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What If They’re Wrong?

Art Smith July 2nd, 2008

I am surprised I didn’t see more blogs lit up over this today (Allahpundit over at Hot Air did hit on it,Justice In Question though).

The Supreme Court was wrong.

That is, Anthony Kennedy, who wrote the majority opinion in Kennedy v. Louisiana, was wrong.  If you recall, Kennedy wrote in his opinion (discussed here last week) that

Thirty-seven jurisdictions—36 States plus the Federal Government— currently impose capital punishment, but only six States authorize it for child rape.

Kennedy then used this fact to establish that Congress’ lack of action to enact capital punishment for child rape reflected the country’s growing desire to treat child rapists more kindly.  I’m still gagging over that one.

In Wednesday’s New York Times, we find that Kennedy, along with both legal teams on the case, missed some critical information.  Federal Military code does cover child rape as a capital crime:

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

The blog referenced here is run by Colonel Dwight Sullivan of the Marine Corps Reserve.  His post on his blog, CAAFlog, provides more specific details.  Here’s the important part:

But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.

Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that “[u]ntil the President otherwise provides pursuant to” UCMJ article 56, “the punishment which a court-martial may direct for an offense under” the amended UCMJ article 120 “may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.”

Amusingly or not, it appears that the court and the legal teams were not only unaware of the law, but some had even research military law and not found this legislation.  That’s kind of scary, if you ask me.

The state of Louisiana has 25 days to petition the court to reconsider its decision.  I’m guessing if Louisiana petitions, the court won’t bother.  Admitting that this kind of oversight is sufficient to reconsider will set a precedent that could overwhelm the court with spurious requests.

Of course, that throws the federal statute itself into question as well.

Ever notice the more our societies “evolve” (Kennedy’s word, by the way), the worse it seems to get?  More proof that Darwin didn’t know what he was talking about either.

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Supreme Court: Capital Punishment Old-fashioned

Art Smith June 25th, 2008

Court Scales

The court is wrong.

As Lyle observes, the court has been progressively narrowing the conditions under which the death penalty can be used. By itself, this is a frustrating fact as the court appears to be referencing reasons with less basis in law and more basis in their feelings. Lyle observes:

…the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote…

But more disturbing is the fact that the court has taken the most offensive, the most evil crime next to murder, and essentially issued a free pass. If a little girl can be gruesomely raped by an adult and the death penalty is too “cruel and unusual”, then where is the hope of justice?

Just as important is the fact that the court continues to dig itself further and further into countering the legitimate efforts of state legislatures and the US Congress. Although there are clearly cases where this is a necessary role for the court, they have come close to making this a full-time job.

Here’s the crux of court’s decision with respect to the 8th amendment (to the US Constitution):

Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death. Pp. 8–36.

1. The Amendment’s Cruel and Unusual Punishment Clause “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101. The standard for extreme cruelty “itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U. S. 238, 382. Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ”

No JusticeSo, the point is, as the Supreme Court’s interpretation of society’s collective standards change, then the meaning of the law changes.

There’s something deeply wrong when the court becomes so self-deluded in its own divine power that it believes it knows what society, that is the people, want(s) more than the actual elected representatives of the people. But there it is: the court believes it actually knows better. This is why it is so important that we have constructionist judges on the court instead of this generation of activist jurists.

Obama, for his part, opposes the court’s decision. This is also unbelievable. Eliminating the death penalty is a traditional liberal position, so this was a surprise. I’m not sure what’s behind this aside from his attempt to “reinvent himself”.

Sister Toldjah, Stop the ACLU, Hot Air, and a host of other blogs are talking about this.

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The Signs of Decline

Art Smith May 17th, 2008

I am not going to argue the merits of the case or the stretched use of precedence. And it is far too easy to poke holes at the California Supreme Court.

But instead I ask one single question. Does anyone not see this as a sign of the on-going decline of our society?

I’m not intending to be alarmist about this, and of course I’m going to be lumped with the extremist religious wackos that promote a “God hates the world” message (one that I vehemently oppose).

I support the rights of all to life, liberty and happiness, even for those who carry on privately in sexual or other conduct that is repulsive to me.

But for the government to establish a new order to marriage as if it were something that can be so carelessly rearranged into whatever structure suits the current group of people who would like behave differently for whatever reason, is wrong and now opens the door to family structures that are currently illegal and unthinkable (as this was a few decades ago).  It is unfortunate, indeed symptomatic of the decline, and is not the beginning.  Uncontrolled pornography, no-fault divorce, abortion on demand, licensed teenage sex and unsanctioned unions (”living together)  were predecessors to this demise.

It is also not the end.  Legal polygamy, time-limit marriage contracts, elimination of minimum age requirements for marriage, legal bestiality, and marriage between species are yet to come… and who knows what else.

Since the path began it has been hard to slow the decline.  And impossible to stop, it seems.  Worse yet is that more and more Americans are being convinced every day that gay marriage is not only appropriate, but “whatever you please” is appropriate.  This will extend itself to other areas, and has already influenced the decline in integrity, increased lawlessness and a growing sense of discontent with any governmental controls to maintain a semblance of order in our society.  Anarchy is peering its ugly head out of the shadows and we cannot allow it in.  Indeed, those that would cut off religion and discard it as meaningless have no basis for moral influence and in many cases openly advocate disbanding our laws… or any laws.

Does anyone else see this coming?

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If The Government Is Defective, Can We Get Our Money Back?

Art Smith April 13th, 2008

You should probably expect to see the following happen in the US within the next few years.

In Great Britain, a high court justice has ruled that British Human Rights laws apply to soldiers while in combat, according to a report heard on Friday’s BBC NewsPod Podcast. While this may sound relatively benign on the surface, the intent and impact of this ruling is to hold the Ministry of Defense (MoD) accountable for situations where soldiers are injured or killed due to the failure of defective equipment, or due to insufficient supplies in their kit.

Mr Justice Lawrence Collins, LL.D., FBA made the ruling during a request for military inquest guidelines in the case of the death of a Scottish soldier in Iraq who died of heatstroke.

Mr Justice Collins said sending soldiers into action without proper kit could breach human rights. Ministers are appealing against the ruling.

The court also ruled families of those killed in conflict should get legal aid and access to military documents.

For example, sending a soldier out on patrol with defective equipment might be a breach of Article 2 of the Human Rights Act - the right to life, which in the event of death requires an independent inquiry.

Many believe the judgement will make it easier for the families of those injured or killed in Iraq and Afghanistan to claim for compensation.

We could grant that the court is attempting to apply the Human Rights Act, HRA passed into British law in 1998, in an appropriate manner. It can be very concerning, however, to attempt to apply civil laws of this type into the realm of military action. Though one could applaud the attempt to help families gain access to information and appropriate compensation for loss of life, it seems that there are more appropriate and direct avenues to take in reaching this by passing laws that provide explicit clarification on these points. Further, this kind of application of the HRA has the potential to lead to much more obscure and wild applications that will make it nearly impossible to reasonably field an armed military exercise. And yet we’ve survived hundreds of years without this level of “protection”. While we are committed to protecting the lives, honor, and respect of those that serve us, and supporting them in every way possible, we must also be careful not to obscure or manipulate the laws and rights that they fight so bravely to protect.

For many years now, war itself has provided its own deterrent by being deadly, costly, and painful to wage. Not to mention more and more politically unpopular. Judgments of this sort, however, may make it nearly impossible for the most civilized societies to protect their own freedoms while those that would destroy us are not so encumbered.

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DSM Register: Spitzer’s Privacy Invaded by Feds

Art Smith March 15th, 2008

There is little need to retrace the Eliot Spitzer story except to say: he got caught with a prostitute and apparently was using a form of structuring (attempting to get around federal bank reporting rules) in an attempt to hide the source and/or use of funds.  Although a lot of hay is being made about him being with a prostitute when he had set himself up as the hero against prostitution, the real issues here are going to center around how he was hiding money, and more importantly, why.  There were almost certainly laws broken here, and we suspect there is more to come.

However, the Des Moines Register (a substantively liberal media outlet) expressed an opinion today that this whole tawdry affair should never have seen the light of day, and would not have if the current federal banking laws, in place to prevent the laundering of funds meant to support terrorists or organized crime, did not allow for independent investigation by the FBI without judicial oversight.  The Register believes our privacy is at stake.

The Register trivializes Spitzer’s actions in an effort to make a point that has merit, but outside the discourse on Spitzer.  The Register’s focus makes a broad and unjustifiable assumption that we have a basic right to “privacy”, which it would seem to define as “You have the right to do whatever you want without anyone knowing about it.”  Unless of course you have an appropriate court order (search warrant or subpoena).

Of course, the Register is right on the point of court oversight, accountability and restraint being necessary to ensure we don’t create our own Gestapo in the 21st century.  We would challenge the idea of an unbounded right of privacy. As a nation we fretted over this issue years ago, and probably stopped sometime in late 2001.  For good reason.

There will always be situations that require immediate action, and that’s where we need flexibility to act, and yet maintain accountability.  Private conversations or acts of conspiracy have no legitimate right of privacy.  And truly, this is part of why we have courts… to sort out the details, often after the fact.  Random acts of invasion by local, state or federal police are unacceptable, and warrant-less actions need to be the exception with careful judicial review.  Charles Grassley (as noted by the Register Opinion) has been diligent in seeking to ensure the FBI is not working outside its authority.  However, there should be a better process in place so that US Senators don’t have to spend their time on tasks like this.  Court oversight is a good idea, but it requires a solid process that ensures all cases that should be reviewed are automatically reviewed.  What we don’t need is a system that only works if we have judges, congressmen or journalists initiating the work.

And all of that is fine, but it doesn’t make it okay for Spitzer to have done what he did, and it should be acceptable that there was discovery during a legitimate investigation of suspicious banking activity.  Even judicial oversight should allow for that.  No one is above the law, and no one can be above suspicion either.  Even a Governor of New York could be funding terrorists.  I’m still not sure we don’t have any US Senators doing that.

So, we agree that judicial oversight needs to be strengthened.  We just don’t agree that Spitzer’s situation is the way to make a case for that.

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Follow-up on DeKalb Shootings

Art Smith February 16th, 2008

I’m still a little overwhelmed by the events of Valentine’s Day.

People died or were injured and should not have been. It never should have happened. As with any other shooting of this type, we will have days of analysis about the drugs that this young man stopped taking, about the easy availability of the weapons he used, and why stronger measures need to be put in place to limit the availability of these weapons from unstable members of the public.

What a bunch of nonsense.

I was hit with a surprisingly poignant question from my wife after the death toll was first announced:

Can I learn to fire a gun?

Wow. That hit me like a ton of bricks.

One thing about your friendly neighborhood Conservative Reader that you should know is that 25 years ago he converted from Liberalism. One of the vestiges of that old life is that we have never had a gun in our house (and really never thought I could hurt anyone no matter what they did to me) until a few years ago when the neighborhood rabbit population needed a little discouragement (in the form of a .177 air rifle). Even then, I treat the thing like poison. I will tell you that getting married (we’re on our 22nd year) changed my views on self-defense, but I’ve always felt that having a gun in the house was dangerous and unnecessary. One sentence from my wife has completely changed my perspective.

I know I’m not alone in this, and I’m struggling to figure out why today, in 2008, we think it’s better (as a society) to avoid violence and weapons. I know it wasn’t this way 100 years ago.

Then it occurred to me: the post-WWII social experiment to pacify America has failed.

What am I talking about?

I’m talking about a sincere and noble quest to make America the safest, most prosperous place in the world by building generations of people that are more and more intellectual, productive (at work), peaceful and leisure focused (outside of work) and having all that they could want or need, would allow society to live without fear of violence, economic collapse, or dramatic political change.This is really more a set of conclusions based on the observations of the world as I’ve lived the past 47 years. I am not thoroughly versed in the realities of the public policies, or philosophical discussions that may have led us here, and because of that, I will simply state my observations (and related opinions) but caution the reader that I’m not an expert in much of anything, so do the research to ensure you know the facts. I will endeavor to do so as well.

What I see is this:

  1. Any form of violence is considered inappropriate in our society by most… not always illegal, but treated with clear contempt. One example, I recall much of my mother’s family were boxing fans as I was growing up. Boxing is still legal, but those that are fans tend to be treated with the sort of appreciation given a loud cell-phone user in a French restaurant. Probably the only sport that still has some element of violence and yet enjoys wide-ranging support in the US is US Football. You don’t have to convince me about the medical issues with professional boxing, I get that. Bungy-jumping isn’t much safer.
  2. The right of parents to discipline their children physically is now severely controlled to the point that even the slightest physical contact is considered wrong and even the suspicion of child abuse (which I in no way condone) is grounds to lose your children. I can lean on no more than anecdotal evidence, but my experience tells me that if parents do not use (what I consider to be) appropriate physical discipline during the first few years of child-rearing, those children will have problems with obedience, appropriate behavior, performance, and dealing with stressful situations.
  3. The domestication of animals and the background of Darwinism and emotional attachment to animals has led to concepts of humane treatment that make it harder and harder for people to be comfortable being meat eaters, or game hunters. The wearing of real animal furs is generally considered anathema.
  4. Inappropriate behavior by children, even in it’s most subtle forms, is now elevated to the level of criminality. From the McGruff the Crime Dog’s Blog site: “Does someone tease you, call you names, leave you out, or spread rumors about you? You may have a bully.” Yes, you might, and I will concede that the site has some good suggestions for children, but it seems we’re also communicating that every little slight should be treated as an assault. The word “bully” at one time referred to people that used violence or threats of violence to force their way on others. Better, I think, to incorporate Tai Kwon Do into the PhysEd curriculum.
  5. The average person in our society is unable to resist someone else who attacks with any kind of weapon. My father grew up in New York City in the 30’s and 40’s. I would hazard to say that even today, if he were attacked by someone with a knife, he would stand a chance of disarming them, with only the skills he picked up on the streets of New York and at the YMCA (oh yeah, he was a boxer in those days, too). I would probably have less of a chance, but some because I’ve thought about what I could do.un-twisted-gun.jpg
  6. The picture to the right is of a statue that was a gift from Luxembourg to the United Nations in 1988. I appreciate the intended message… it sounds really nice. But unrealistic and unfortunately, too many believe that a war-free world and violence-free world are possible. No sale here.

So we are in a general state of thinking that guns are no longer necessary, and we should all just passively “get along”. The police and military will take care of protecting us.

As a result, most of us here in America live the lives of future victims. Unlike the man in the story I read at Sister Toldjah’s site this morning.

Although I am very concerned about the continued onslaught of the left upon our 2nd Amendment right to bear arms, I am even more concerned about a nation that is becoming progressively brainwashed into believing that the way to become safer is by taking weapons away from everyone (a less likely event than escorting all of the illegal immigrants out of the US) and to live lives of quiet safety. We’ve proved that this is impossible.

You are always going to have people that will try to kill others, and will have the means to do so. We need anti-victims. People that are willing to arm themselves adequately to protect themselves from the inevitable violence of others. This means hand-to-hand fighting training, the willingness to carry a weapon of some kind and be trained in it’s use, and a legal system that allows the carrying of concealed weapons.

I’m convinced this will not only reduce the number of future victims, but also the number of future incidents. There is nothing as effective as the deterrent of knowing, without a doubt, that others can and will stop you.

Getting back to my wife, if she is so strongly stirred by this event to express her own fear and a desire to do what she can to be an anti-victim, I will support her. And I will do everything I can to protect her.

What about you? Victim, or anti-victim?

I also recommend to you an excellent article written last year at the Michael Reidenbach site (I only just discovered this as I was finishing up this posting). It’s signed by “ST”, but I have no idea if it is Sister Toldjah or someone else entirely. However, it does express some similar thoughts at a more abstract level on this topic.

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Contest #3 Closed with No Winner

Art Smith February 2nd, 2008

As disappointing as it may be, we’re closing Contest #3 without a winner.

As you may recall, the question was:

Provide the textual portion of the US Constitution that describes the well-known concept of Judicial Review, which gives the Federal Judiciary the authority to determine the constitutionality of US or State laws. Then, please name the first Justice to implement Judicial Review in the United States.

John MarshallThis was a trick question, since the US Constitution does not expressly give the Judiciary Branch the power to review the constitutionality of laws. This power exists based solely on the precedent set the first time it was exercised by the Supreme Court in 1803 in the case of Marbury v. Madison. John Marshall (that’s him at the left) was the Chief Justice at that time, and wrote the decision (he also played a roll in the events that led to the case as well… can you say “conflict of interest”?). A couple of links providing details and comments around this topic are here and here. Some great background on this topic is found in The Patriot’s History of the United States by Larry Schweikart and Michael Patrick Allen. You can also find other information on the web using this Google search.

We will tee up a new context on Sunday.

Update:  Some text was missing for some reason, but is corrected now.

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Westboro - As Phake As You Can Get

Art Smith January 26th, 2008

My good buddy Bithead made passing mention yesterday of yet another of Westboro’s (the “church” from Topeka Hell) planned outings, this one to Heath Ledger’s funeral.  He rightfully calls them the “slugs” they are, but then says (to Westboro):

You’re in the business, in the end, of changing minds.

Sorry, my friend, they’re not in that business at all.  And it is about hate… that is, provoking others into hating them so much that people will make the unfortunate mistake of reacting to this group’s “right” of free speech with even the smallest physical violence.  And all it takes is a shove.  Or a punch.  Or a brawl.  Any way you look at it, they intentionally put themselves in a position from which they can sue the pants off of you, and they will.  Arguing with them is a wase of time, because they’re doing this only for the MONEY!

WarningHonestly, I don’t want to spend a lot of space drawing any more attention to them than a warning to others: don’t let them get to you.  They will say and do the most evil, vile, offensive things they possibly can to get you to react.  When I was in junior high school, it was called picking a fight.  Like the kid who knocks your books out of your hands while you’re both standing behind a teacher, and when you start swinging, they cry out so that YOU get in trouble.  It’s a trick as old as any other, and these folks have simply put a financial angle on it to boot and made it look completely innocent to others (or enough to hold sway in court).  Police generally KNOW what they are all about, but can do nothing except try to warn people to avoid them.  They picketed in front of my church one time and I could not believe the words on their signs.  If you go to their web site (I don’t suggest you do that, and I won’t provide you with links there because we have a family-friendly content and linking policy here) you would be appalled at the things they not only say, but get their children to promote on tee-shirts, signs, etc.

The guy that runs the “church” is a lawyer.  Been trained as a lawyer for decades.  Frankly, this is one situation where the 1st Amendment is being seriously abused (both from a religion and free-speech standpoint), and I think that one could make a case that it does not even apply because I don’t believe this group (leaders or followers, and this church is almost entirely made up of members of the leader’s family) believes a word they say.  I don’t think they know or care about God, or about homosexuality, or “righteousness”, I think they only care about how they make money, how they run their rather arcane “business”.  They picket homes, businesses, churches in their own city every single day.  The things they do and say are completely contrary to Biblical teaching on dealing with sin, compassion, and societal issues.  They are a fraud, hoax, and about as wicked and vicious a people as I have seen.

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So Much For the First Amendment

Art Smith January 15th, 2008

A Nevada judge has ordered NBC to include Kucinich in tonight’s Democratic debate. Wow. No, really, WOW. I never thought I’d see the press come under the control of the government to this extent. Regardless of what I think of Kucinich or NBC, Kucinich does have a right to run for President (although I wish he have the decency to lay down and let it go), a right to speak, but not, in my opinion, a right bully his way into a debate like this.

NBC should be able to control this type of content in any way they like. Even if it’s bad TV or bad politics.
The network has said they would appeal if the judge acted against them… should be fun day in the courts.

Hat tip, Memeorandum. The link above is from the LA Times Blog.

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