Haleigh Poutre

Haleigh Poutre

This is a link to a daily Standard article on what happens when an abused young girl falls into the warm and loving hands of the state.

They set her up with adoptive parents that apparently beat her severely. And, when she ended up in the hospital in the proverbial "vegetative state" the state af Massachusetts quickly sought judicial permission to end treatment and kill her via dehydration or lack of oxygen.

Providentially, she seems to be recovering, and plans for her death are now on hold. But what if the courts had moved faster and she had been killed before improvement manifested itself?

BreakPoint | Milling About

BreakPoint Milling About

Here is a link to a break point article about the influence of J. S. Mill on the law. I agree with the linked article. So often today when people talk about "freedom" they mean license to be free from law, morality or criticism when they engage in immoral actions. They seek protection for what they subjectively label "good."

The Christian world view of the Bible takes a different view - the view that there are objective moral principles and goods. Proper civic freedom is the freedom to choose among objectively good goods - not the ability to force the state to recognize and support the mislabeling of evil or detrimental activities.

Behind this debate is the question of whether objective goods and morality are accessible to fallen sinful human beings. Again the classic Christian view, based on the inferences taken from the Bible, is that objective morality and objective goods are accessible through general and special revelation - what God has communicated to us through various means, with the Bible as the last word.

Some Christians have questioned our ability to understand revelation because humans are so good at ignoring, suppressing, and lying about it. They then either join the skeptics or expect a central authority like the papacy or the academe to sort it out for them. But classical orthodox biblical Christianity, that of Augustine, Luther, Calvin, and others, has believed we all can understand what we need to know in revelation (including morality and the means to be saved from our immorality through Christ) based on the divine light - the general revelation God gives to all, and the special illumination he gives to those who believe in him. In short, God makes knowledge of moral principles and ideas like justice, truth, and beauty accessible to all who are willing to understand.

Human government, while free to do many things in many ways, should observe the limits created by God's objective moral principles. It should encourage good and discourage evil. It cannot of course require all good, or punish all evil because humans are all sinners. But it can restrain some evil and facilitate some good. But it should never publicly label evil as a good or require actions contrary to God's moral law, as is now happening in the areas of abortion law, homosexuality, and some kinds of actions that have wrongly been labeled as protected "speech."

In short, I believe true Christianity takes issue with Mill and his views. Government should be based on objective goods and morality as we can best see them, not idiosyncratic wills and appetites. To paraphrase Lincoln, government should do the right as God gives us to see the right.

Telegraph | News | Police warn author over gay comments

Telegraph News Police warn author over gay comments

This linked article (hat tip to geopolitical review who linked it first) discuses the Scotland yard investigation of an English author and broadcaster because she had the audacity to claim that it might be wrong to place a young boy with two male homosexual "parents." In some of the comments to past articles we had a debate about how the decision of American courts to "advance liberty" by promoting homosexual conduct to a privileged status may not advance everyone's liberty (and indeed freedom to do wrong is not real liberty). The court's position is likely to limit the freedom of those who maintain and advocate objective moral principles. This article is an example of how that limitation of freedom is already occurring in the UK.

House Republicans Seek New Leadership Below Speaker

It is reported by one of my contacts in Washington D.C.
that Representatives Dan Lungren (R-CA) and John
Sweeney(R-NY) are circulating a petition among the House Republican
conference calling for an election for all Republican leadership positions
(excluding the Speaker, who is elected by the full House and not the
Republican Conference). The House Republican Conference(which includes all
House Republican Members of Congress) will meet on February 2.

This is welcome news here considering the problems the current leadership has had making progress in important areas.

Movie Review: End of the Spear

Over the weekend I saw The End of the Spear. The film was well executed. The acting was excellent. The script was well written. The sound track was a little too mushy in spots, but was not bad. The film is too violent for young children and does involve skimpy jungle clothing (but it is not sexy). I recommend seeing this film.

Too often films about Christians are stilted and lacking in subtlety. Poorly made films forfeit the powerful affect film can have when it makes us think and feel in ways we might not otherwise have experienced. Thankfully this film is an exception. We see and understand a part of the gospel with the people in the film. The film leaves a positive impression and a desire to know more instead of a feeling of being preached at.

I have seen comments in the secular media attacking this film for being like the stilted and preachy films of past evangelical film making. I think those remarks are wrong. Some people will object to any film that makes Christianity a real part of real life because they cannot connect the Christian world view with reality. This film does show how Christianity really did impact the lives of very real people in a very good and very real way.

Power Line: Hayden Delivers Impassioned Defense of NSA

Power Line: Hayden Delivers Impassioned Defense of NSA

Here is a link to an edited version of Hayden's speech with additional comments.

War Powers Wire Taps

Above is a link to a speech by former NSA head Gen. Hayden on wire tapping under the war powers as opposed to FISA. Hayden provides unprecedented detail and rational.

My running opinion remains that the program is legal under the President's war powers. Congress has known about this , the 9-11 committee recommended a similar program, no American citizens are being prosecuted with the data, most ordinary people think we do far more domestic spying than we do, and there is no reasonable expectation of privacy in an intentional communication with a party with whom the US is at war.

The Ayotte Case - a Small Step

On January 19, 2006, the Supreme Court released its opinion for Ayotte, Attorney General of New Hampshire vs. Planned Parenthood of Northern New England et al. The case was argues in late November and achieved a unanimous opinion of the Court. Sandra Day O’Connor wrote the opinion; very likely one of her last as a Supreme Court Justice. The Ayotte case concerned a New Hampshire statute: the Parental Notification Prior to Abortion Act. The Act provided the criminal and civil penalties against physicians performing an abortion without 48-hour written notice of the abortion to a parent or guardian. There were exceptions to the notification requirement based on an eminent threat to the lift of the pregnant minor, a notice from the parent that they have already been notified, or a judicial bypass in which a judge can approve the abortion without parental notification. The judicial exception required that a judge be available for consultation for a consultation by a pregnant minor 24 hours a day, 7 days a week. During oral argument, the judges had made a great deal out of this judicial bypass asking repeatedly why a health problem for the minor could not be dealt with through a quick phone call to a judge. But in the end, the Court decided the case on other grounds.

The lower court had declared the entire act unconstitutional and permanently enjoined in forcing the act. The district court held “that the act was invalid for failure, ‘on its face…to comply with the constitutional requirement that laws restricting a woman’s access to abortion must provide a health exception.’” The lower court thought that the judicial bypass was not expeditious enough for a “medical emergency.” The district court also thought that the difficulty of determining whether or not a medical condition was life threatening would also be chilling for physicians trying to utilize the life threatening medical condition exception. The Court of Appeal for the First Circuit upheld the decision of the district court. The Supreme Court of the United States then granted cert to hear the case. In the court’s opinion, the Court did not revisit the whole question of abortion or the states’ ability to regulate abortion. Instead, the Court proceeded from the position that the entire appeal could be disposed of on a semi-procedural ground.

Writing for the unanimous Supreme Court, Justice O’Connor identified the Court’s general attitude toward declaring statutes unconstitutional: Generally speaking, when confronting a constitutional flaw in the statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force,…or to sever its problematic portions while leaving the remainder in tact…” The Court noted that here it might have been possible to do just that, to enjoin only the unconstitutional applications regarding the few instances in which there was an imminent threat to a minor’s health that would be interfered with by a 48-hour delay for parental notification or even a short delay for judicial bypass. The Court noted that there was a possibility that the statutory intent of the New Hampshire legislature would show that they would rather have no statute at all than have part of it enjoined and part of it active. As a result, the case had to be sent back to the lower court to determine which was more appropriate, a limited injunction or the elimination of the entire statute. There was also a question expressed by the respondent concerning the confidentiality of the judicial bypass provision. The Court concluded by saying, “Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the act’s life exception. We therefore need not pass on the lower court’s alternative holding. Finally, if the act does survive in part on remand, the court of appeals should address respondent’s separate objection to the judicial bypass confidentiality provision. The judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.”

What should we think of the Court’s opinion in Ayotte? Why were they able to obtain a unanimous decision in this case? The news media have been indecisive in reporting this matter. To some degree, they have emphasized that it is an upholding of abortion. To some degree, they have been concerned that the Court did not agree with invalidating the entire statute. In general, there has been some perplexity concerning exactly why this case came down the way it did.

Ideally, of course, it would have been nice if we had obtained an opinion from the Supreme Court stating that unborn human beings are human beings, and that as such, any statutory scheme which contemplates the taking of their lives with malice of forethought without legal justification or excuse violates the equal protection clause of the Fourteenth Amendment and the natural law/common law right to life that all human beings have and that is incorporated in the Constitution of the United States by the Ninth Amendment of the Bill of Rights. Such a holding would have invalidated all statutory schemes that allow abortion without special legal justification of excuse. But there is probably no chance of getting a ruling like that out of this Supreme Court. Five of the Justices on the Supreme Court favor abortion. The remaining four have generally said in their comments that they believe whether or not abortion is legal is an issue for the states. If they believed that there was a right to life for the unborn, they could not merely make it an issue for the states. So it is unlikely that we will get an invalidation of abortion law out of this Court anytime in the foreseeable future apart from a major shift in the gestalt of the majority of the justices. Even if Judge Alito is confirmed on the Court, that enough will not change the balance on abortion. Alito is likely is likely to join the block of justices that believe that abortion should be a matter for the states. But he would not produce an automatic majority in favor of returning abortion to the states. Justice O’Connor whom he replaces has not wanted to return abortion to the states, but there are still five remaining justices who believe that abortion should be a federal constitutional right.

Nevertheless, I think that there is some reason for abortion foes to be happy about Ayotte. In the past, the federal courts, including the Supreme Court of the United States, have consistently ignored the rules that they have for evaluating the constitutionality of statutes and for the remedies that flow from evaluating the constitutionality of a statute in the context of abortion cases. The courts have consistently acted to hear cases regarding statutes limiting abortion, even though there was no real case or controversy involved since the statute had not yet been applied to sanction anyone criminally or civilly Instead, the federal courts had developed a special habit of allowing people to challenge the constitutionality of entire statutes regulating abortion through the mere allegation that the statute in some way created a chilling effect to an abortion provider’s willingness to provide abortion on demand. The courts have then consistently invalidated entire statutes rather than limiting their injunction to the allegedly unconstitutional applications of the statute. A good example of this has been the way the federal courts have treated the partial birth abortion statutes passed in numerous states. The federal courts have uniformly allowed challenges to those acts based merely upon the alleged chilling effect of the statute, even though no one had ever been prosecuted for providing a partial birth abortion. For almost any other kind of statute, the courts would have wanted to see how the statute was actually being applied, and would have asked the question of whether it was unconstitutional as applied or would have wanted at least a genuine case in controversy before they opined on the constitutionality of the overall language of the statute. So the courts did not follow their normal approach to the constitutionality of statutes in the partial birth abortion context. Then when the statutes were found by the court to threaten or chill some possible abortions that the court thought must be allowed under the Supreme Court’s precedence, they did not merely enjoin the states from misapplying their law. Instead they invalidated the entire statute. The Supreme Court of the United States upheld one such wholesale elimination of a statute in Stenberg vs Carhart 530 US 914 (2000).

Here in the Ayotte opinion, the Supreme Court turns back to applying its special rules regarding remedies for an unconstitutional application of a statute even in an abortion case. The Court does not admit that it is reversing a past standard. Instead, they distinguish the cases in which statutes were wholesale invalidated by saying that the states had not asked for the remedy of a partial injunction in those cases, but had instead wanted no statute rather than part of a statute.

What is important here is that the Court has decided to apply technical rules to limit the outcome in a case regarding a statute limiting abortion rather than using the kind of wholesale statutory invalidation that has been common heretofore. While this is only a small improvement, it is nevertheless an improvement. If the courts begin “playing by the rules” even in abortion cases, this is going to result in a higher probability that statutes regulating abortion will be upheld. It is also going to mean that as in the New Hampshire case, it will be possible for statutes to have some effect rather than no effect at all. While this is not a revolutionary watershed, it is a beginning. It is like the first drop of water from an icicle as the weather begins to change from the dead of winter to the brightness of spring. It is a sign of hope that perhaps with respect to American law regarding abortion, it will not remain “always winter but never Christmas.” While we may have a long battle ahead of us with not only the Supreme Court but the states and public opinion, it may be that perhaps the spell of abortion is finally beginning to weaken.

I suspect that this new and novel result is largely because of the new influence of Justice Roberts on the High Court. Roberts is apparently very much a technician who has great expertise in the intricacies and details of the law. The disposition of a case based upon technical grounds like this is the sort of thing that Roberts is likely to engineer as a compromise among the various justices. Here it pleases the liberal justices because no wholesale attack is made on abortion precedent. It pleases the more conservative justices because abortion is inched back toward being an issue which is considered under the normal rules of the law rather than an issue which is given special favor and accorded irrational and emotional power over the courts. In short, while the Ayotte case seems like a very small matter, I think it is, in fact, a sort of a victory. We’ll have to wait and see exactly where things go from here. But to return again to the Narnia metaphor, perhaps this is a shadow of a rumor that with respect to abortion “Aslan is on the move.” I hope and pray that it is so, and that God will turn the hearts of our people back to Him about abortion and about law.

Alito in review

Over all I was fairly happy with Judge Alito's answers during his hearings. It is better for a judge to emphasize the law rather than emphasizing outcomes or the status of litigants. I am comfortable that Alito will follow the law as he understands it. But we will need to pray he will understand the law correctly. I hope he will be a vote to overturn Roe. I also hope he will support religious freedom.

I am a bit concerned with some of his answers on police issues. In a police shooting case Alito did not emphasize the need for the use of force by the police to be proportional. I do of think the police should use deadly force in cases of property crimes unless it is in response to escalation by the suspect. Alito was also very slow in admitting that if a person who has exhausted their appeals has new evidence clearly proving their innocence, they should not be executed. Alito was correct be concerned about the procedural setting of the hypothetical case, and whether there really is actual proof of innocence, but he could have approached his answer differently, by emphasizing first instead of at the last, the goal of our justice system not to punish truly innocent individuals.

All in all I hope Alito works out well. But Supreme Court judges are human. And history is full of surprises with nominees. I hope Alito's surprises are all good instead of bad.

Dennis Prager on law and morality

Dennis Prager

Today on talk show host Dennis Prager's show he revisited a topic he speaks on periodically - the way the left separates law and morality. Prager believes the average law school education encourages people to stop thinking morally and instead to think legally. If something is legal it must be ok. Conservatives who have not been to law school do not tend morally. If something is wrong it is wrong. If something is legal it still might be wrong. At Trinity we reinforce the importance of morality rather than substituting legality as a primary standard.

Prager believes the idea that legality is primary is in evidence among the Democrat Senators in the Alito hearings. Prager also noted another disturbing trend among some members of the Judiciary Committee: some of their questions seemed to indicate they saw law and judging as a means of helping the little guy and fixing society. By contrast, the Bible, and centuries of western jurisprudence, require unbiased treatment of all. Neither rich nor poor should have an advantage due to their wealth or poverty.

I call this the difference between event driven justice and status based justice. Biblical ideas of justice, and the normative traditional view of justice in the west is that justice is about what happened. Who did what? Is what they did a violation of the law? Was their a legal justification or excuse for what they did under the circumstances? By contrast, many people are tempted to substitute status based justice - even though it is not just at all. Status based justice asks who the parties are instead of what they did. What group does the plaintiff belong to? Is the defendant a good person? Is one party a big business? Is one party a benefit to the community? Advocates of status based "justice" seek the outcome based on the status of the parties instead of acts and omissions of the parties. Avoiding the temptation to drift toward status based judgments is a major part of maintaining a good justice system. At Trinity, I try to ensure that all our students understand this fundamental difference in approach.

BBC NEWS | Health | Animal eggs 'to grow stem cells'

BBC NEWS Health Animal eggs 'to grow stem cells'

Here is an article which brings up two problems with cloning research.

First, cloning a human requires a human egg. These are in short supply. In fact, if a therapy were to come out of cloning research the need for massive numbers of human eggs might well make it impractical, or, worse, result in pressure to enslave or commodify women for their eggs, especially in societies where women are already subject to discrimination.

To get around the egg problem some scientists are trying to clone with animal eggs - hence this article on human cloning with rabbit eggs. But there are severe ethical problems with combining human parts and animal parts. We do not know the significance of the egg beyond DNA and mitochondria. But in general it is morally suspect to "break" God's categories by combing humans, created in God's image, with animals, which are not.

Laura Ingraham show mentions law schools affects

Laura's Official Home On The Web

Today on the Laura Ingaham radio talk show Laura interviews an author with a new work on law school as a recruiting ground for left wing radical activists. It is true that many, but not all law schools have a radical left wing flavor. Even some of those "on the right" also advocate an amoral view of human law. Marxism and radical post modernism are common at top law schools. The idea that law and morality are separate and not to meet is common at many as well.

Trinity Law School is different in this respect. We have a diverse faculty and student body, but all of our faculty are committed Christians who try to teach about law from a Christian world view. Our philosophical teachings emphasize the idea that human law should be within the boundaries of regarding objective good and restraining objective evil.

Alito Hearings

This morning I have been able to listen to some of the hearings for Judge Alito. I have three new observations.

First, I have to admit on all the resume issues he does seem to have been an overly ambitious person. But perhaps everyone in D.C. has a similar problem.

Second, he is mopping the floor with the committee. Alito is answering more questions with substantive information than many other judicial candidates. And he is politely refuting the implied premises of his attackers well. A good example this morning was the discussion of Presidential powers. Alito made it clear the President is bound by the constitution and laws of the US, but may not always be bound by the will of congress if the constitution does not support the congress. Yet Alito was artfully in never directly saying there were limits to congressional power.

Third, I hope Alito will not turn out to be like Kennedy and O'Connor. His answers are sometimes a bit too flexible for comfort. I would like additional assurance he is a principled man and not a pure pragmatist both in life and in law. But that said, I have hope he will turn out well. He probably deserves the benefit of the doubt.

Alito Hearings

I have been trying to listen to the hearings for judge Alito. They could be the subject of endless commentary. I will resist and comment on only a few matters.

First, the Senators show a lay persons view of the law too often. A Senator will describe some horrible set of events - innocent people at gun point or strip searched children - and then essentially say of the judge "why did you not make sure the victims of this situation won their lawsuit." But the purpose of courts is not to just give money to people who have been discomforted. Not all wrongs on this earth have or should have a legal remedy. And often, court of appeal cases are about particular legal issues - not about the whole set of events that befell the parties. The strip search of the ten year old was a good example. The case before the judge was on the proper understanding of the search warrant - not on whether innocent ten year olds should be strip searched.

Second, it is surprising that the left - the very people who normally have little or no respect for precedent - keep asking judge Alito to follow precedent. They want him to respect the decisions of the court like ROE and CASEY that arguably have no basis in the constitution, simply because of precedent.

Case on "In God We Trust" on Money

For years there were false rumors about challenges to "In God We Trust" on money in the US. Now it has happened. Pacific Justice Institute, a first amendment public interest law organization with an internship program here at TLS has become involved. Today they sent out an e-mail explaining the case.

"The lawsuit, naming the U.S. Congress as a defendant, was filed late last year by atheist minister, Michael Newdow, 52, who is the founder and ordained minister of the First amendment Church of True Science (FACTS). The suit alleges that it would be highly hypocritical for FACTS to accept money that has In God We Trust inscribed on it. Newdow, who is also an attorney, stated that he feels like a political outsider every time I see In God We Trust on our coins and currency, on government documents, and on other governmental locales. He also claims that when he travels to foreign countries and exchanges American currency he is being forced to evangelize for a religious view I explicitly deny."

We are praying to PJI and others to succeed in preserve this vaugue and minimal acknowlegdment of the most important reality - God. The elimination of the phrase would be hostility to the idea that God is a reality and that government, rights, and morality are based upon God's order for the universe. We do well to acknowledge a trust in God.

As for Newdow, I suggest he accept contributions in the form of checks and money orders instead of cash.

My Way News

My Way News - Alito Hearing Article

The link is to a short article on today's hearings on Alito's nomination to the Supreme Court. It emphasizes his comment that a judge should not have an agenda.

Part of what we see in the spectacle of these hearings are two different views of judging one makes judges social engineers. In that view the views of the judge on the future of society are everything. In the other view judges just apply rules according to yet more rules. In this view the judges personal views are unimportant. Judge Alito holds the latter view, and the Senate democrats, the former.

While I believe the second view is the safer of the two views on display, the ideal view of judging is still a bit different. I agree that judges hear the real cases and controversies before them instead of planning social policy and hunting for ways to enact their plans into reality. But a judge, in discovering the law to apply to a particular dispute, must know how to find the real law - the law that is moral, rational, reasonable, and within the boundaries set for human law by God as well as, ideally, within the writings of the legislative branch, the prerogative of the executive, and the consent of the governed. This type of law finding requires practical wisdom, character, insight, vision, and virtue as well as a good education and valuable experience. It relates not to the judges opinions, but to whether he sees things as they really are.

The Pocket Part

The Pocket Part

This is in interesting article, with responses from leading law professors, on the problem of questioning judicial nominees. It is a thorny issue. At one time judicial nominees were simply examined to see if they were bright, good citizens, and well accomplished. This led to a lot of unpleasant surprises. Nice people with a good resume sometimes turn out to have wicked judicial philosophies when they reach the highest human court in the land.

Today the Senators are mostly concerned with the political views of nominees. Will they uphold abortion on demand? Will they favor congressional power against presidential power? Will they maintain the status quo? If they will not maintain the status quo where will they take the country? But this is not easy to find out. How to expose the answers and convince people they are relevant?

Nominees usually refuse to discuss and case that might come before the court. This has the effect of not answering the questions the Senators want answered.

As a result the hearings are usually full of attacks on the nominees character via quilt by association, straw man arguments, and bald assertions of ill will. The nominees, if "conservative" respond that they will "follow the law" and that their personal beliefs are irrelevant. Most post-modernists refuse to accept this answer because they believe judges make up the law as they go based on their personal desires and the desires of the communities to which they hope to belong.

Scholars, like those writing these articles hope to find a way to break the log jam and get real answers. Most of the left leaning scholars want to abandon the practice of not commenting on matters that could come before the court by using discussions of old cases, discussions of clauses, or discusions of history. But all the matters still could make litigants in the future feel that the court is prejudiced because of comments made in such discusions.

A better way to tackle the matter would be a real discusion of judicial philopsophy and herminuetics. But I suspect most of the Senate and most of the audience would not care for or value such a discussion. It would also reveal the unpleasant truths about what people really are usually taught in law school and how in tension that is with common sense about the law and understanding texts and cases.

The Volokh Conspiracy - -

The Volokh Conspiracy - -
At this link Orin Kerr posted a discussion of the NSA wire tapping program and the new book attacking it.
This program does raise some interesting issues. Revealing the program was probably illegal somewhere along the line. And a public discussion of the true details of the program would probably be counterproductive to the current war against the Islamofacist terrorists.
From the little information available the NSA program may not violate FISA, a law governing national security wiretaps, for two reasons: First, the NSA monitoring program probably scans thousands of messages for certain words or numbers, It is therefore not a wire tap of a "particular" person as is forbidden by FISA. Second, the NSA program may be under the aegis of the Presidents war powers. As such FISA may either not apply or be unconstitutional as applied.
Since the NSA data could not be used in a court of law any specific wiretap to be used for legal prosecution would have to be done with a warrant under FISA. The intrusion into the affairs of individual Americans would be insignificant for the most part. And, during wartime there is no reasonable expectation of privacy for communications with enemy agents. As a result of these three facts, there is little chance of a genuine case and controversy arising under the fourth amendment to the constitution.
During wartime past American Presidents have taken far greater liberties with civil liberties than anything currently rumored.
While I am a believer in the right to be free from unreasonable searches and seizures I do not believe the current rumored NSA program is unreasonable. If anyone is prosecuted with its fruits, let the evidence from the unwarranted tap be excluded. But let the monitoring continue for the safety of the people of the Republic!

The Belmont Club

The Belmont Club

Here is a link to a commentary on two other interesting links. All three deal with the death wish of the liberal West. What the West needs is a return to the solid truths of real Christianity - not a distorted self serving kind, not one that repeats the sins of our fathers, but a real Biblical Christianity that changes everything and produces good fruit in society and the world.
The source of the West's problems is belief errors - relativism, skepticism, materialism, hedonism, etc. The only remedy is belief in the truth. Not more of the same errors.