainment, the Congress can. Further, although indefinite interrogation is not allowed, they did allow indefinite detention. Indefinite detention is allowed. As long as active fighting continues in Afghanistan, Hamdi can be detained. Considering the Russians spent about a decade fighting the Afghans, and the penchant for the Afghans to go guerrilla in the mountains, we could be looking at a long process. Sixty years after World War II we're still in Germany.

Of course, even if it only lasted a few more months, it'd still be unconstitutional. He's an American citizen, Muslim or not, Arab or not, and he has rights.

The most absurd part of the ruling, of course, is that O'Connor (and Rehnquist, Kennedy and Breyer) ruled that Hamdi had the right to appeal his status but effectively ignored two facts: a) he was denied counsel and held incommunicado for months or years after his detainment and b) the government NEVER released the full criteria for being declared an enemy combatant.

What was interesting is that: Thomas went off into anti-Constitution land; Souter and Ginsburg found that the detainment was unlawful and Hamdi should be released to a normal criminal process; O'Connor, Rehnquist, Kennedy and Breyer found that they had jurisdiction but then refused to do anything with it; Scalia and Stevens found that the detentions were unconstitutional without Congressional suspension of habeas corpus. The most rightward and most leftward (except maybe Ginsburg) teamed up in the strongest dissent. Very interesting to see Scalia and Stevens on the same side of any decision, especially such a huge issue.

Back on subject, now. This is why the decision was poorly decided:

- How can he challenge a status that is never made clear to him? The charges aren't even being made clear to him if they don't list all of the acts or crimes he committed to be declared an enemy combatant.

- He cannot be declared an enemy combatant and held in detention WITHOUT TRIAL, that fundamentally violates his 5th and 14th Amendment rights. The enemy combatant classification is unlawful, he has to be tried before it can affect his liberty (through detention).

- An American citizen cannot be held incommunicado for months or years WITHOUT BEING CHARGED and without an attorney.

Basically just trial rights. They have to make clear the charges, allow him access to his attorney, and allow him a speedy, public trial by an impartial jury. Basic trial protections, all denied to him. The Supreme Court and White House are side-stepping the issue, claiming that he's an enemy combatant so they can hold onto him until the end of hostilities. In that case, he'd have to go to trial to determine if he is in fact an enemy combatant.

Rather than going to court and losing, they're holding Hamdi indefinitely. That's wrong, that's unconstitutional, that's un-free. They should release him into a normal prison under normal circumstances, and go through the normal indictment and trial processes. He has rights, and they must be respected.

August 05, 2004

The Distinction Between Natural Rights and Civil Rights

Americans hear the phrase civil rights all the time, and we have a vague conception of what it means, mostly informed by the vernacular use. The vernacular use is most commonly related to Jim Crow, black people and voting. That's how we think of the phrase civil rights, as the fight by MLK and others to recognize the personhood and worth of black people - and therefore their rights to the same privileges and immunities as other Americans. When we hear the phrase civil liberties, we think of school prayer, the Ten Commandments, and the ACLU.

While these are both apt uses of the terms, neither is complete. So let's figure out just what civil rights are.

Rights are legal constructions -often constitutionally guaranteed devices- to secure the liberty of individuals. A right is something a person or entity may do regardless of the opinions or interferences of others. Liberty is the general concept "one can do what one wishes." A right is the specific, usually formal guarantee of liberty. So we have the liberty to speak our mind and express our opinions, and therefore we have the first amendment right to free speech. For practical purposes, the words right, liberty and freedom are essentially interchangeable - at least in this country.

What isn't interchangeable is the adjective; there is a big difference between civil rights and natural rights. A civil rights exists in civil society, thus the prefix. A natural right exists in the state of nature, which pre-exists civil society. The state of nature is a hypothetical concept used prominently by Enlightenment thinkers in Europe and the US in order to separate themselves from the current regimes and envision the ideal political order. Simply put, the state of nature doesn't hve to exist, it's a theoretical concept to test human nature and to understand the purpose and workings of government. It's actually a wonderful concept that's out of practice today - largely because the classical liberals were proven correct and there's little need for political philosophers to challenge their larger ideas.

So what's important here is the idea of stemming from government and pre-existing government. Civil rights comes from government, natural rights pre-exist government. This is hard for many people to grasp, who see rights as legal protections (and sometimes obstacles) to work around. They don't understand how rights can exist without a government to enforce them. Simple. They exist, whether or not you recognize them. Just as it's wrong to lie even if it's not enforceable by law, it's wrong to violate a natural right even if it's not enforceable by law. This very basic concept escapes many people (usually authoritarians, surprise) so anyone who gets it should be happy.

Most civil rights in America are based on natural rights, but more and more there's talk of various other, newer rights being adopted - many of which are NOT natural rights.

Free health care is not a natural right, because it could not exist without a state to organize it. What would the equivalent be in the state of nature? It would be the right to walk up to anybody and expect their money or their services as doctors. Since very few people are socialists or communists, and even socialists aren't happy with that thought, this is not what people mean. What they do mean is arranging for the government to pay for health care. It's not a natural right except perhaps in a literally communist vision, anything short of that and it's simply a civil right. To me, this means it's artificial, it's not a real, ethical-moral right, it's just another welfare program. The only difference is a bunch of lazy idiots and anti-market, anti-property types don't know what a right is.

Voting is also not a natural right, since there is no government to elect in the state of nature. It is, however, an extremely important CIVIL right, but we should be clear that it's not a natural right.

Now, appropriately, what IS a natural right? Well, anything! Okay, not anything, but anything that does not violate the rights of others, so anything not initiating force or fraud on others is literally your natural liberty. So in this sense, you have a right to anything from free speech to drinking a warm Diet Coke. To be a natural right, it must be consensual toward others. This does not mean it's individual, since some of the most important rights are interpersonal: commerce, speech, relationships, etc. These are all based on the consent of others. Voting and mandatory welfare are not dependent on the consent of others - you can vote and receive welfare without the consent of your fellow voters or those who pay taxes to your program.

So how can we turn this newfound knowledge into policy? Simple: enforce the Ninth Amendment.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

They included the Ninth because of arguments at the time that including a bill of rights would suggest that unlisted rights weren't important. Those opposed to a bill of rights said there should be none at all because 1) we could never list all the rights, and 2) listing some would be like an open door to infringe the unlisted ones. So the supporters came up with this simple line to have a bill of rights without weakening unlisted rights. Unfortunately, it did happen that unlisted rights have been infringed. Of course, even the listed rights aren't ironclad in this legal system, but they do okay next to the unlisted ones.

How can we do the Framers' intent justice here? How can we listen to the Ninth Amendment? Step one is to reinstate the presumption of liberty - the freedom-related counterpart the presumption of innocence. Just as we assume a person is innocent until proven guilty, we should assume that a law or act of government is inappropriate until explicitly authorized by the Constitution. The presumption of liberty is assuming that individuals are free to do what they want unless a law is constitutionally established, and assuming that all laws are unconstitutional until proven otherwise.

Step two is to pass a new constitutional amendment, a Liberty Amendment, codifying explicitly what the Framers wrote implicitly:

"The right of citizens of the United States, who are eighteen years of age or older, to perform or refuse to perform any action shall not be denied or abridged by the United States or by any State, except in cases of force, fraud or treason, and notwithstanding the legally assumed obligations of contracts. This article shall not apply to employees, officers, soldiers or detainees of the United States or the several states."

I'm still working on the wordage, but I think it's a pretty good libertarian amendment. I tried to include the bigger exemptions, but it has some problems - like the fact that enforcing the 16th Amendment would be unconstitutional. :) Anyway, this is the full recognition of our natural rights. Before that, the least we can do is return to the presumption of liberty and the presumption of unconstitutionality.

August 04, 2004

Badnarik Ad Hitting NM

The Badnarik Presidential campaign is releasing $65,500 worth of ad buys for New Mexico. I've seen the ad, it's pretty good, hits the right notes on war, the draft and so forth. It points out Bush is the war President and Kerry wants to send more troops to Iraq. Then Mike says he'll stop the 'coming' draft (just how likely it is to come is debateable, but a great plank nonetheless) and he wants to be the peace candidate.

I think this ad will appeal to indies who want a fresh viewpoint, independent-minded Democrats who want a non-Kerry Bush alternative (granted: not a lot of those) and Republicans upset with Bush over the war. Personally, I'm a little mixed, since I think arresting Saddam was a great thing. But we did our job, so I'm pretty open to a different policy now, assuming it's intelligent and ethical.

Much more importantly, Badnarik is 1) pushing his strategy for 'television, television and television,' and 2) doing it in a swing state like New Mexico, where a few hundred votes took the victory for Gore. If only a thousand people vote Badnarik based on this ad it could realistically swing the state. Badnarik would hold the balance of votes. If the whole Electoral College comes down to NM then he could affect the election - although granted, NM is a little small to throw the whole show.
Understanding -And Solving- Immigration

Everybody seems to be uncertain about immigration, it's a staple cultural issue, and the question on the mainstream's mind is, how do we curtail illegal immigration and the problems associated with it?

The answer is simple, but first I'll go through a brief explanation. Why do immigrants come here? Aside from a small minority that wishes us ill and dislikes our country, most want jobs, prosperity and/or freedom. It's more attractive to live here than other countries just like it's more attractive to drive BMW or Cadillac than other cars. People who can afford it buy the nice car, people who can make the trip come to America. Obviously country loyalty is much more powerful than car-brand loyalty, but then living in a great country offers a lot more benefits than driving a great car.

People come here for jobs, and when jobs don't go to their country fast enough, they come here for them. Many jobs cannot be exported because they must be performed here, such as unskilled agricultural work or the hotel/hospitality industry. Other jobs could be done elsewhere but aren't for a number of reasons. We also have what many people (myself strenuously included) consider one of or the freest country in the world. So Mexicans, Haitians, Cubans, and whatever-ans come here for jobs, prosperity and liberty.

Now, think about economics. What happens when you ban a product like alcohol, prostitution or drugs? A black market arises to provide that service. This is basic economics, black markets are a function of supply and demand. In basic socio-economic policy, we know that black markets usually occur in conjunction with other crimes, and of course the Mafia often comes in.

So apply the same general thinking to immigration policy. People really want to come, in some cases have dire needs or strong desires, and then we close it down or restrict the process. So what happens should be obvious: the black market resurfaces, this time for immigration. They go around the checkpoints, take boats in, hide in trucks and vans, and hire people to smuggle them in. The black market surfaces because there's outrageous demand to come here.

Now the question is, can we accept legalization and eliminating the black market or is this not a compromise issue? Slavery, murder-for-hire, things of this nature could not be accepted and so we cannot legalize the black market away - the black market is bad but far worse is accepting these horrible evils against human liberty. But I wouldn't put drugs, alcohol and prostitution there. It's better to open this up, move these industries and products into the light of day, which will sweep the criminals away and allow each of us to approach these products more fairly.

For immigration, unless you simply don't want people coming in at all, there's little reason to maintain such a restrictive policy, as analysis will show. Allowing in way more immigrants would direct the immigrants to designated border crossing points. This means they won't die in the desert, they won't have to pay seedy people to smuggle them in, we don't have to spend billions on patrols and fences, and we can actually screen all these people for crimes and so forth.

So think about it. Legalizing immigration (raising the levels for immigrants to come in, so legalizing the levels of immigration we see) would allow immigrants to come through normal, legal channels. No need for military border patrols, INS raids, massive police sweeps, and most importantly, normalization and respect for immigrant community, especially Hispanics.

Government crackdowns are actually hurting the integration efforts of Hispanic immigrants. They have a large community where they can hide, people who speak the same language, worship in familiar ways, and have familiar behaviors. The community as a whole sees the aggressive methods and near-bigotry of many police actions, and reacts to the assault. The result is that police and non-Hispanics (especially white Anglos) are often viewed with suspicion. Going outside the community can be more dangerous and result in deportation. It creates a level of distrust, a social disconnect that encourages Hispanic immigrants to remain un-integrated out of protection. Our own policies -often argued from the socio-cultural perspective- are encouraging social disunity and holding back the melting pot inclinations of immigrants here.

Allowing immigrants to proceed without fear that we'll arrest, harass or deport them allows them to join the community without additional fears and distrust. Removing our fear of immigration will hasten the melting pot effect; reacting with negativity and fear only impedes mutual assimilation of culture and creates a rift between cultures.

Further, if immigrants from Mexico and south of us went to specific checkpoints, there'd be much less to patrol in unguarded border areas. They wouldn't hide because they could proudly and legally go the normal route, meet relatives, begin employment and assimilation immediately. This leaves our border patrols free to pursue rogues, criminals and terrorists seeking to do us harm. As a side-point, ending the drug war would free up- billions of dollars in man-hours and equipment so we could watch for terrorists and attackers instead.

What happens if a Mexican or Haitian gets in? Oh no, he gets a job mopping floors or picking crops. What happens if a couple pounds of cocaine get across the border? A couple guys in LA and NYC get high, maybe scream a little and get nosebleeds. Oh horror.

Now what if a nuclear terrorist motors across a border lake from Canada because the INS was trying to arrest Mexicans in the desert? It could be a horrible tragedy. It simply makes sense to focus on that. An immigrant comes for work, for a job, to provide Americans with his services and labor, or to see his family - or at worst to be lazy and sit on welfare. A terrorist coming through wants to kill us and destroy our happiness, erase our prosperity, strangle our way of life. The immigrant is not an enemy; he stands with us on the side of freedom and progress. We should let them in, they are on our side. We should just let the border patrol focus on terrorists and criminals, keep them out.

We should normalize and legalize immigration. It makes the most sense to do so, whether one is a mainstream centrist, a leftist, a libertarian, or even a conservative.