Tuesday, February 28, 2006

Guardian Unlimited | World Latest | Supreme Court Backs Abortion Protesters

Guardian Unlimited World Latest Supreme Court Backs Abortion Protesters

An article on the case refusing to apply RICO to pro-life protestors.

Good news on RICO application

The Supreme Court is really on a roll of late. Released today is another good decision of the court in which all the justices taking part in the decision were unanimous in doing the right thing. In Scheider et al v. NOW the court has ruled that the anti-racketeering law, RICO, designed to go after organized crime, was not intended by congress to allow a "freestanding physical violence offense" unrelated to other classic organized crime contexts. In other words, RICO should not be applied to protestors for life and against abortion (or others exercising the right to free speech) so long as they do not engage in robbery or extortion (easy to avoid in pro-life protesting).

This is good news in several ways. First, pro-life protestors should not be treated like the Mafia. Government should not punish good. Second, RICO should only apply to real racketeering. It's use for other purposes is beyond the intent of Congress, the clear meaning of the act, and an equitable application of the law. Third, this opinion is more evidence that the Roberts court has a new commitment to playing by the rules and applying the law properly. Three cheers!

Monday, February 27, 2006

War time wiretapping cont. II

Applicable Laws Must Be Determined
At the link rep. Dan Lungren has a good article on the war powers justification for wiretapping possible terrorist communications.

Lungren says:

"The unique role played by the president in the conduct of war and over foreign affairs has long been recognized in the American legal and historical tradition. John Jay, who served as both secretary of State and as chief justice of the United States, suggested in Federalist paper No. 64 that the president would be best suited “to manage the business of intelligence in such manner as prudence may suggest.” Similarly, the Supreme Court acknowledged presidential power is greater over foreign affairs than over domestic policy, stating, 'The president is the sole organ of the nation in its external relations and its sole representative with foreign nations.'"

He also quotes Byron White from Katz v. United States:

“Wiretapping to protect the security of the nation has been authorized by successive presidents. The present administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate’s judgment if the president of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.”

As I have argued in an earlier post, and comments have agreed, the currently controversial program for wiretapping international phone calls from or to suspect people are clearly legal despite political attempts to argue otherwise.

Tuesday, February 14, 2006


Ethics and government are two ideas that ought to go together since human government is about promoting the common good and restraining evil and ethics are about the very definitions of good and evil. But so often we see that it is difficult to obtain ethical behavior from those in government or aspiring to government. Solomon in ancient times wrote “In the place of judgment wickedness was there. In the place of justice, wickedness was there.” Solomon also said “If you see the poor oppressed in the district and justice denied, do not be surprised at such things for one official is eyed by a higher one and over them both are others higher still. The increase of the land is taken by all. The king himself profits from the fields.” In our own times, corruption has not been absent. In 1905, George Washington Plunkitt, a politician involved with New York’s Tammany Hall, gave a series of interviews to William Riordon that became first a series of newspaper articles and later a book entitled Plunkitt at Tammany Hall; a series of very plain talks on very practical politics. Plunkitt expounded what he called “honest graft,” an opportunity to use politics to legally enrich ones followers and then in turn to use their favors to obtain and maintain power. While the newspapers complain of such approaches, political science classes everywhere often teach that this is what government is all about: dividing the spoils - whether between parties or classes.

The experience of the last two decades seems to show that corruption is not necessarily the creature of one or the other political parties, but rather a disease that tends to afflict whichever party is in power at the time. Is there no way to deal with this pandemic problem? Is it inevitable? Is it something about which the Christian can do nothing? We cannot make a fallen world unfallen. There must nevertheless be ways in which we can resist evil and advance good even in government.

Christians have approached government and ethics in three different ways. Some Christians have simply said that government is inherently a dirty business and that Christians should stay out of it. They have contented themselves with “speaking truth to power” while allowing that power itself to be dominated by those whose natures lend themselves to corruption. Another approach has been to assume that there are simply two different sets of rules for Christian living and worldly living and that government is in the category of worldly living. In this category, people simply expect that government is a dirty rough and tumble business and that while Christians may play a little bit more fair, they are still going to need to “get their hands dirty” as a matter of being involved in government as good citizens. There are obvious problems with this view when we consider both the unity of virtue and the biblical requirement to bring every thought into conformity to Christ. A third approach has been to assume that Christians can and should reform government. But all too often the reformers have been corrupted rather than succeeding in reforming the government.

Regardless of philosophical approach, something has ultimately been wanting in the pragmatic reality of Christians in government. What have we been doing wrong and what should we do now? Now is the time for us to do something. Christians now have a greater influence in our society than they have had for many years. They have a great deal of leverage in both political parties, but especially in the political party that is currently in power in Washington. Now is the time to act, but exactly how should we act?

Perhaps one of the root problems is our view of “ethics.” Dennis Prager has often said that “law school takes people who think morally and trains them to think legally.” Instead of asking whether or not something is moral, people who have gone to law school tend to ask the question of whether or not it is legal. And the question of whether or not something is legal, for an attorney, is usually not a black and white question. It is really a question of what kinds of arguments can be made to defend the practice and the probability that those arguments that those arguments will succeed in preventing undesirable consequences for the parties in some way charged with having engaged in improper conduct. All too often, lawyers hear what their clients want to do, then try to figure out ways to tell their client they can get away with it rather than advising their client that the conduct is not for the common good and should be avoided. When people engage in the use of power, they assume that it is appropriate for them to enrich themselves and their compatriots provided that they do so within the law. They then seek to do everything they can do to the end without getting indicted or fined. The results are usually that they do things that they claim were proper, but that one or another prosecutor claims to be improper. The result that follows is scandal, name-calling, mud-slinging and a general debasement of the whole political process. Perhaps part of the problem here is the view and understanding of the ethics that control behavior and government as relating to legality.

Perhaps real ethics for politicians and the wielders of power should not be seen as relating to legality but rather than to morality. Politicians and their minions need to be looking to the nature of God Himself and His commands rather than to the likelihood they will be fined by court order.

Instead we need to be asking how God expects people to act and how God expects governments to behave. We then need to strive to follow those examples. The difficulty comes in the willful ignorance of some people regarding God’s moral standards though they are not complex or difficult to understand, and the question of punishing people for violating those standards. Because God’s law is perfect, it is inevitable that people will fall short of its requirements. We cannot punish everyone in politics all the time. So how can we encourage people to strive to meet an ultimate standard when we cannot punish them for every failure? How too can we get people to recognize and advocate the true requirements of the moral law? In our post-modern society, people have become adept at denying their knowledge of the very moral principles written on every heart evident in nature itself and rearticulated clearly in the scripture. We assert the power to change the meaning of words themselves. In a sense, part of the battle over ethics in government is related to the battle between relativism and the logos doctrine, the belief in the existence of truth and the rejection of anything as true, the belief that right makes might, vs. the belief that might is the ultimate justifier.

To make things even more difficult, our schools and universities teach the post-modern legalistic and morality-free view of government, politics and mankind in general. They encourage students to believe that texts have no inherent meaning and hence can be shifted by those in power to cover or not cover whatever activities they seek to condemn or to exonerate.
Perhaps there are even more issues involved than these. Somehow a serious dialog needs to be started among believers about exactly how we can make a practical impact on this problem in our generation. While we face many difficulties in our society, all of them are affected by this attitude toward ethics. We send men and women to Washington to protect the United States from its enemies, to advance the common good, to restrain evil among us, and to eliminate the great blights upon our generation such as abortion, deadly experimentation upon human beings at early stages of development, the saturation of our everyday lives and experience with encouragements to immorality and instability. But instead of dealing with these difficult issues and acting upon the great problems of our time, they become mired in the search for loot and the fulfillment of self interest. So mired they are distracted from their true business and spend day after day, hour after hour pursuing things we do not want or need and ignoring the very things necessary to secure the life of our republic and the good hopes we have for future generations.

To discuss this issue, Trinity Graduate School and Trinity Law School, of Trinity International University, are planning a conference on Ethics and American Government to take place in February of 2008. They hope to make this a national conference with influencers, decision makers, and the wise among us coming together to address this issue. We are just begining to plan the conference. Your comments and ideas are welcome.

Monday, February 13, 2006

BreakPoint | Is the Supreme Court Really Supreme?

BreakPoint Is the Supreme Court Really Supreme?

At the above link is Chuck Colson’s Breakpoint essay about how Lincoln resisted the decision of the Supreme Court in Dred Scott. Lincoln continued to treat black Americans as full citizens despite the implications of the Dred Scott ruling to the contrary. Behind this resistance is not merely the fact that in Lincoln’s time the executive had a stronger will with respect to the Supreme Court, but also a difference in judicial philosophy.

Today the predominant legal philosophy is positivism. Positivism is the idea that the law is whatever legislatures and judges say it is. In the past, men such as Lincoln and Martin Luther King Jr. took the view that human law had to comport with the boundaries set for it by God’s law in order to be valid or legitimate. As a result, there are times when an act of a legislature or a judicial decision, though handed down with proper respect for appropriate procedures, can still “not be the law” because it is contrary to the clearly expressed law of God. At Trinity we still follow Lincoln and King. We train our students to understand the dominant positive worldview and to work within in, but we also want them to understand the natural law view and that it is the best and most appropriate view.

If the American legal system is going to be reformed from its current crisis, it will be necessary to defeat both the view that law is whatever judges and legislatures say and the view that moral principles evolve and change over time. Law can only be repaired if true timeless moral principles rooted in the nature of God Himself are brought to bear as mooring points to keep the law within its proper bounds.

If a president resists the Supreme Court in reliance upon the divine law revealed in scripture and in general revelation, then he is doing it based upon a higher authority. The same thing is true if the courts strike down an act of the legislature as violative of the right to life or the right to free exercise of religion. The law of God as well as the Constitution are higher laws than the statutes passed by the legislature. If the court or another branch of government seeks to assert authority purely on its own power, this leads to problems. But if the exercise of power is grounded in a genuine higher law, then it is proper.

Thursday, February 09, 2006

Political footballs and constitutional law - Los Angeles Times

Political footballs and constitutional law - Los Angeles Times

The above link to Rosa Brooks’ article in the Los Angeles Times, Political Footballs in Constitutional Law, discusses the current lack of clarity in the field of constitutional law. Brooks points out that Lawrence Tribe is not publishing a revised version of his constitutional law treatise because he “can no longer figure out how to write a treatise on constitutional law.” Tribe is well-known as a constitutional law scholar. But he has admitted on occasion that he has no coherent philosophy of law. He basically decides what outcome he wants in each individual case and then comes up with whatever argument may seem to justify that outcome. Sometimes Tribe argues for the plain meaning of the Constitution like a loyal textualist. Other times he completely rejects the obvious meaning of the Constitution and takes a radical post-modern approach seeking through law power to create due rights or destroy traditional ones present in the text. At other times, Tribe may make arguments from the common law or ignore the common law. He is a chameleon who matches his color to the background he wishes to inhabit. Tribe is not alone.

In our post-modern age, the use of philosophical coherence, principle, and a systematic philosophy is becoming less and less common. But this is not the great liberating feature that post-moderns claim. Instead, the lack of objectivity and the lack of stability create additional tension, violence and conflict, since there is no principled way for parties to argue their way to a common solution if the only thing they have behind their arguments is sheer desire.

Brooks interestingly enough concludes that “constitutional interpretation is best understood as a form of theology rather than law.” Certainly I have to agree that in reality, constitutional law is tied to theology. A constitution is the fundamental law of a nation. But constitutions are dependent upon the natural law for their authority and existence. Natural law in turn is a reflection of general and special revelation. General and special revelation reveals the character, nature and will of God Himself. So to make a long story short, all law is in some way connected to theology. Constitutional law more so because it is a step closer to theology than, say, statutory law or case law.

Once understood this way though, the result can be the return of relative certainty. There are basically three kinds of situations of interpretation. One if where the human law is clear and there are no moral implications to the application of the human law. In that case, the natural law and the Constitution usually require us to merely apply the plain meaning of the human law. If the law in question is the Constitution, and the meaning of the Constitution is clear and carries no major moral baggage, then it is clear that the plain meaning of the Constitution should be applied unless and until it is amended according to the appropriate processes.

The second category is where the positive statements of human law may be clear, but they run into problems with a higher law. For statutes or case law, the Constitution is such a higher law. For the Constitution itself, the natural is also a higher law. Human laws have to be interpreted and applied so as to stay within the boundaries of the general moral principles that God has given us. While that sounds complicated, it is not particularly difficult. Most moral principles are extremely simple in nature. Sometimes their application to human law may be difficult. But as Harry Truman said, the main problem is not knowing the right thing to do. The problem is doing the right thing once you know what it is.

The third category of legal interpretive situations is perhaps larger than the second. This is the category of situations in which the Constitution or statute provides no single despositive solution and in which there is no morally required single solution. There are times like this. There are times in which a court has discretion to effectively make a common law decision through the application of reason. Because reason is part of the law itself, the court’s decisions are not considered ex post facto decisions, even though they involve an exposition of the law that reflects public policy choices.

One of the mistakes that advocates of God’s law in the setting of human law have made in the past is to deny that there is sometimes more than one right answer to a constitutional or a legal question. It is undeniably the case that there is occasionally more than one right answer. And sometimes there is no perfectly desirable answer. Applications of the law are often choices between evils or choices between indifferent schemes rather than clear choices between something that vindicates the good and something that destroys it. That is what makes judging and the law challenging and complex.

By the same token, the common mistake of the secularist is to think that there is no situation in which God’s laws should have any impact on decisions about human law. To take that position is to leave a nation open to the grossest injustices both in individual cases and in the system that will result from the obnoxious habit of treating human will as if it was the divine will. It is also a mistake of both those who believe in the divine law and those who believe in positive law to neglect the area in which there is genuinely not one right answer but a series of policy choices that each has advantages or disadvantages.

The balanced view of human law needs to keep track of all three of these fields of decision making. It must understand when each situation is the situation we face and when it is not. Imparting that kind of understanding and perspective is one of the things we try to do at Trinity Law School. We do not want our students to become rigid positivists who are only capable of a formalistic understanding of human law. Neither do we want our students to be theocrats who constantly argue that there is one divinely sanctioned solution to any legal problem. Such is clearly not the case. But we also, most of all perhaps, do not want our students to be post-modern lawyers who think that human law is clearly about power and sorting out the conflicting desires of various individuals. Instead, they need to understand and be able to properly discern and blend the application of God’s law, texts, and reason, both to predict what courts would do and to advise them of what they should do.

Tuesday, February 07, 2006

Wartime wiretaping cont.

On Monday morning I was able to listen to a small amount of the testimony in the hearings related to the wiretapping of terrorists under the War Powers Act. Despite my generally cynical feelings about the politicians in Washington, D.C., I continue to be shocked when I actually listen to their hearings.

I mentioned on a previous post that the kind of limited wartime wiretapping being done by the administration is clearly covered by the president’s war powers. And those war powers are ever more clearly in effect because of the resolution following 911 giving the president the power to essentially undertake a war against the Islamic terrorists attacking the United States. In addition, FISA does not really cover or contemplate the kind of situation or the kind of tactics being used in the anti-terrorist wiretapping. If it was necessary to follow the FISA rules, it would make the current program impossible.

The testimony of Attorney General Gonzalez was also fairly compelling. He was correct in saying that if the administration had come to the Congress to request legislation, it would have been doing something inappropriate and unnecessary in addition to taking the risk of alerting the terrorists to exactly what is being done and how. Certainly this entire “scandal” has already cost us a great deal in the way of actionable intelligence now that everyone is alerted to the existence of these wiretaps.

The senators’ willingness to stretch the truth and mischaracterize the program and the circumstances under which it has been undertaken was shocking. Their unwillingness to admit that legislation going on in Congress is subject to leaks to the public which could result in help to our enemies was also amazing. They actually seem to believe that the Congress was good at keeping secrets; something that is clearly not the case. The senators’ main concern was not actually legality or whether or not the current program was acceptable or desirable. Many of the Democratic senators as much as admitted that they thought that the current program should continue and should not be in any way ceased or curtailed. Their real objection was that they had not been asked for permission. The senators seemed to believe that the executive branch cannot do anything without an expressed authorization from Congress. And they seem to believe that any executive power must be in some way delineated and authorized by the Senate. They did not seem to believe that the president actually has powers that are under the Constitution and limited by the text of the Constitution. Perhaps this is because they and the judges that the left has supported so often pay so little attention to what the Constitution actually says anyway. But then even those on the right occasionally fail to pay as much attention to the constitutional text as they should. In the end, the senators mainly seem concerned about increasing the power of the Senate and about using this situation for political gain rather than about a legitimate inquiry into the powers of the president, or a legitimate inquiry into the expediency of the program as a part of the war.

It is inevitable that if the Congress seeks to create legislation to describe, limit and regulate the war powers of the presidency, they will essentially undermine those powers and usurp them. This has already happened to a certain extent with the War Powers Act and with FISA itself. It would be a mistake to expand that congressional control during a time of war. But it seems evident from the Senate hearings that the senators have more concern over whether some Americans are overheard in their business transactions or talks with loved ones than with whether or not Americans are killed. This seems like a strange set of priorities.

War powers are simple. They involve the ability to direct armies, navies and similar forces in seeking out and killing enemy combatants who are not already hors de combat. Those forces rendered hors de combat must be captured rather than killed and treated according to humane standards. It is also lawful to destroy the machines and material used by enemy forces to support their war effort. And it is also appropriate to destroy communication provided to the enemy forces in order to create confusion and immobility in the enemy. All of this involves not only the direction of force, but the gathering of intelligence to know how to direct that force. Classically, the gathering of intelligence has always included not only the disposition, location and nature of enemy forces, but an attempt to intercept commands and communications to and from enemy forces. That is exactly what’s happening in the international terrorist wiretapping described by the Senate hearings. It is a classic effort to intercept enemy communications.

No one should think that because civilians are involved in the loop that this makes the communications in any way protected. Think about enemy soldiers taking a rest in a tavern and talking to the tavern keeper or to civilian guests. Normally any military spy or civilian spy would be happy to collect whatever intelligence was available from their discussions. This is the sort of thing that’s been done for thousands of years. When those discussions take place over the airwaves, they are not only easier to intercept, but it is surprising that anyone would actually believe that they would be private during wartime. There is no reasonable expectation of privacy for a wartime communication with those who are the enemy or who abide in the region of the enemy. If I was making calls to people involved in radical Islam in Pakistan, I should be quite shocked if my telephone calls were not in some way intercepted and checked.

Simply because international communications with possible terrorists can be eavesdropped on during time of war does not mean that America has suddenly become a police state. Americans can still only be charged with crimes that are crimes under the laws of America. They can still only be tried only in American criminal courts under the rules of criminal procedure and the Constitution. They cannot be convicted with evidence that is inadmissible under the Fourth Amendment. Current government has not even undertaken measures that have been undertaken in the past such as the temporary suspension and modification of habeas corpus or the regulation of the press. Instead, these freedoms have been preserved even though they were suspended at times during previous wars. All in all, I am disappointed by the attitude of the United States Senate and the paranoia of the American left. While we all should be eager to preserve our freedoms under the Constitution, we should not be eager to distort the Constitution and attempt to turn our tripartite republic into a system involving parliamentary supremacy.

Friday, February 03, 2006

BreakPoint | Prescription for Tolerance

BreakPoint Prescription for Tolerance

The linked article from Break Point is another example of how when government rejects moral boundaries it is not increasing freedom. It is making us less free when freedom is considered in the global sense.

C.S. Lewis was very much opposed to the idea of "treating" criminals as though their choices to commit crimes were a disease. Such "treatment" never ends and has no real limits once the state has decided the end justifies the means. By contrast, retributive and deterrent punishment are meant to "fit the crime" and tend to have inherent limits.