Friday, November 13, 2009

Confederates vs. al-Qaida

There is an irony to the decision of the Obama administration to try Khalid Sheikh Mohammed and four other co-conspirators in a civilian court. Have you ever heard President Obama compared to Abraham Lincoln? You've heard the whole "both are skinny lawyers from Illinois who reached the White House with slender resumes" line?

Well, John Wilkes Booth and the others involved in Lincoln's assassination were tried by a military tribunal, even though the crime occurred in the United States and in the absence of a formal declaration of war. Or ANY war, for that matter, as the Civil War had ended a few days prior to the slaying.

The law school of the University of Missouri at Kansas City has significant details on its Famous Trials website:

"Secretary of War Edwin Stanton favored a quick military trial and execution. According to Secretary of Navy Gideon Welles, who favored trial in a civilian court, Stanton "said it was intention that the criminals should be tried and executed before President Lincoln was buried." (Lincoln was buried on May 4, before the start of the conspiracy trial.) Edward Bates, Lincoln's former attorney general, was among those objecting to a military trial, believing such an approach to be unconstitutional. Understanding the use of a military commission to try civilians to be controversial, President Johnson requested Attorney General James Speed to prepare an opinion on the legality of such a trial. Not surprisingly, Speed concluded in his opinion that use of a military court would be proper. Speed reasoned that an attack on the commander-in-chief before the full cessation of the rebellion constituted an act of war against the United States, making the War Department the appropriate body to control the proceedings."

Monday, November 9, 2009

Mistrust of elective bodies: nothing new here

From page 369 of Gordon Wood's The Creation of the American Republic: 1776-1787 (1969):

"The legislatures, it was repeatedly claimed, were becoming simply the instruments and victims of parties and private combinations, puppets in the hands of narrow-minded, designing men."

Wood is referring to conditions in the 1780s. But isn't it striking how similar this sounds to criticisms we hear of Congress today?

Monday, November 2, 2009

Speaking in code

Say, remember during last year's presidential election, when John McCain and Sarah Palin referred to Barack Obama as "socialist," how some protested, exclaiming that "socialist" was a code word for "black"?

Well I notice that in the Atlanta mayoral race that Kasim Reed has run commercials calling front runner Mary Norwood "a Republican."

This raises the question: Is "Republican" a code word for "white"?

Just asking.

Monday, October 26, 2009

In case of death, resignation, or inability

Thanks to Article II of the Constitution, somewhat modified by the Twenty-Fifth Amendment, we Americans have orderly transition if the President dies or is incapacitated. The Vice President would in that instance take over the Oval Office. The Constitution also mandates that Congress legislate who is next in line if the Vice President also dies or suffers some incurable dementia. And that Congress did, with the currently line of succession specified in the United States Code, 3USC19 (2007). After the Vice President, the Speaker of the House is next in line, with the President pro tempore of the Senate coming in after that. If we really have a run of bad luck, with our leaders dropping like the bad guys in Indiana Jones movies, the line of succession goes:

"Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security." 3USC19(d)(1).

It seems impressive that we've actually got it worked out to eighteen people in line for the presidency until you realize what the British have with their line of succession to the throne.

So if some vermin shoots President Obama, Joe Biden takes over. If he's rubbed out at the same time, we get our first woman President. Robert Byrd becomes commander in chief if Nancy Pelosi meets her maker in the same tragedy taking Obama and Biden. And then you have a bunch of men and women nominated by Obama and confirmed by a Senate where the Democrats have a majority.

Remember this when you read stupid comments like this one:

“The Republican Party is now a mentally ill group of people who want nothing more than to destroy Obama’s first term no matter how much the country needs his policies. I despise your party’s activities and the hatred you spew on Fox and other sounding boards for the insurance companies. Please don’t you dare get him killed, which is the underlying goal of you right wing nuts.”

An underlying goal to get Obama killed? One would think a reporter would know better. Apparently John Guerra thinks the definition of a right-winger is somebody who wants Joe Biden to be President.

Friday, October 9, 2009

The President gets a big honor

Barack Obama has won the Nobel Peace Prize:

"OSLO -- President Barack Obama won the 2009 Nobel Peace Prize on Friday for "his extraordinary efforts to strengthen international diplomacy and cooperation between peoples," the Norwegian Nobel Committee said, citing his outreach to the Muslim world and attempts to curb nuclear proliferation.
The stunning choice made Obama the third sitting U.S. president to win the Nobel Peace Prize and shocked Nobel observers because Obama took office less than two weeks before the Feb. 1 nomination deadline."

So the boys in Oslo gave him the prize for work he'd done as President in his first eleven days? I live in Atlanta, and I do hope you will all visit this wonderful city. When you do, please visit the Martin Luther King National Historic Site. Be sure to sign up at the desk for the tour of Dr. King's boyhood home. You might want to stop by the old firehouse, now a bookstore, and pick up a copy of a collection of his speeches, which inspired millions. Stroll across the street to the Ebenezer Baptist Church where Dr. King and his father preached. In other words, get the bad taste of today out of your mouth by learning about a man who deserved the Nobel Peace Prize when it was awarded to him.

In my humble opinion, giving Barack Obama the Nobel Peace Prize now is like major league baseball giving a batting title to Mario Mendoza.

Tuesday, October 6, 2009

Due process and Megyn Kelly's baby

There are two kinds of provisions in the United States Constitution. One is the kind nobody in their right mind could argue about. I don't care if you are liberal, conservative, Republican, Democrat, a Steelers fan or a Cowboys fan--there is no argument what is meant by each state having two senators.

Then there is the other kind of provision. That's the stuff that gets argued about because obviously the thing described is subject to interpretation.

A great example of the second kind of provision is the Due Process Clause. The Fifth Amendment, in part, assures us that "No person shall be... deprived of life, liberty, or property, without due process of law." That only applies to the federal government, but right after the Civil War, Section 1 of the Fourteenth Amendment made it clear that "No State shall... deprive any person of life, liberty, or property, without due process of law."

Okay, fine. There's just one little problem: what the heck is due process anyway?

One of my favorite comments on the matter--and one that has wound up being cited in numerous treatises and court cases--was made by Supreme Court Justice Benjamin Cardozo in the 1934 case of Snyder v. Massachusetts, 291 U.S. 97. Due process, as Cardozo defined it, is "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder at 105).

A notable example of a citation of Cardozo's concept of due process came in Justice Rehnquist's dissent in Roe v. Wade, 410 U.S. 113 (1973). Opined the future chief justice:

"The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe." (Roe at 174).

The Roe majority had, you see, based it's argument that a woman has a right to an abortion on the due process clause of the Fourteenth Amendment.

But here is the question that was suggested to me by Cardozo's concept. Just how long does it take for some principle of justice to be so rooted in the traditions and conscience of our people as to be ranked as fundamental?

I think it can be a relatively short span of time. That was suggested to me by the result of another case, also involving a pregnant woman, the year after Roe was decided.

In Cleveland Board of Education v. Lafleur, 414 U.S. 632 (1974), the Supreme Court struck down requirements of local public school boards that a pregnant teacher go on unpaid leave several months before her baby was due. That, said the majority, was inconsistent with the Due Process Clause of the Fourteenth Amendment. Once again, Justice Rehnquist dissented; this time without citing Snyder.

It seems to me that in 1974 it might have been a reach to hold that Cardozo's due process--something so rooted in our traditions and conscience as to be fundamental--included a right of a woman on a government payroll to continue working right up until she goes into labor. But you know what? Here we are just three and a half decades later and now I think you can argue that this sort of thing IS "rooted" and "fundamental." This occurred to me recently when Megyn Kelly of Fox News-who ironically enough is a lawyer--gave birth to a bouncing baby boy. From the linked note:

"Kelly anchored her show yesterday [the day before she gave birth], even delivering a segment on the top 5 things not to say to a pregnant woman. And she even did her regular segment on 'The O'Reilly Factor' last night."

Here's the top five things not to say, if you're interested. My point is this: do you even bat an eyelash now when you hear that a woman worked right up until the day before she went into labor? I'll bet you don't. But if you're old enough to remember that far back, I'll also bet the thought of a woman doing this back in 1974 was somewhat shocking to you. And when Snyder was decided, forty years before Lafleur, the very idea that "due process" protected a right of woman to work up until she dropped the child, was absolutely unthinkable.

The Lafleur decision, which no doubt caused a lot of people who came of age in the fifties or earlier to gasp, now seems pretty darn tame. Small wonder. Pregnant women toiling until mere hours before the water breaks has, in just a couple of decades, become so rooted in our traditions and conscience as to be fundamental.

Sunday, September 27, 2009

Dollars then and now

I don't know about you, but when I see a graph of the history of the stock market's performance over, say, fifty years, and there is a caption declaring that the data is "adjusted for inflation" it really doesn't make much of an impression on me. But when I read something in a history book about money value or supply that is specific and that I can relate to the present, that can really set my head spinning.

So it was when I encountered this line on page 222 of Brian McGinty's Lincoln and the Court (2008): "When [Salmon] Chase began his work [as Secretary of]... the Treasury Department, the government had only $3 million on hand and debts that totaled almost $65 million."

That was in 1861, the Civil War was about to begin. The idea of the United States government having only three million bucks--how to relate that to our time? Well look at it this way. According to the U.S. Census Bureau my county, DeKalb County, Georgia is the 75th largest county in the nation. That's big, but not a mega-county like Los Angeles County or Cook County, Illinois. And the county budget adopted for 2008 was over 635 million dollars.

So the annual budget for a large, but not massive county is over 211 times the amount of cash that the entire United States of America had in the treasury 148 years ago. The DeKalb budget is also over nine times higher than the debts the U.S. owed.

We can go a step further. The 2008 budget just for parks and libraries in DeKalb County, the nation's 75th largest county was 35 million dollars, or nearly twelve times the amount of money the U.S. Treasury had on hand in 1861.

That's a lot more fines collected on overdue books. A dollar just ain't what it used to be.