"Bigot" and Other Words of the Lazy Mind

The word “bigot” is being tossed about frequently in posts by those celebrating the same sex marriage decision, Obergefell v. Hodges.

Seeing that use of the language, I am reminded why a wise parent doesn't allow a toddler to play with guns.  They don't know what they're doing and someone is likely to get hurt. In the case of the careless tossing about of a charge such as “bigotry,” the posts I’ve seen demonstrate bare familiarity with the English language, and definitely show the bully’s penchant to win by sucker punch rather than fair fight.

So then, what is a “bigot?”

Ambrose Bierce rendered the most telling definition of a bigot:

“One who is obstinately and zealously attached to an opinion that you do not entertain.”

A more common, but perhaps not nearly so true, definition found in dictionaries for “bigot” is

"one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance"

Are there anti gay bigots?

Undoubtedly, there are. Just as there are racist blacks, the church undoubtedly has within its ranks those whose hearts are unconverted, who ignore the teachings of their faith, and that, thus, entertain hatred and intolerance in their hearts. The Westboro Baptist Church has gained notorious attention by attending the funerals of soldiers killed in foreign wars, in Iraq and Afghanistan, and claims that God is pleased with the death of those soldiers because of America’s approval of sexual sin.

But that isn't the case of many or most Christians, just as most blacks are not racists.

The Catechism of the Catholic Church, for example, provides a clear insight into the teaching of that Church on the status of homosexual attraction. The Catechism does not teach or condone hatred or intolerance of gay men and lesbian women. Rather, it offers hope to them, guidance for life, and instruction to the Church to respect the dignity of those who are oriented in attraction toward members of the same sex.

Is that “bigotry?” To teach welcoming of the person, to command respect for their dignity, while at the same time adhering to the truth as their lights permit them to see truth?

No, that isn’t bigotry.

To call that approach, “Bigotry,” is to invoke a Humpty Dumptidian power to make words mean what YOU say they mean, rather than what they are known to mean by common acceptance and usage.

Archie Bunker, of course, was a bigot, and, in a humorous twist, so was George Jefferson. We know that there are those who do not look across the divide and see persons whose value and worth is measured in the work of the Cross, where Christ gave His life, not just for heterosexual, but for all human beings. That is what makes a bigot.

But Ambrose Bierce did get this one right. 

Posts charge “bigotry” against those who, in an honest and humble examination of their faith, have concluded that they cannot celebrate Obergefell v. Hodges because it is a decision that proposes a constitutional right that they believe to be a moral wrong.

Their opinion being different than yours might feel like a sound basis for charging them with bigotry, but only in Bierce’s definition does that make sense. They hold their opinion but not yours, after such consideration, thought and examination as they have devoted to the subject at hand. Because their opinion differs from yours, you charge “bigotry.”

One need not share their views to understand the difference between such faith-filled folk and those who drop gay men off tall buildings in Iraq, or those who force gay men in Iran to undergo – involuntarily – sex reassignment surgery so that they have a physical body resembling a woman in pertinent aspects (breasts, no testicles, penis reduction to resemble the female clitoris, and a pouch where possible for sexual contact).

Shame on you, if you are in the business of recklessly charging others with bigotry as a consequence of their views on this question. Your resort to the “bigotry” charge is a shameless attempt to silence those with whom you disagree, rather than to engage them in an honest conversation about your views and theirs. Why do you blind yourself in your bullying rejection of the right of others to disagree with you? Why do you choose to bully others by calling them the most dread of names, "bigot?" You only have two eyes, can you really afford to poke one out in this way?

Brown Baggin' It: Supreme Court Justice Style

Compelling Teacher's Conscience in Pennsylvania School

Sometimes you'll bother watching tennis, or table tennis (don't dare offend real players by using the belittling "pin-pong"). But if you do, and if you take the approach of closely watching the ball, rather than leaning back and taking in the entire field of play, you get that neck pain from the back and forth, back and forth.

Coerced payments to unions can cause a mental version of that neck pain. After all, as Thomas Jefferson said, in his proposed and adopted Virginia Statute for Religious Freedom,  "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical." Yet, when a worker is compelled by a constellation of factors, including state laws permitting closed shops and National Labor Relations Board recognition of particular unions as the authorized collective bargaining agent for workers, she will, in fact, be compelled "to furnish funds for the propagation of ideas [s]he disbelieves and abhors...."

Here's an example of what unions do with dues that falls entirely outside the scope of collective bargaining:  "AFL-CIO Files Supreme Court Amicus Briefs to Support Marriage Equality." That's the headline of a page on the AFL-CIO webpage. Now, suppose you are coerced to pay union dues. You might wonder, if you disagree with the position taken by the AFL-CIO on the question of same-sex marriage equality, why it is okay to compel you to furnish funds for the propagation of ideas you disbelieve and abhor.

In Pennsylvania, in a school district with a closed shop, a teacher with more than three decades teaching foreign languages is currently asking that very question. Lisa Misja teaches in Armstrong County, Pennsylvania's Apollo-Ridge High School. She objects to paying union dues on religious grounds. The Pennsylvania State Education Association does not dispute the validity of her religious objection. Because of a state law, Misja is required to pay the equivalent of union dues amount, which are collected by the PSEA and are, by state law, supposed to be paid over to a charity chosen by Misja and agreed to by the PSEA. For three years, the PSEA has refused to send her contributing amount to the Pennsylvania Coalition for the Unborn Child or the National Rifle Association. The Fairness Center has now brought suit against the PSEA on Misja's behalf to force the union to make the payments.

To better understand the problem with what the PSEA is doing, consider the following:

Public schools in Pennsylvania are GOVERNMENT schools. Their employees are GOVERNMENT employees. When a school district agrees to enter into a closed shop agreement with the union that is recognized by the NLRB to represent GOVERNMENT employees, it does not transform the employee into a non-GOVERNMENT employee, it does not transform the job into a NON-GOVERNMENT job.

So here it is. The School District compels teachers to be members of the Union.

Past decisions of the Supreme Court have construed the First Amendment to protect a right to freedom of association. That "freedom of association" expresses itself in at least two polar ways: those with whom we just to associate, and those with whom we chose not to associate. As a consequence, while employees may be compelled to pay the equivalent of the cost of union dues, they cannot be coerced actually to join and be a member of a union.

Past decisions of the Supreme Court have also construed the First Amendment as guaranteeing union objectors to be protected from being coerced to contribute to the union in amounts over and above the cost of negotiation and representation costs. You may not have realized it, but as I noted above, many unions collect more in union dues than the cost of representation in collective bargaining. The amounts over and above representation can be used for a variety of things. One thing that unions have done, though, is engage in broad programs of social advocacy. And, with respect to the use of YOUR MONEY THAT YOU EARNED THROUGH YOUR LABOR, the Supreme Court has held that the Freedom of Association protects conscientious objectors from having those "over and above" costs used by the Union for political advocacy.

So, while the Court has held that individuals can be compelled to pay the costs of collective bargaining (but not the over and above advocacy costs), in Pennsylvania, the law provides that, where a collective bargaining agreement requires it, an objecting non-union member must pay the equivalent of the union dues as a Fair Share Charitable Contribution. Pennsylvania requires that such fees MUST be contributed to a CHARITABLE CAUSE AGREED TO BY THE UNION AND THE NON-MEMBER. (As an aside, I should mention the law requires that the contribution be made to a NON-RELIGIOUS charitable cause.)

This case, then, comes from the fact that the Pennsylvania State Education Association and the teacher HAVE NOT AGREED ON the charity chosen by the teacher. Misja's choices -- the Pennsylvania Coalition for the Unborn Child and the National Rifle Association -- have not been approved by the PSEA. For that reason, the PSEA has withheld her contributions in an interest-bearing escrow account.

The lawsuit will bring into sharp focus, if it is allowed to proceed, this culturally odd solution, potentially unconstitutional in nature, offered by the Commonwealth of Pennsylvania when it permits the creation of closed shops in GOVERNMENT employment but seeks to assuage conscientious objectors AND THE CONSTITUTION by creating what is now proving to be an unworkable system of COERCED CHARITY.

Scalia to Kennedy: Your Opinion is Embarrassing

Perhaps the best direct insult written by one justice about the opinion for the Court by another Justice came today in the dissent of Scalia. My excerpted version of his dissent, included below, omits the footnotes; those are, virtually entirely, reference notes only. But this beaut is in there too, so I present it at the top:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

I will write further on the case and its implications. For now, the dissent of Justice Scalia is a clarion cry of warning about the death of the Republic at the hands of our black-robed mystics:
______________________________________________________________________

Scalia, dissenting

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage  evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

I

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage.

Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.2

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire.

These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12

We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15

The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.”

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination.

The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

II

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.  And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

* * *

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

The Deciding Season: UPDATE

[I posted this entry in anticipation of the decision by the Supreme Court on the question of same sex marriage in the case of Obergefell v. Hodges. Now that the Court has rendered its decision and construed the Fourteenth Amendment to protect a right to same-sex marriage, I have update the entry.]

We are in a deciding season.

This quickly concluding period comes every year, as June shifts from Spring to Summer, and as the celebratory Fourth of July holiday rushes toward us. It is the period when a rash of decisions are released by the US Supreme Court in cases that have been argued to the Court over the previous nine months.

Every year, the Supreme Court begins a new Term of Court on the First Monday following the First Sunday in October. For example, the Supreme Court is in its October 2014 Term of Court. Technically, each Term of Court continues for one year, ending when the Court sits again on the First Monday following the First Sunday in October of the next calendar year. By custom, and particularly because of the heat and humidity of the Washington metropolitan area, the Supreme Court does not hear cases argued in the summer months. In fact, the Court customarily releases all decisions in all cases that have been argued before the end of June, and then leaves town.

So that is what makes this the deciding season. The Court typically issues 70 to 100 decisions a year in cases that have been fully briefed and orally argued before it. In some cases, the justices are unanimous and the outcome not particularly stunning. For that reason, the Court will have a steady stream of decisions that are released all Term long.

But, when the judges are closely divided, and the cases are highly controversial, decisions in those cases often will not be available until the Court cannot stand the actual temperatures and humidity in Washington and they fly the coop. So, there really is a deciding season, every year, in June, at the Supreme Court. It happens, however, that not every Term of Court has cases that are of such far reaching significance as the Court has entertained this year.

Now that you see what season it is, perhaps understanding how to judge the quality of the "deciding" that goes on would be something of value to you.

If you are like me, it is still a magical thing -- whether in competition diving or gymnastics -- when judges hold up cards showing the score they assign to some athlete's performance. Sometimes, the temper of the crowd, the sheer athleticism, grace, skill, and performance of an athlete, any of these, or in very rare and amazing moments, all of them, explain why the judges all hold up cards indicating a perfect performance.

So here we are, watching the "deciders of the Constitution" render judgment in a rash of cases before they jet off to the Riviera, the Kremlin, and whatever other location to which their inclinations or handlers direct them.

By the way, please don't confuse the "Constitution deciders" with the "War Decider:"

Of course, some of you think the "War Decider" was silly, because he identified himself as "the decider." But, please, not so fast, and not so judgmental.

The Supreme Court, albeit in much more grandiloquent language, proclaimed virtually the same thing about itself over two hundred years ago. It proclaimed itself "the Constitution Decider" in an early set of cases. These cases, issued under the ministrations of Chief Justice John Marshall, set out the Constitution Decider role of the Court: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Then, seemingly, no one worried about the ravings in decisions like Marbury v. Madison and what they might portend for the future of the Nation. Thomas Jefferson was the notable exception to that unconcerned frame of reference. Jefferson thought the Judiciary a terrible menace to our constitutional frame, he referred to judges as "miners and sappers" continually at work undermining the law.)

The question is, as the Constitution Deciders finish their annual decider escapades, will you recognize "silliness" or worse, "errant knavery," if it takes the form of a decision from the Constitution deciders at the Supreme Court?

As I contemplated what advice I might give to an inquirer, on how to measure the quality of the deciding found in decisions of the Supreme Court, I considered many possibilities.

For sheer bulk, of course, few Justices had quite the knack of Harry Blackmun for overworking a topic, attempting through research on arcana only tangentially related to a case to make himself an "expert" in an area of law. Blackmun's opinion on the question of whether Major League Baseball violated antitrust law, Flood v. Kuhn, is widely considered to be, not only a discredited opinion, but also a perfect example of his ham-fisted prolixity.

Bulk, of course, cannot stand for reason. As Justice Scalia noted today, in the King v. Burwell case, in which he wrote a strong dissent,

"The Court holds that when the Patient Protection and Affordable Care Act says 'Exchange established by the State' it means 'Exchange established by the State or the Federal Government.' That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so."

So, as you see, writing 21 pages of wrong reasoning certainly cannot be the way to convince those who are judging how you performed your job that you performed well.

Or, of course, we could look to such things as spelling, grammar, composition, and style. That, of course, might give us a sense of the education, polish, and verbal acumen of opinion writers. Still, Thomas Jefferson and Abraham Lincoln both exhibited the occasional written eccentricity. I do not think that, by themselves, the principles by which your high school composition teacher measured your writing tells you exactly how to measure the quality of judicial opinions.

There is an old, perhaps over worn, comedic device in situation comedies involving children and teens. Frazzled parents will have told a youth to clean the bedroom, perhaps once, perhaps a dozen times. The room is a mess, a true wreck. The parent then threatens some doom: loss of privileges, loss of planned activity, etc. At some point, the youth "surrenders," goes to the room, and shoves everything in closets or under beds. A quick look from the doorway suggests that the obedient child has accomplished the assigned task.

For some parents, perhaps that child will have done as required. Maybe, and trust me as a dad that has stepped on a Lego or two, maybe all the parent wanted was the ability to have their feet touch the floor in the bedroom. More likely, however, the parent was accomplishing, they thought, multiple goals, such as instilling discipline, teaching respect for personal property, and the like. For the parent that just wants to feel the floor beneath their feet, the child has "done their job." For the other parent, a peek under the bed, a misadventure in opening a closet door, these reveal that the youth only appears to have done their job.

So maybe, just maybe, what we need, in evaluating whether an opinion's author has done his job (or hers), is to figure out what is their job. In fact, when the concern is whether the decisions of the Court tend to further increase the power of the Court, or to destroy republican democracy, or when they simply represent judicial sleight of hand, we assuredly cannot simply trust in judicial assertions that judges are "just doing their job."

“Just doing their job” has been the refuge of scoundrels, great and small, from Nazis in Germany to those that conducted the forced march of Native Americans on the Trail of Tears to those who are executing all manner of offenders in Sharia-governed countries. Of course, “just doing their job” is a tough line to sell when one does the job with such zeal, such evident gusto. “Just doing their job,” in fact, is the conscienceless denial of responsibility where, for a time, consequences of doing that job have not yet come home to roost.

In his critique of the Supreme Court decision in Dred Scott v. Sandford, Abraham Lincoln provided a nice list of considerations that he suggested might have, at least, provided cover for the decision.  He said:

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

I won't assert that Lincoln's is the definitive test for knowing when a decision of the Supreme Court can lay claim to certain legitimacy. Still, the points of inquiry he raises have value in assuring that the Court hews a line with which the People concur and that is known and understood by the various parts of the Government.

If we apply Lincoln's Legitimacy framework to current and pending decisions of the Court we may find that, just as then, we now live under a judicial, not a republican, form of government.

Consider, for example, the recent decision on same sex marriage, Obergefell v. Hodges.

Deciding Obergefell, the Court held there is a Fourteenth Amendment right to same sex marriage, because it denies a fundamental right to marry included within the Due Process Clause of the Fourteenth Amendment. [We can leave aside an obvious truth: such a right was never contemplated by the authors and ratifiers of the amendment.] Applying Lincoln's test would, I suspect, confirm that the decision has no claim of constitutional legitimacy.

Is the decision unanimous among the judges?

No, the decision is not unanimous. As the Court has politicized itself more and more by imposing policy rather than deciding cases, the frequency with which the Court is closely divided on outcomes continues to increase. Obergefell was no different, decided five justices to four.

Any other outcome would have been unthinkable. The gap in judicial philosophy between, on the one hand, Justices Scalia, Thomas, and Alito, and, on the other hand, Justices Breyer, Ginsburg, Sotomayor, and Kagan, on these questions is too broad to conceive of a unanimous result. The only surprise that remained in the Obergefell was whether Justice Kennedy would vote with the constitutional block or the progressive one.

Is the outcome without any apparent partisan bias?

No, the outcome is not without any apparent bias. Two Justices, Ruth Bader Ginsburg and Elana Kagan, had already officiated at same sex marriages while the Court mulled the question whether the Fourteenth Amendment guarantees an right to same sex marriage. It strains credulity, and it insults those Justices' sense of their own integrity, to charge them with what would have been the cynical act of presiding over marriages the legitimacy of which they held in doubt. Clearly, Ginsburg and Kagan labored under a bias favoring the recognition of same sex unions.

Is the decision in accord with public expectation?

Legal public expectation is an interesting notion. The vast majority of States have statutes or constitutions defining marriage so as to limit it to opposite sex couples. True, courts have suspended the operation of those laws. Nonetheless, those laws and constitutional provisions were the product of majority or super majority actions of legislatures and electorates. A recent story reveals the embarrassing lack of legitimacy to a study of how Americans perceive same sex marriage when they are given to understand that their communities accept the idea. I suspect Lincoln's calculus did not provide that shady studies deriving fudged numbers outweigh republican exercises in self government.

Has the recognition of a constitutional right to same sex marriage been a marked feature of the practice of governmental departments throughout our history? 

Hardly. It is just two terms since the Supreme Court found one section only of the Defense of Marriage Act unconstitutional. Candor requires supporters of same sex marriage constitutional rights theories to acknowledge the novelty of their cause.

Was the decision based on false assertions of fact?

It is painful to touch on this next point. It risks hurt to people I think are of good will. But I prefer not to be charged with a flabby application of Lincoln's test, so I will take it up.

At oral argument, Justice Kennedy pointedly noted that the existing, opposite sex couple definition of marriage is no novelty, but a function of the history of millennia in which is found no open practice of the right to same sex marriage. Contentions to the contrary screen reality. Moreover, and this risks the undesired infliction of pain, opponents of same sex marriage provided the Court with social science evidence that opposite sex couples provide the best foundation for the development of healthy children. This point, that harm will ensue to children has been buried by Justice Kennedy’s curious rearrangements of facts.

Was the outcome one that has been had affirmed and re-affirmed through a course of years?

Obviously, Obergefell, being the first decision recognizing a Fourteenth Amendment right to same sex marriage, cannot make such a claim. It remains to be seen whether the coming course of years will produce affirmations and re-affirmations of it by the court.

********

Obergefell is decided, and the Court has concluded that the Fourteenth Amendment guarantees a right to same sex marriage. A fair reading of the decision, using Lincoln’s legitimacy test, shows that the majority judges, like children shoving dirty laundry in closets and under beds, did not do their job.

A Lion Among Cats

I don't know whether some folks really are "cat" folks and others "dog" folks. Growing up, we had two of particular note: Emma, who patiently abided being dressed as a business man (our first, and only, transvestite pet); and Sparky, a high energy, peripatetic mutt. Emma brought the class looks and distinction of a black and white pointer to her game, Sparky brought terror whenever the front door stood open too long.

After Terri and I married, and after law school, when our first two children, Abby and James, were toddlers, and we lived in a mobile home, in Kentucky. This period was during my first years out of law school. I took a job with a small nonprofit law firm involved in First Amendment cases, typically cases resulting from pro-life speech activities near abortion businesses. Pat Monaghan, my boss, offered an overly tempting compensation package:  Thirteen thousand dollars a year, professional fees paid, the mobile home at no rent, and health insurance (except when he cancelled it without telling me).

The mobile home sat half-way into a cow pasture. Less that a stone's throw from our door there was a barn, and in the barn, there were cats. Abby and James got their first taste for cats then. They loved them. As cats in farm setting do, the Monaghan cats multiplied. At one point, after we had moved to the Washington, DC, area, the Monaghans had more than twenty cats (I know that because one of their sons told me he gathered up 21 kittens and cats, took them to the woods, and shot them dead with a .22 rifle.)

When we settled into the Northern Virginia area, Abby and James had not forgotten cats. They missed the cats. They even made friends with an ant that got into our "Florida" room or back porch. Eventually, they, and Terri, wore me down, and with our landlord's permission, we got our first cat. That first cat came from a home where the parents loved it, but had to adopt her out because of an infant with respiratory issues.

Since our first Virginia cat, we had many come through our home. Several of them won particular places in various folks' hearts. I won't list them all here, because today I am writing about the Pride of our Cats, the Lion among Cats, an animal of dignity, grace, and strength.

Our daughter, Jennifer, brought Sam into our home. Sam had a rough start in life. He had, at some point, contracted an eye infection. His prior owner apparently failed to get treatment for him, and he lost sight in one eye. When Jennifer assumed responsibility for Sam, the infection was threatening the other eye. Using her earnings, she had him treated and saved the other eye.

Sam. With one good eye, some folks would tell me they thought he should be put down. Some, when they learned of the possible loss of sight in his other eye, would tell me that he should surely be put down then. Every time I heard these remarks, I wondered to myself, "and if you were blind, would you rather be put down, or allowed to find your food using other senses, be allowed to explore your world using those same other senses?"

No, Sam was not going to be put down over a little matter of visual impairment.

Jennifer left Sam with us, although we understood at the time it was a temporary arrangement and that she might, when circumstances allow it, reclaim him. Circumstances, thankfully, never allowed it. Sam grew in our home and in our hearts.

Having monocular vision meant Sam lacked depth perception, I suppose. But those whiskers and his good sense seemed to keep him on the straight and narrow. We never lost him to a car or truck. He got his fair share of bird pecks, because he did love the outdoors. But it never stopped him from going outside.

Sam grew and got a beautiful sleek coat. A couple years ago, he had acquired quite a regal appearance.

Sam loved to spend time with various folks in the house. He was a cat of many vacations: he spent time visiting Abby, visiting Pat, visiting Terri, and even visiting me. He was also a cat of decided interests. Specifically, he decided where you would scratch him, and almost always that was just behind one ear and under his chin. Like all our cats, Sam faced one insufferable indignity, but he suffered it well. I like to turn a cat over on its back, cradled in my arm like a baby, and rub its belly. Sam let me do so.

Sam developed congestive heart failure, probably sometime last summer. He lost weight. He had a lot of trouble breathing. A veterinarian gave us the prognosis, and a couple scripts to help with water weight gain around his heart and with his breathing.

I'm sure some folks would have suggested putting Sam down then. But, to be honest, I was thinking about some one's mom, and I thought, well, if God can care for some one's mom that has congestive heart failure and extend her life beyond expectation, why should I think that killing Sam made sense. (I won't mention the someone, they know who they are, and they know how we and others in our couples' small group cared for them and prayed for their mom during that season in their lives.)

Sam fattened back up some and his labored breathing relaxed. We continued to enjoy the equanimity of his presence, whenever he deigned to share it with us. In some ways, his prognosis slipped from my mind.

Today, I came home for lunch at 3 pm. When I walked in the kitchen door, Rose told me the news. Sam had just passed away, in Pat's bedroom. Sam went to sleep and, apparently, passed peacefully in his sleep.

I am glad that Jennifer brought Sam home and into our hearts. While having him pass out from our home and life hurts, and hurts a great deal, he was, in his own right, a lion among cats.

Memo to Karl: More Thinking, Less Speaking

INTEROFFICE MEMORANDUM

From:  Lovers of Liberty

To:      Karl Rove
Date:   Monday, June 22, 2015
Subj:   Performance Evaluation and Reprimand

Karl,

When the need arises to provide this kind of performance evaluation, it really causes us some pain. The pain is particularly acute here, as we have had the impression that you intend to be about the business of preserving and extending liberty. Unfortunately, your performance on the “friendly” set of Fox News Sunday yesterday requires that we put you on notice and on probation.

Even left wing rags, such as Salon, recognize that you did not actually call for repeal of the Second Amendment. Nonetheless, along with many friendly outlets, Salon’s observations demonstrate why you clearly need a refresher course on the principles of the Founding of our Nation, and why you are on probation until further notice.

Here’s the relevant transcript portion from the show. If there is any particular in which the transcript is wrong, please provide a correction:

Now, maybe there’s some magic law that will keep us from having more of these. I mean, basically, the only way to guarantee that we would dramatically reduce acts of violence involving guns is to basically remove guns from society, and until somebody gets enough oomph to repeal the Second Amendment, that’s not going to happen. I don’t think it’s an answer.

Now, here’s Salon's take on what you said:

Karl Rove didn’t exactly call for the repeal of the Second Amendment on “Fox News Sunday.” But what he did say was shocking in its directness and its implications.

Notice the disconcerting couching of their admission. True enough, you didn’t “exactly call for the repeal of the Second Amendment . . . .” How fortunate that you "didn't exactly call" for repeal! But how did you find yourself so ineptly unprepared when the obvious topic of the program would be the Charleston tragedy?

Your mistake is plain. You allowed the particularly painful incident of the shooting to distract you from an important reality:  The right to keep and bear arms is completely unrelated to mindless and hate-inspired violence. Unfortunately, your statement speaks for itself. When you explain, as your subsequent tweet did, that you did not mean to imply that the Second Amendment should be repealed, it simply proves the point that you misspoke on a topic and at a time when liberty suffers the risk of great harm through such carelessness.

If you do not grasp the philosophic concepts embodied in our Declaration of Independence and our Constitution, then you simply must refrain from speaking in venues where you may be called upon to address these crucial and central topics. This Sunday was, not to put too fine a point on it, a fiasco.

Now we have to suffer through the inevitable inside battle among those who read what you said and find it disturbing, and those who mince your words to "prove" that you did no such thing as call for repeal of the Second Amendment. Those conflicting interpretations of your remarks induce an unhealthy dispute internally ... among those who agree that the Second Amendment is not the problem and who should be working together to defend and extend liberty.

What is it that we expect from you, Karl?

We do not really expect a lot from you, Karl, except, of course, what we really want for folks everywhere: a liberty-oriented understanding of these disputes.

What does that liberty-oriented understanding look like, Karl?

Like this:

The Declaration of Independence teaches us that we are possessed of a natural right to life. A coordinate to that right is the right to protect that right to life through the use of force.

We are, likewise, possessed of a natural right to liberty. A coordinate to that right is the ability to protect that right to liberty through the use of force.

The Second Amendment doesn't grant us these rights. Rather, the Second Amendment takes from the hands of government the power to strip us of the means to exercise those coordinate rights of self-defense and defense of another.

An appropriate answer -- and, after all, isn't this what we should expect from a talking head that purports to speak for us -- would have sounded something like this:

Chris, there is no doubt that we have a problem with the wrongful resort to violence. Roof is just one example of it. The Second Amendment, however, has nothing to do with that problem. It is fish to bicycles. 

What we are facing, in incidents like Charleston, is a a problem of hearts and minds. We are not in the business of repealing hearts and minds. Consequently, we had better address these heart and mind issues, and we had better get better at the business of converting hearts and minds.

Please sign and return one copy of this memo to acknowledge your receipt of it.

____________________________________
KARL ROVE

Will Republicans' First Tax Be For Healthcare Subsidies?

We are in the “home stretch” of the October 2014 Term of the United States Supreme Court. Otherwise not necessarily sensible, the Justices have persistently sought to be out of the District of Columbia before the real heat and humidity of a Washington summer take hold. So, by tradition, the Court makes best efforts to resolve all cases pending after argument by decisions and/or orders issued by the end of June.

A few landmark decisions remain to be made. One of them, King v. Burwell, presents the Court’s third visit with the Patient Protection and Affordable Care Act, or Obamacare, as it has come to be called. In Burwell, a challenge was made to federal government funding of certain health care subsidies on the ground that the subsidies violated the express language of Obamacare. The essence of the case has to do with the Obama administration deciding to provide federally-funded subsidies for health care premiums for qualified subscribers who live in States that refused to set up and run a State health care exchange.

Using a carrot and stick approach, when the Congress under Democrat control and the President adopted Obamacare, they included a provision that would make health care premiums more affordable for lower income applicants by offering a subsidy – essentially a tax credit – when such insurance was purchased through an exchange set up by a State.

The States, by a broad majority, declined the temptation and refused to set up State exchanges. For residents in those States, the result was that they would not see subsidies that would make health insurance premiums affordable. Anticipating that costliness would result in low participation rates, the Obama administration unilaterally decided to “interpret” the law as though subsidies would be available to subscribers who obtained insurance through exchanges set up in the States if the States did not set them up.

Verbal gymnastics, at a minimum. Shameless hucksterism in service of the progressive ideology is the more accurate explanation of what they did. Now the Court will answer this question. When it does, it will either allow the hucksterism to continue. The lower court did so, so it might not surprise if they do. But, if the Court finds that the Obama administration's tortured misreading of the statute is incorrect, then there will be millions of Americans with suddenly unaffordable health care.

Of course, the progressives want Republicans to react with fear, and conclude that those that may lose health insurance will hold them accountable at the ballot box if they lose their coverage. For this reason, some Representatives are talking about creating a temporary fix by which those subsidies could continue. With that in mind, here's

A scenario to keep in mind:

Suppose the Supreme Court decision on Obamacare rejects the decision by the Obama administration to offer subsidies to qualified subscribers in States that did not set up their own exchanges.

Suppose Republicans in the House and Senate PANIC that they will bleed angry voters out of all orifices if THEY DON'T create a "TEMPORARY" fix extending to the administration the power to provide the subsidies.

What will have happened?

If that happens, then the REPUBLICAN CONGRESS will have IMPOSED A TAX ON YOU to pay for others' health insurance.

Remember:  The FIRST Obamacare decision by the Supreme Court only upheld the individual mandate because the Court concluded that the "shared responsibility payment" was, in fact, A TAX.

SHARE AND CARE:  Do the Republicans intend TO EXTEND A TAX imposed only by Democrats?

Tell your Republican Representatives and Senators that you will not vote for them again if they do so. 202-224-3121.

When the Gods of The American Olympus Speak: The Uncertainty of Rights

"We hold these truths to be self-evident."

Do we? Do you?

The enterprise of our liberty, our independence, as a people, from Crown and Parliament, depended on the earnestness of those who proclaimed that they held those views. If they were not, as free, moral, agents convinced that they and their fellows were possessed of a body of rights that they could not even agree to surrender (inalienable), then their pretense of offense at the tyranny of the English Crown and Parliament was just that, pretense on pretense. Rather than conclude against evidence that the Declaration of Independence was an insincere statement posturing about aspirations, I take Jefferson and the signers of it at their word.

Who we are, as a People, can be stated in many ways. A law professor with whom I occasionally debated back when newsgroups were a key way to communicate on the Internet often referred to America as the Protestant Empire; that phrase succinctly stated the exclusivity of the Protestant view shared among the principal founders, and among the States, throughout much of our Nation's history. Of course, others use the term "melting pot" and identify the Nation as, essentially, mongrels, the world's "mutts" if you will.

Certainly there will be great disagreement in such categorizations. But the Declaration speaks for me. We are a People convinced that each of us, at the hand of Nature and Nature's God, are endowed with rights that belong to us in time before there is even a political body such as this Nation to get into the business of "granting" such rights. In other words, our right to live, it does not exist because our particular State and the United States have told us we may live. Likewise our rights to liberty and to pursue happiness.

Still, the Declaration, while it gives us an identity as a People, does not state a set of organizational principles by which a common enterprise such as a political community can be stood up and can be maintained.

For those principles, we have looked to Constitutions, first, the Constitutions of the States (as they preceded in time and right the general government) and second, the Constitution of the United States. These documents frame our governments. They confirm powers of the government (or in the case of the federal government, they confer those powers on the general government). They acknowledge the existence of, and inviolability of, the rights with which the Declaration says we are each endowed.

Throughout the entire course of our constitutional history, a struggle has existed over the question of how to govern the whole body of us. Lincoln spoke to this question in his First Inaugural Address. Remember, to render this address on the assumption of his duties, Lincoln had first to sneak into Washington, DC, coming from Illinois, by rail, through the border State of Maryland, which never seceded but which had preferred his opponent, John Breckenridge, a Southern Democrat, in the general election. So, in his inaugural address, with threats and moves toward secession spoken openly, he made his appeal for Union.

In that appeal, he explained how the conflicting views created issues of how the Nation could be governed. In his view, secession was the minority opinion. And, as he viewed it so, he explained that it was not, by any sense of political power or duty, entitled to a permanent circumstance of governing over the majority:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Ultimately, what we have is not a finely tuned machine, with exceeding close, "German engineering" tolerances. Instead, we have republican (little "R") government by which, in fact, our law and policy is made by representatives of the people, not the people themselves. Moreover, that republican or representative government does govern by principles of majority rule. With respect to the choices to made in laws to enact, laws to repeal, and the like, the essential governing principles are two:

First, the majority is free to make laws, or to repeal laws, touching upon the host of human experience and interactions, so far as, and to the extent that, the majority chooses to do so.

They can adopt a law requiring that leaves be bagged and placed at the curb. They can pass a law requiring that cars undergo an annual safety inspection. The only requirement preceding a legitimate exercise of this general right of legislative majorities is that there be an underlying rationale for their law that survives a minimal kind of scrutiny often called the rational basis test. So, for the leaf bagging requirement, a county commission might pass just such an ordinance after hearing testimony from the rainwater runoff commission that leaves piled in street-side gutters result in clogged rainwater drains.

Second, the majority is barred from making laws in selected categories.

The majority cannot make laws that target certain kinds of minority groups for disfavored treatment (so, for example, they majority cannot require that all Asians register with the police department, or that all Norwegians register with the Farm Bureau). Such laws violate the principle of equal protection of the law. The majority could, for example, pass a law requiring EVERYONE to undertake some ministerial act, for example, attend school. In fact, such laws are widespread, rampant, familiar.

The majority is also barred from making laws that burden the exercise of certain essential, political and civil rights, rights that we often associate with the Bill of Rights, such as the right to freedom of speech, the right to free exercise of religion, the right to keep and bear arms. It doesn't matter that the Congress or your State assembly pass a law that restricts every one's right to gun ownership -- as opposed to a law prohibiting only Caucasian females from owning -- it is the underlying, affected right that is of particular concern and that is particularly prized and protected.

Given that background, and as we are, or may be, on the cusp of a stunning decision of the Supreme Court on a question of law that has always been, until in recent time, readily recognized as belonging to the sphere of States' powers rather than the federal government's powers, I think it of great importance to see how a nation is being held hostage to the opinion of, essentially, a single man.

The American Olympus

Let's start with this atmospheric:

Here are the remains of the Parthenon, the Temple of Athena, the Greek Goddess of Wisdom. By legend she sprang full grown from the head of Zeus. Nearly two and a half millenia later, the Athenian devotion to her wisdom is evident in the structure.

Yes, damaged. Crumbling. But who isn't after a couple millenia. Now, compare that remarkable temple with this one, the United States Supreme Court, which was constructed in the manner it was, for the purpose of creating a sense of it as a judicial Olympus:

Comparing the two leaves you the impression that the only real difference is that the Supreme Court required more space for staff than did Athena.

And, it isn't that the building resembles a Greek temple, accidentally. Cass Gilbert, architect of the structure, "literally conceived of [it] as the temple of justice...." "Finished and occupied in 1935, the Supreme Court is meant to resemble a great marble temple."

Literally, the face of the Court to the Nation is that the Court is our American Olympus. With the passage of time, and the accretions of power within our constitutional framework of government, the Court's decisions are often difficult to perceive differently than the rolling of thunder and bolts of lighting from legendary Olympus.

If you haven't listened to the oral argument recently had before the Supreme Court on the cases involving the claimed constitutional right to "marriage equality," the legal principles and language are not so arcane, so full of legal jargon, as to be beyond comprehension. You could, if you wished, listen to those arguments, here (part one) and here (part two). It's a good bit more work to wade through the briefs and the many additional filings by interest groups supporting and opposing the claimed constitutional right to marriage equality. But were you to do so, you would immediate recognize that there is one "pretty girl" in the "gym" of the Supreme Court's argument, only one justice for whose vote every legal "suitor" pines and yearns: Justice Anthony Kennedy.

Kennedy, just like moderates preceding him, is often targeted by the authors of briefs and the presenters of arguments. Not targeted in a bad sense, but targeted in the sense of being the one to be convinced, to be wooed in words. And the media reports recognize that this case likely depends on Kennedy's vote. Here are some examples of such media reports:

The decision is likely to come down to the court's key swing voter, Justice Anthony Kennedy, or Justice John Roberts, who once sided with the liberals in the case that upheld Obamacare.

He said the more conservative justices - Antonin Scalia, Clarence Thomas and Samuel Alito - are likely to rule against gay marriage. And the more liberal justices - Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - are expected to support it. Feldman said Justice Anthony Kennedy and potentially Chief Justice John Roberts could be the deciding votes.

The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights. In three key decisions since 1996, Kennedy has broadened the court's view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.

All reports from the argument support the likely scenario that Justices Breyer, Ginsburg, Sotomayor and Kagan will vote to overturn the lower court decisions in the cases at the Court on the ground that the Constitution guarantees the right to marriage equality, and that Justices Roberts, Scalia, Thomas, and Alito will vote to affirm the decisions now pending before the Court. (Of course, we are supposed to reason that even though Justices Ginsburg and Kagan have officiated at same-sex marriages, their decisions on the legal question will proceed from constitutional grounds rather than personally biases.)

That leaves for prognosticators the all important question: how will Kennedy vote? 

Will Kennedy join the progressives on the Court and stunningly overturn the understood two hundred years plus interpretation of the Constitution and one hundred forty years reading of the Fourteenth Amendment, finding a right to marriage equality that guarantees that members of the same sex have same right to marriage as was previously recognized only for opposite sex couples? Or, will Kennedy join with Roberts, Scalia, Thomas and Alito, and hew the traditional lines of the Constitution?

No one, except the Justices and their staff members involved, has any idea for sure now. But shortly we will all know. And then, no matter how the case turns the howling will ensue. If Kennedy rejects marriage equality in this go-round, even if he leaves open the pathway toward its eventual recognition, the supporters of marriage equality will undoubtedly decry the injustice that they perceive in such a construction of the Constitution. If Kennedy joins the progressive justices on the Court and finds a constitutional right to same sex marriage, then the hue and cry from supporters of traditional marriage will, likewise, erupt.

So now, I am again thinking of the President I hate to love, the President I love to hate, Abraham Lincoln. And I'm thinking about the Nation that he "inherited" as President. Then, we were a nation fracturing over slavery, and reeling from a Supreme Court decision that rejected the power of Congress to restrict slavery in federal territories, a decision that denied the constitutional person hood of Africans. Then, his First Inaugural Address, he spoke to near half a Nation that hung precipitously on the cusp of secession, and to over half a Nation that had seemed content to leave slavery where it found it, maintain Free Soil principles where they established them, and work toward political solutions when possible. His address served as his appeal to heart and mind against the propriety of secession, and thus against the principle, as he would see it, of minority rule.

Today, his words would be directed to those who advocate marriage equality. While same-sex marriage has become legal in the majority of our States, the bulk of those changes were by reason of federal court decisions declaring State laws or State constitutional provisions restricting marriage to opposite sex couples to be unconstitutional as violations of the Fourteenth Amendment. In the absence of those judicial rulings, the vast majority of States prohibited anything other than opposite sex marriage. Lincoln, then and now, would urge that the better, more secure guarantee of the right for which they are contending through the Courts.

Remember that the Nation learned this lesson through a Civil War. An ill construction given to the Constitution by the Supreme Court, the election of a Radical Republican, and the feared loss of sovereignty in southern States, together with the moral question of slavery, precipitated that war. And that war created the conditions by which three amendments -- prohibiting slavery, guaranteeing citizenship to the newly freed slaves, and providing a right to vote -- could be added to the Constitution. And while the work of perfecting those repairs is not done, it has not been left mostly undone.

And that's why I keep explaining in this blog, and elsewhere. I know many stridently oppose redefining marriage to include same sex marriage. I know some fervently yearn for recognition of marriage equality under the Constitution. But neither group can rest securely in the outcome for which they hope when the outcome is granted by the oligarchs of the Supreme Court. The securest means of guaranteeing a right or preventing a wrong, in our constitutional society, is to AMEND the Constitution. Nothing else is a substitute for doing so. Otherwise, we will continue to wake up in Kennedy's America, or another Justice's America, and not our own.

Murder and the Misfortunes of War

Apparently, the life of an Iraqi man is worth about seven years.

This week ends with word that Marine Sgt. Lawrence Hutchins, again convicted a US Military Courts Martial for killing an Iraqi civilian will be dishonorably discharged from the Corps, but will not serve additional time over and above the seven years he has already served for the crime.

While some may celebrate the end of this matter as a vindication of any kind for the conduct of Hutchins, it is no vindication. It is a moment of deep shame that a member of the American military stands convicted of homicide. And, as is detailed further in this post, there seems no question but that the killing of retired Iraqi policeman, Hashim Ibrahim Awad, after he was kidnapped from his home was just a straight up murder. Walking with seven years incarceration sends the wrong message to America, to its allies in conflict, and to its enemies.

Special solicitude for non-combatants in battle is a feature of civilized people. Even Conan, a Barbarian, knew not to kill the women and children:

Mongol General: What is best in life?
Mongol: The open steppe, fleet horse, falcons at your wrist, and the wind in your hair.
Mongol General: Wrong! Conan! What is best in life?
Conan: Crush your enemies. See them driven before you. Hear the lamentations of their women.
Mongol General: That is good! That is good.

The re-conviction of Sgt. Hutchins is the right message.

His release from further incarceration communicates poorly our respect for individuals, our concern to distinguish battlefield combatants and civilians, and gives a pass that should not be written for misconduct in war.

His dishonorable discharge, at least, which is shameful, and strips him of the right to stand with those whose chests swell somewhat when they hear the phrase, "Semper Fi," reminds our fighting men and women that they bear, each of them, the conscientious duty to distinguish between the legitimate, and the illegitimate targets of war

******************************

As a very young child, I lived with my family aboard the Marine Corps Air Station at Cherry Point, in eastern North Carolina. My memories of those days are few. Principally, I remember my first friend, Russell Martin, like me, a Marine Corps brat. Russell would knock on our front door, and in a deeply husky voice, intone, "Mrs. Henderson, can Jamie come out and play?" Russell and I must have played a lot, but the main, notable, play was a rough-housing in which, I am told, we took turns standing in a red wagon and being knocked out of it by each other. I suppose we'd seen a cowboy show or something that prompted our childhood attempt at recreation.

We relocated from Cherry Point back to Albuquerque, New Mexico, after that.

In Albuquerque, I started school at St. Mary's Elementary School. More memories begin to creep in at that point.

I remember sitting on our front steps while the older kids and their friends were playing softball in the front yard. Someone hit the ball badly and it struck me in the face. Many Albuquerque memories spring up around the legendary witch of our neighborhood, Meanie Miny Mella. The Mellas lived next door. Their son, Paul, had had polio and wore a brace. Mrs. Mella operated a beauty salon from her home. Hers was the first purple hair I ever remember seeing.

The Mellas' yard had a quite tall hedge all along the sidewalk and bounding up both property sidelines. Mrs. Mella did not seem much to care for children, particularly not others' children, and had a habit of using a garden hose to spray through the hedge at kids passing by. If you can picture a younger version of Mrs. Henrietta Lafayette DuBoise, the elderly, Confederate-pistol-packing invalid neighbor of Jem, Scout and Atticus Finch in To Kill a Mockingbird, then you will get the picture, although Meanie Miny Mella never showed a propensity to being placated by gentlemanly conversation.

One memory of our time back in Albuquerque pertains to this heart of this post. We had, in our neighborhood, a man that survived the Bataan Death March.

The immediacy of his brokenness is lost on readers today. I am of the generation whose fathers fought Japanese Imperialists, Italian Fascists, AND German Nazi Socialists. And, although the aftermath of World War II gave great focus to the horrors of Germany's Final Solution, not much attention broadly spread in America the horror of how Japanese military and medical personnel tortured and killed native peoples of the Pacific Rim and Allied POWs with the sole exception of coverage of the Bataan Death March.

The Bataan Death March followed the surrender of the American Army at Bataan, on the Philippines. American and Philippine POWs were forcibly marched through the jungle to a temporary internment camp until they could be transported to Japan where they were subjected to further torture, degradation, forced labor, and starvation.

We neighborhood kids -- we who never had experienced the horrors of war -- could still see how the horrors of war changed a man when we saw our Bataan Death March survivor on the sidewalks in our neighborhood. Never speaking, never engaging, walking, walking, walking, and always wearing that 1000 yard stare. Harmed greatly, but apparently quite harmless, he just marched ... as though Bataan was just one long and forced march away. He truly was harmless, although we had a brief scare when he stood outside our home and stared in a bedroom window, startling one of my older brothers.

The reason for his brokenness becomes clear when you read the stories of those who died told by those who, they say, wished that they had died. One survivor, Glenn Frazier, revealed some of the horror when he was interviewed for a special by PBS. You can read a transcript of his story and view the excerpt here.

The abuses and atrocities committed by Imperial Japanese forces included:

• Raping natives who gave water to the prisoners of war being forced marched.
• Pulling soldiers at random from the line, some for beheading (sound familiar?), and others for bayonet practice. 
• Refusing to allow those marching to stop, so that they had no choice but to march as they defecated and urinated on themselves.
• Failing to provide medical aid and care to sick and wounded soldiers.
• Denying basic sanitation and water to POWs.

As odd as it sounds, these acts of brutality had been contemplated before they occurred.

I refer not to the likelihood that Japanese military personnel sat around their huts and tents thinking through how they might degrade, abuse, and murder particular prisoners of war. Rather, what I have in mind is that, in 1929, the United States, and many other nations, including Japan, became signatories to a "Convention Relating to the Treatment of Prisoners of War ... by the respective Plenipotentiaries of the United States of America and forty-six other countries, at Geneva." The entirety of the Convention is available to review here. The Convention takes less than twenty minutes to read in its entirety.

I should clarify that what the signatories to the 1929 Convention contemplated was the certainty of future armed conflicts. Given that certainty, they planned for it by laying ground rules for the treatment of those who by misfortune of war would become prisoners of an opposing nation. Little about the 1929 Convention directly predicts the stunning brutality of the Bataan Death March.

So, we were introduced, as kids in our neighborhood, tangentially, to just how terribly broken a man can be made to become by captors that despise him for surrendering, deny basic necessities to him, march him and his fellows till they collapse, execute those that fall, behead some as warnings, murder others to keep bayonet skills sharp, and inflict rape and murder on sympathetic local populations. Now, to be clear, we did not know all of that at the time. We just knew that he survived "The Bataan Death March."

And the kind of treatment to which Bataan Death Marchers were subjected actually was anticipated, and the prevention of such treatment was contemplated, by the Convention Relating to the Treatment of Prisoners of War. Japan's signature to the treaty, as it turns out, was not worth the paper on which it was written.

A world away and over a half century later, we are watching the last act of a horrible crime committed during war time in Iraq play out in an American military courtroom. That horrible crime, that military drama, reminds us all that there really can be only two kinds of war. 

One, as we have seen played out by terrorists who wear bombs to cafes, bus terminals, mosques, and public places, by madmen that fly airplanes into landmark towers, by the disturbingly evil who release Saran gas in transit stations. That kind of war knows no rules; it recognizes no boundaries except abject surrender. 

The other kind, the kind a Marine brat like me wants to believe is possible, the one that we want to believe our fathers, our uncles, and our brothers fought, and that our mothers, our aunts, and our sisters too now fight, is according to rules and principles of war, usually set out in international agreements designed to prevent harms to protected persons and civilian populations.

There is that scene that the contemplation of a rule of war brings to mind. It is Shakespeare, that old dead white guy, so some of you may be tempted by his irrelevance to your life to click through to the next post or meme. I wish you well on your journey. For those that have stayed, remember the battle at Agincourt, in Henry V, where the French forces in overwhelming numbers are outmatched by the English under Henry's command.

As the smoke and fog of battle is clearing, two Englishmen discover that a group of French deserters broke through the English lines, and, rather than attacking the English army, they murdered the young boys that served as camp aides to the knights and soldiers, and the other camp followers that had stayed behind during the battle. Fluellen, a Welshman, is outraged at the heinous act:

FLUELLEN

Kill the poys and the luggage! tis expressly against the law of arms: 'tis as arrant a piece of knavery, mark you now, as can be offer't; in your conscience, now, is it not?

GOWER

'Tis certain there's not a boy left alive; and the cowardly rascals that ran from the battle ha' done this slaughter: besides, they have burned and carried away all that was in the king's tent; wherefore the king, most worthily, hath caused every soldier to cut his prisoner's throat. O, 'tis a gallant king!

Act IV, Scene VII

And there you have it. Even a Welshman is surprised to find the errant knavery of breaches of the laws of war amongst his French enemies. That law of arms, or what we call the Law of War, serves to limit conflicts in time, in scope, in targets. The Law of War protects the weak and vulnerable, including the elderly, infirm, sick, children and other non-combatants.

Unfortunately for all involved, in 2006, a Marine non-commissioned officer and his scouting party ignored the Law of War. They directly contravened it. Hutchins and his men were tasked with clearing an insurgent resistance in the Hamdaniyah region of Iraq. The apparent intention was to make a lesson for Iraqis regarding the planting of improvised explosive devices. No doubt they had good intentions of using their actions to send a message to those that were involved in that form of resistance to discontinue.

But rather than fully prosecuting an engagement plan against an insurgent involved imminently in planting an IED, they engaged in a murderous shortcut, an elaborate ruse of murder to imitate life. They kidnapped Hashim Ibrahim Awad from his bed. They bound him and carried him to a site where they would create the scene of Awad's supposed IED planting. They shot Awad while he was bound, and killed him. Then, after he had been killed, they reported their "discovery" of an insurgent planting an IED. One of the appellate court's that reviewed Sgt. Hutchins' previous conviction summarized the crime this way:

The appellant was assigned as squad leader for 1st Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th Marines, assigned to Task Force Chromite, conducting counter-insurgency operations in the Hamdaniyah area of Iraq in April 2006. In the evening hours of 25 April 2006, the appellant led a combat patrol to conduct a deliberate ambush aimed at interdicting insurgent emplacement of improvised explosive devices (IEDs). The court-martial received testimony from several members of the squad that indicated the intended ambush mission morphed into a conspiracy to deliberately capture and kill a high value individual (HVI), believed to be a leader of the insurgency. The witnesses gave varying testimony as to the depth of their understanding of alternative targets, such as family members of the HVI or another random military aged Iraqi male. 

Considerable effort and preparation went into the execution of this conspiracy. Tasks were accomplished by various Marines and their corpsman, including the theft of a shovel and AK-47 from an Iraqi dwelling to be used as props to manufacture a scene where it appeared that an armed insurgent was digging to emplace an IED. Some squad members advanced to the ambush site while others captured an unknown Iraqi man, bound and gagged him, and brought him to the would-be IED emplacement.

The stage set, the squad informed higher headquarters by radio that they had come upon an insurgent planting an IED and received approval to engage. The squad opened fire, mortally wounding the man. The appellant approached the victim and fired multiple rifle rounds into the man’s face at point blank range.

The scene was then manipulated to appear consistent with the insurgent/IED story. The squad removed the bindings from the victim’s hands and feet and positioned the victim’s body with the shovel and AK-47 rifle they had stolen from local Iraqis. To simulate that the victim fired on the squad, the Marines fired the AK-47 rifle into the air and collected the discharged casings. When questioned about the action, the appellant, like other members of the squad, made false official statements, describing the situation as a legitimate ambush and a “good shoot.” The death was brought to the appellant’s battalion commander’s attention by a local sheikh and the ensuing investigation led to the case before us.

Here we are, having been told just recently that, were they at liberty to do so, senior military commanders would describe Iraq as a "quagmire." Just the same description that was used for how bogged down we became in Vietnam, and how bogged down the Soviet Union became in Afghanistan. And now we face again the morale damaging problem of a senior non-commissioned officer having led the Marines under his command far afield morally, having misguided them as to acceptable actions under the law of war.

By doing so, Hutchins put in jeopardy the lives of other American military personnel, and American civilians. He accomplished that unfortunate result by casting an image of the American military as defiant of the very laws of war that we have affirmed and to which we have, through our government, committed ourselves to follow. His conviction and punishment is a necessary step in reversing that mistaken message.

Hutchins should be drummed out of the Corps. For his motto, when he chose to murder a civilian, and when he choose to order his Marines to cover up his crime, became “Fie Semper,” rather than “Semper Fi.”