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March 31, 2005

Bracewell & Giuliani

This'll really only be of interest to my Texas chums: Rudy Giuliani will be heading up the new New York office of Texas-based firm Bracewell & Patterson; only the firm will be changing its name to Bracewell & Giuliani.

Yesterday he hadn't practiced law in twelve years; today he's a name partner. Not bad!

Posted by David Mader at 09:12 AM | Back to Main

March 29, 2005

'Avowed Arch-Conservative'

In the course of a whiny editorial, the Baltimore Sun writes:

President Bush has been increasingly aggressive, however, about trying to pack avowed arch-conservatives on the federal appellate courts, where much of the case law is written.
Now I'm sure that many - even most - of the President's judicial nominees are open about their conservatism. But I'd wager that fewer than five would voluntarily declare themselves to be 'arch-conservative,' especially seeing as the term tends to be one of derision. More likely, the Sun is simply getting carried away in its outrage. Sloppy.

Posted by David Mader at 09:03 AM | Back to Main

March 28, 2005

What About the Violinist?

American Scene's Ross Douthat has an interesting post on the logical consequences of the pro-life position. He repeaats the eminently logical argument that there's no inconsistency in opposing abortion and supporting the death penalty, given the moral innocence of the subject of the former and the moral culpability of the subject of the latter.

He also has this to say about the one frequent 'exception' to anti-abortion positions:

The "rape-and-incest" exception is a trickier matter, but as someone who does think abortion is murder, I still think having the exception makes a certain amount of legal sense -- for reasons, actually, that are often mistakenly used to justify legalized abortion in general. The argument goes something like this: Suppose you woke up and you'd been hooked up, without your consent, to the unconscious body of a concert violinist. You were then told that for the next nine months, he would be attached to you, sucking nutrients from you, and so forth, and that if you disconnected him before the nine months were up then he would die. It would be morally heroic to stay attached to him, but it isn't clear that the law should force you to do it.
This is a common hypothetical, and it's all very well and good, except that it takes precisely no account of the rights and interests of the concert violinist. (Interesting, by the way, that the violinist is stipulated to be 'unconscious'. Does that affect our moral reasoning? Should it?) In fact, I'd think that the common law would approach the hypothetical situation through a consideration of the duty owed by the woman to the violinist, and a further consideration of the balance of interests at play. Of course, pro-choicers do not recognize an interest on the part of the 'violinist,' but those who do should probably logically support at the very least a balancing mechanism for determining whether the inconvenience (to put it mildly) of child-bearing outweighs the interest of the 'violinist' in life. And while the law should probably not compel a woman to support the violinist in the hypothetical, it might well impose a legal punishment upon her for deciding to terminate his life.

Posted by David Mader at 08:58 AM | Back to Main

March 24, 2005


Regarding the Apple v. Bloggers issue, and the notion of a 'journalist's privilege' more generally, see this article by Rep. John Conyers supporting the extension of such a privilege to bloggers. Two notes:

First, I'm all for equal treatment; I don't think journalists should be treated different than bloggers - or anybody else, for that matter. I ust think that the standard of treatment should be pegged at a lower level.

Second, Conyers talks about 'journalists' privilege' as an element of the First Amendment (freedom of the press, presumably). I haven't studied First Amendment jurisprudence, a fact that's probably obvious from my discussion of these issues, but the Constitution does give the courts a right to involve themselves in the question. I would still argue, however, that they shouldn't, and that precedent to the contrary should be reversed. Eliminating the privilege would in no way limit the freedom of the press; reporters - and all others - could continue to publish all they can now; and sources would be as free as they are now to approach the press. The only difference is in effect - the press would be free to publish the same content, but would in practice have less of that content available as a result not of government coercion but of the interest-balancing of the source. (I don't hold government refusal to grant a specific privilege to be a coercive act, but I'm sure this would be a point of significant contention). The Constitution guarantees a free press; it does not guarantee an active press, or a luctrative press, or an interesting press. That's up to the press; like the sources, the press needs to grow up and stand on its own, without government interference to its detriment or its benefit.

Posted by David Mader at 11:28 AM | Back to Main

Sullivan's Quote of the Day

Here it is:

Here's the question I ask of these right-to-lifers, including Vatican bishops: as we enter into Holy Week and we proclaim that death is not triumphant and that with the power of resurrection and the glory of Easter we have the triumph of Christ over death, what are they talking about by presenting death as an unmitigated evil? It doesn’t fit Christian context. Richard McCormick, who was the great Catholic moral theologian of the last 25 years, wrote a brilliant article in the Journal of the American Medical Association in 1974 called "To Save or Let Die." He said there are two great heresies in our age (and heresy is a strong word in theology — these are false doctrines). One is that life is an absolute good and the other is that death is an absolute evil. We believe that life was created and is a good, but a limited good. Therefore the obligation to sustain it is a limited one. The parameters that mark off those limits are your capacities to function as a human.
The quote is from the Jesuit Rev. John J. Paris; the emphasis is mine. Sullivan says he 'couldn't agree more.' But what does the quote tell us? That at the end of the day life is only worth preserving when the individual has the 'capacity to function as a human.'

It should be obvious, I think, that many people will disagree over what constitutes a capacity to function as a human. Is an ability to feed one's self necessary? Even if we discount infants as (for some reason) necessarily worthy of life, what do we do about the infirmed and the disabled? And so on - I'm sure you can come up with your own logical extensions.

But at the end of the day that's not the question. The question is, who should make that determination? Who should have the power to say that an individual lacks the capacity to function as a human, and so should die? Schiavo's husband and parents both claim the power. The courts - and Congress - have claimed a qualified power in order to determine the validity of the husband's claims.

What does Rev. Paris' quote tell us about who should make that decision? Precisely nothing. But Sullivan seems to take as assumed that Schiavo lacks the 'capacity to function as a human' - and that his determination, which accords with that of Rev. Paris, and of Schiavo's husband, should control. All he lacks is an argument.

Posted by David Mader at 09:45 AM | Back to Main

March 23, 2005

Children of Privilege

Matt e-mails:

I followed the links on your post titled Apple v. Bloggers, and, while I'm sure you're right that Apple is none to pleased about the characterization of the case, I would assume, based on what I read, that you would be on the side of Apple in this case, given the implications for protection of property, especially when "confidential journalistic sources" are involved.
Matt's half-right. I do indeed agree with the outcome of the case (as I understand it): I don't think bloggers and other online publishers should enjoy any 'privilege' allowing them to conceal sources of published information when the identity of such sources is material to a civil suit or a criminal prosecution.

But I differ from the court in that I don't think journalists should enjoy such a privilege either. 'Journalist's privilege' distorts what would otherwise be a straightforward rational incentive process; I think that any distortion of that process necessarily involves the application of policy; and I think that the legislature is the only proper forum for the creation of such a policy (although I would oppose its creation even in the legislature).

'Journalist's privilege' is most often justified on the grounds that it encourages individuals to divulge information which they would not otherwise divulge if they were not assured anonymity. Eliminating such a privilege, proponents say, would quiet many voices to the detriment of society as a whole.

The argument is not, to my mind, persuasive. In the absence of a privilege, an individual with information he wanted to divulge would have to weigh the benefit of approaching the press with the consequences of the approach. This would, admittedly, prevent many individuals from taking that step, and much that would otherwise be published would not be published. But the information that would no longer be published would theoretically be the information the divulging of which was less important, to the possessor, than the consequence. For instance, a White House intern would be unlikely to leak to the Washington Post if he knew that his name would appear next to his quote, that he would be fired because of it, and that the firing would more or less end his hopes of a successful political career.

But some information would continue to be published - that information the divulging of which the possessor held to be more important than the consequence. Presumably Daniel Ellsberg believed that the value of leaking the Pentagon Papers was greater than the risk that he would be jailed for the rest of his life as a consequence - and yet he leaked the papers anyway, and eventually turned himself in.

'Journalist's privilege' essentially forgives the leaker the consequences of his actions. I think that's bad policy. Of course many will be uncomfortable with a rule that leaves potentially important information in the hands of vain men who value their jobs over some greater, perhaps national, interest. That concern might counsel towards a middle-ground, something in between a total privilege and total transparency. But wherever the line is drawn, the act of drawing it must necessarily reflect a policy consideration. The line itself says 'this is the extent of activity the consequence of which we will forgive.' It's not for judges to draw that line and make that statement.

If the legislature did act to effectively eliminate the consequences of leaking by concealing the identity of sources - and the Federal Whistle-Blower Statute does essentially that, I believe - the courts should (indeed, must) respect that policy determination. But until that policy determination is made by the legislature, neither journalists nor bloggers nor any others should be able to shield individuals from the consequences of their actions. Time to grow up and face the music.

Posted by David Mader at 07:35 PM | Back to Main

Does the Death Penalty Deter?

That's the argument here, a summary and precis of a new paper by Cass Sunstein and Adrian Vermeule. Have a look; the take-away quote must be the suggestion that "on average, each execution results in 18 fewer murders."

Like Volokh, I support the death penalty on the basis of what he calls 'retribution,' which I would call 'consequence'. If the penalty also happens to deter potential criminals, I suppose that's nice as well; but because I'm generally uninterested in the deterrent effects of the penalty as a justification, I'd just as soon pass the issue over. But, as Volokh points out, deterrence is held to be among the highest justifications for any criminal punishment by an awful lot of people; those people (or the subset of those people who oppose the death penalty on such grounds) might want to think twice after reading the new paper.

Posted by David Mader at 07:29 PM | Back to Main

Apple Computers v. Bloggers

That's a characterization of the lawsuit that should really make the honchos at Apple cringe.

Posted by David Mader at 11:10 AM | Back to Main

March 22, 2005

It's All Relative

Howard Basham:

Indeed, because only two of today's reversals were via unanimous judgments, and none were "summary reversals," today doesn't even qualify as a bad day at the office for the Ninth Circuit.

Posted by David Mader at 10:17 PM | Back to Main

And Now, a Rap About the Conservative Predicament

I'm telling you, Reihan Salam is a gem. (Scroll down to the bottom of the post.)

(Then scroll back up and read the whole thing. And liberal readers take note, as I'm about to offer a rare criticism of President Bush: Reihan's right.)

Posted by David Mader at 05:56 PM | Back to Main

The EU's Double-Edged Sword

Opponents of the European Union have warned that the trans-national 'government' would trample on national legislation, ignoring local wishes even in the absence of a Europe-wide consensus. To date, most of these opponents have been politically conservative, and their fears have centered on 'conservative' issues, such as criminal justice and property rights.

But leftists may soon be joining the anti-EU ranks:

Europe will quietly press ahead with authorizing more genetically modified (GMO) crops, if necessary without the blessing of EU governments or the majority of European consumers, the EU's executive said on Tuesday...

Green groups say the Commission's pledge to return to "business as usual" on GMOs flies in the face of public opinion — although the biotech industry disputes this — since most EU consumers oppose GMOs, calling them "Frankenstein foods."

A largely unelected central bureaucracy running roughshod over the desires of component constituents? Perish the thought!

And you really have to wonder what genius in Brussels thought to press this issue in the weeks prior to France's vote on the EU Constitution.

Unless, of course, Brussels sees the referendum process as an irrelevance.

Posted by David Mader at 12:17 PM | Back to Main

March 21, 2005

Abortion and the Future of the West

Regular readers know of my passion for the writing of Mark Steyn, Canada's finest export. Regular readers also know that Steyn is renowned, such as he is, as much for his style of writing as its substance. But Steyn's piece in tomorrow's Telegraph is extraordinarily thought provoking:

Almost every issue facing the EU - from immigration rates to crippling state pension liabilities - has at its heart the same glaringly plain root cause: a huge lack of babies...

[H]uman inventiveness depends on humans - and that's the one thing we really are running out of. When it comes to forecasting the future, the birth rate is the nearest thing to hard numbers. If only a million babies are born in 2005, it's hard to have two million adults enter the workforce in 2025... If that's not a political issue, what is?

Putting aside the debate over the conflict of rights that is central to the abortion controversy - if such a thing is possible - Steyn may be correct that the (arguable and, to my mind, likely) consequence of abortion - fewer people born - has now and will continue to have a detrimental effect on the west's ability to resist the cultural pressures that present obstacles to the triumph of democracy and a liberal world order in the twenty-first century and beyond. It's something to ponder.

Posted by David Mader at 09:41 PM | Back to Main

Just One Little Thing

This editorial cartoon from Tuesday's Telegraph makes a point I've heard elsewhere - that it's somehow hypocritical of George Bush (and by extension many American conservatives) to both oppose depriving of Terry Schiavo of her feeding tube and support capital punishment. At its most complex, or the most complex I can render it, the argument is that one who legitimately opposes the deprivation of the feeding tube must, in the interest of logical consistency, oppose the deprivation of life in cases of state-mandated capital punishment.

The distinction seems so glaringly obvious that I'm worried I'm missing the real argument; because, of course, Terry Schiavo didn't murder anyone. That seems a pretty fundamental distinction to me. The opposition isn't to the loss of a life as such; it's to the loss (or taking) of an innocent life. Unless we want to get into a debate over the reliability of the American capital justice system - a debate that does not speak to the innate propriety or impropriety of the death penalty - that distinction is conclusive.

UPDATE (22:30 CST): Reihan Salam, easily the most amusing blogger on my roll, makes a similar point. Also, he raps. And discusses New Jersey. All in that same post.

Posted by David Mader at 09:08 PM | Back to Main

Judaism, Israel and Politics

The Volokh Conspiracy's David Bernstein recounts this interesting tale:

My wife and I were in Ann Arbor this past weekend looking at rental houses for the coming academic year. On Saturday, as we drove past Ann Arbor's only biggest synagogue (Beth Israel), we noticed a small motley group of protesters holding up some placards outside. On closer inspection, it turned out that they were anti-Israel activists, who decided that the appropriate time and place to express their views was outside a synagogue during Sabbath morning services.
Bernstein focuses on the inappropriateness of protesting a Synagogue on the Sabbath, and of course I grant him that. But what I find interesting about the protest is not just the time but the venue. Bernstein cites an Al Jazeera article apparently by a protest ('vigil' he terms it) organizer, explaining the decision to demonstrate outside of a Synagogue:
The goal is to stop U.S. funding of Israel's violent Occupation, now into its 37th year. To achieve this goal, we've got to get Congress to stop funds, and to stop signing those Nancy-Pelosi-we-stand-with-Israel resolutions that pop up every time AIPAC thinks their ox is gored. To get congress to stop funding, we've got to get AIPAC to reduce their lobbying efforts. To get AIPAC to stop lobbying, we've got to address the people who support AIPAC, The Jewish Federation, etc. And to get the people's attention, we've got to go where they go.

And they go to synagogue.

I'm honestly not sure how I feel about this. My initial reaction is that protesting outside of a Synagogue in opposition to the State of Israel lays bare the connection between anti-Zionism and anti-Semitism. After all, American Jews are not Israelis, and targetting American Jewish places of worship in an effort to affect Israeli policy would seem to be a simple manifestation of an erroneous equation of the two.

On the other hand, the argument is fairly rational: Israel policy is influenced my American government support; American government support is influenced by American Jewish lobbying; American Jewish lobbying is influened by the opinions of American Jews; American Jews congregate at Synagogues; and so the single most effective venue for the changing of American Jewish minds - thereby affecting lobbying, American support and Israeli policy - is the Synagogue.

The logic is sound, and I think many Synagogue-attending Jews, especiallly theologically conservative Jews, would have to recognize the connection between modern Jewish religious expression in America and a support for the State of Israel. Think pledge cards on Yom Kippur.

But this connection between Jewish expression and support for the State of Israel, and the recognition of that connection by the State's opponents, only serves to demonstrate the clear connection between Judaism and Zionism. That connect, made explicit, is simply this: Zionism is a central tenet of (normative American) Judaism. American Jews do not, of course, blindly or overwhelmingly support one or another Israeli political party. But American Jews do tend to support the State of Israel in its conflict with the Palestinians. Expressions of anti-Zionism - properly defined as an opposition to the continued existence of the State of Israel - can therefore be seen, in a certain sense, as expressions of anti-Semitism, given the centrality of support for the State of Israel to normative Judaism, at least in America.

Posted by David Mader at 01:47 PM | Back to Main

Kyrgyzstan Teeters

The President of Kyrgyzstan has ordered a review of the recent general election following widespread opposition protests and statements from international monitors that the elections were not free and fair.

Sound familiar?

Here's your CIA backgrounder. Note that Kyrgyzstan is a Muslim nation.

Are these opposition protests the real democratic deal - a Central Asian response to the Rose/Orange/Cedar revolutions? Is the ordered review a legitimate expression of reform or a calculated attempt to blunt protests? And can a popular opposition succeed without the sustained western media coverage, and resultant international attention, enjoyed by the Ukrainian and Lebanese movements?

Posted by David Mader at 01:38 PM | Back to Main


As many of you know, my father passed away suddenly two weeks ago. I've been rather busy since then, as you can imagine, and am now a little busy once more catching up with school here in Austin. But I do want to keep the blog going, and will do my best. Please continue to stop by for new posts.

And a big, big thank you to everyone who's helped me through this difficult time. This is an impersonal medium, and I'll be conveying more personal thanks in time, but because so many who've been there for me are Maderblog readers, I thought it would be appropriate to acknowledge everyone here. Thanks.

Posted by David Mader at 01:34 PM | Back to Main

March 03, 2005


Instapundit highlights a StrategyPage analysis of the situation in Syria:

The elder Assad's untimely death put Bashar in command, but not in control, of Syria. His dad's cronies control most of the bureaucracy, armed forces and security organizations. There is no agreement among all these chiefs about what to do to stay in power. Thus we have the bizarre contrast of Syrian police turning over Saddam's half-brother and 30 of his henchmen, while Syrian agents facilitate the assassination of a prominent anti-Syrian Lebanese politician, and a suicide bombing inside Israel. All within two weeks.
The actions of the past two weeks don't seem like the actions of a single government, let alone a tyranny. I don't mean Syria wasn't involved; I mean Syria-as-Syria wasn't involved. I think we're seeing Syria fall apart. We're seeing at least two factions in operation, and I don't know enough about Syria to identify them; I'd think that the security services are one, the military a second, and the 'terrorist community' - your Islamic Jihads and Hizbullas and various other local offices - a third.
Well, I got the parties wrong. Still, not bad, I'd say.

Posted by David Mader at 10:41 AM | Back to Main

March 02, 2005

Further Thoughts on Roper v. Simmons

(Much) earlier this morning I chimed in with my preliminary thoughts on the Supreme Court's Simmons decision striking down state laws imposing capital punishment on capital convicts between the ages of 16 and 18. My focus was on the dictum of the opinion which addressed international norms. ('Dicta' are holdings of the court that are not material to the decision. Any holding which is not required for the court to decide as it does, but which the court announces nonetheless, has less precedential value - is in fact non-binding - but often indicates how the court expects it will hold in future cases.)

The material issue in the case is the meaning of the Eighth Amendment's prohibition on 'cruel and unusual punishment.' Although the Bill of Rights, when ratified, did not apply to the states, it has been 'incorporated' into the Fourteenth Amendment's guarantee of due process and now applies to the states as well as the federal government. At the end of the day, the case comes down to this: many states do not believe that execution is cruel and unusual when exacted upon capital convicts between the ages of 16 and 18. The Supreme Court disagrees. The Supreme Court, being the supreme interpreter of the Constitution, gets to have the last say.

If interpretation is a simple matter of subjective discretion, then, even a traditional approach to the Constitution would allow the Supreme Court to hold as it did. The matter is complicated by the path the Supreme Court has taken in its past interpretations of the Eighth Amendment. As best I can tell, it has decided over a series of cases that the meaning of 'cruel and unusual' changes over time, and that the Supreme Court will exercise its discretion on the basis of the 'trend' in interpretation it sees in the states. The word 'trend' is important, because the standard is, for lack of better word, vectoral. It's not enough that, say, twenty-five states ban a particular punishment, if there has been no increase in the number of states implementing such a ban over the past X number of years. On the other hand, the fact that a number of states have instituted a ban on a particular punishment in a relatively short period will be taken as evidence of a trend for the purposes of interpreting the Eighth Amendement, even if a substantial number of states have not instituted such a ban.

There's an obvious problem with this approach - in that it's a one way street. It assumes that states will only ever move towards a ban on certain punishments. Once a sufficient number of states have instituted such a ban in a certain period of time, the Supreme Court will act, and its actions will preclude the possibility of ever finding a contrary trend. It will thereafter be impossible for any one state, let alone the magic number necessary to denote a trend, to repeal a ban on the punishment. As a mechanism to judge the mood of the nation, then, the Court's approach is fundamentally flawed.

The Conspiracy's Orin Kerr has his own critique on this point:

[E]vidence of changing attitudes in years following the crime and conviction can be used to trump then-governing law. This seems to be what happened in Roper. In 1989, the Court held that it was permissible to execute persons for murders committed at the age of 16 and 17. In 1993, Christopher Simmons committeed his heinous murder, and in 1994, Simmons was convicted and sentenced to death. Then, in the 11 years after Simmons was convicted and before the Supreme Court decided its case, 4 states decided end potential juvenile capital liability... The action of the 4 states then became the basis for an alleged "consensus" in the direction of ending the juvenile death penalty.
Sounds like an ex post facto law to me; but apparently that doesn't apply.

Eugene Volokh uses the Roper decision to discuss conflicting interpretations of the US Constitution by state and federal courts. In this post he discusses why a state court would use the federal rather than the state constitution; in this post he discusses why a broad interpretation of the federal constutution by a state court might not be as objectionable as a broad interpretation by the US Supreme Court.

My impression is that the important factor in evaluation is the relativity of the broadness of interpretation. Here's what I mean: if a state court's interpretation of the US Constitution is more broad than that of the federal Court, the consequence is that the one state offers a 'protection' to its citizens that is broader than the national standard. While there might be ideological objections to the judicial creation of such protections, those objections will be limited, and the effects of the decision will be limited, to a single state. On the other hand, when the US Supreme Court adopts an interpretation that is broader than that adopted by the states, the effect is to raise the national bar; indeed, I suspect that advocates of such decisions would say that's exactly the point. And maybe that gets us to the root of the disagreement - whether a determination of a subjective standard such as 'cruel and unusual' should be left to the people of the states or should be nationalized by the federal judiciary.

Needless to say, I'm with the states.

Posted by David Mader at 10:57 AM | Back to Main

More on Simmons

I've just finished reading Justice Kennedy's majority opinion in yesterday's juvenile death penalty case. (It's on Westlaw, for the law-school types, as 2005 WL 464890).

It's an interesting opinion, and one I'll continue to think about. One preliminary thought: there's been considerable discussion about Kennedy's reference to international standards. He's at pains throughout the relevant section of the opinion to indicate that the policies of other countries do not control the decision of the court; but he acknowledges that they 'provide respected and significant confirmation for our own conclusions.' That's fair; but if it's the case, Kennedy and the court should give as much regard to the manner in which foreign nations have acted as to the outcome of their actions. My point:

As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter. In 1930 an official committee recommended that the minimum age for execution be raised to 21... Parliament then enacted the Children and Young Person's Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense.
The operative word in that excerpt, of course, is Parliament. In a jurisdiciton with a single code of criminal law, opposition to capital punishment for juveniles was raised in the legislature, debated in the legislature and ultimately addressed in and by the legislature through a change to the law.

That is precisely the opposite of what the Supreme Court does here. In the United States, every one of fifty individual jurisdicitons, each with its own code of criminal law - including punishments - has had a debate within its body politic over the propriety of putting juveniles to death. In the past fifteen years or so, as the Court points out, a number have changed their laws as Great Britain did.

And now that procedure has been arrested by the Supreme Court. No longer will American jurisdictions be able to follow the global jurisdictions which the Court cites so approvingly. Or how many of them abolished the juvenile death penalty through judicial fiat rather than legislative decision?

And that's the problem with the decision at the end of the day. Kennedy makes a very, very good case for the abolition of the death penalty for juveniles. It's the kind of thing we'd expect, and hope, to hear in our state legislatures. And it's the kind of thing that, now, we never will. That's troubling; and to the extent that the Court's Eighth Amendment jurisprudence is consisent with that silencing of the democratic process, well, that's troubling too.

Posted by David Mader at 12:48 AM | Back to Main

March 01, 2005

This Sounds Good

AP: 2,000 Demonstrate at Iraqi Bombing Site:

More than 2,000 people demonstrated Tuesday at the site of a car bombing south of Baghdad that killed 125 people, chanting "No to terrorism!"
Targetting Iraqis has always seemed to me to be a marvellously stupid strategy, and I think it only gets more ridiculous as Iraqis begin to see how disputes can be resolved through the nascent political process without resort to murder. If it is to be a civil war - which I don't believe - I'd put my money on those represented by the two thousand who flooded the street to chant 'no to terrorism,' and not those few who are carrying out the attacks.

Posted by David Mader at 01:58 PM | Back to Main

Supreme Court Spares Teen Murderers

The Supreme Court of the United States has declared unconstitutional state application of the death penalty to murderers who were between the ages of fifteen and seventeen at the time of their crimes. Howard Basham has the links.

I don't see why this is a judicial question. I haven't read the opinion - I will certainly try, this afternoon - but I'm not sure how this could come out to be anything but a subjective determination of the meaning of the Eighth Amendment's prohibition on 'cruel and unusual punishment.' The execution of teenage murderers may be cruel - although I don't see how it's any more cruel that the execution of adult murderers - but if ever a Constitutional provision was subject to popular rather than judicial interpretation, this would seem to be it. On the other hand, perhaps no Constitutional provision should be left to popular interpretation. Interesting question.

But I think the point here is that the execution of teens seems no more cruel, when considered in isolation, than the execution of adults; and surely this argument will be made - almost immediately - by lawyers representing adult murderers seeking to avoid their popularly determined fate. One needn't make a slippery-slope argument here - this is straight logic.

But I'll go read the opinion - you should too - and I'll get back to you.

Posted by David Mader at 09:39 AM | Back to Main