In connection with our law school’s speaker series, we recently had two sessions with Sam Ericsson, the head of Advocates International. Advocates International is a low profile group that works for international religious freedom and human rights. Rather than proclaiming human rights violations in the media, Advocates tends to work behind the scenes to rectify them. They try to serve the justice systems of governments around the world in order to help them do the right thing. Sam Ericsson pointed out that he has had a great deal of success merely discussing the idea of the Golden Rule with ministers of justice and other officials in governments around the world.
Of course, the Golden Rule is a simple idea: “Do unto others as you would have them do unto you.” The logic of this idea is inescapable. We also want to be treated well. There are almost always situations in which each of us is in the position of weakness and someone else is in the position of strength. We want to be treated well by those who are in the position of strength. Hence it is only rational that we should treat others when we are in the position of strength in the same way that we want to be treated when we are in the position of weakness. In terms of religious liberty, this means that if we would like to be able to worship freely and proselytize to convert others to our religion, we should be willing to allow others to worship freely and proselytize people to their religion.
The historical tolerance for religious differences in the West developed exactly for this reason. During the wars following the Reformation, Catholics and Protestants were fighting against each other until they finally came to the realization that if they did not want to be persecuted when they were the minority, they ought not to persecute others while they were the majority. Hence a sort of religious truce was obtained.
The International Declaration of Human Rights and some periods of American foreign policy have sought to spread the same kind of truce worldwide. Some difficulty has been experienced in spreading this idea. In areas where people have experienced the domination of their own religion to the almost complete exclusion of other religions, it still seems possible for them to believe that they can continue to treat other religions as they would not want to be treated themselves because the reverse situation will not occur. Some religions, like Islam, even maintain that other religions must submit or be eliminated.
While religious violence was necessary in Old Testament times to protect the integrity of God’s chosen people Israel in a world full of violent, idolatrous empires, and while religious violence was tempting in times and places where states were each dominated by a single religion which was hostile to the religion held by a country’s “natural enemies,” the Golden Rule is still a dominant principle of Christianity and a principle which ultimately implies a requirement for a certain amount of religious toleration.
There is always a temptation to try to rationalize this. One could say that because Christianity is true and other religions are false, that we should encourage people to believe in Christianity, with all available legal means, on the ground that if we believed something false, we would want people to do everything necessary to bring us into belief in the truth. But I would like to suggest that as far as ideas are concerned, all of us would rather be persuaded rather than converted to an idea at the point of a sword or taxed into belief in an idea by an oppressive government. Even though it is true that we would all like to be led to believe in the truth, and that Christianity is indeed true, it still makes sense to say that because of the Golden Rule we should seek to persuade others to the truth through preaching and example rather than through force or the power of government. In the end, I think that if people understand that Christianity is committed to “gentle persuasion” rather than to the use of force to propagate its ideas, they would be far more willing to believe in the truth of Christianity.
The problem still remains to convince other religions of the need to evaluate truth objectively and to adopt what is true trans-culturally rather than to assume that one’s own ancestors were correct and to use violence to prevent anyone from straying from the ancestral commitment. The very fact that Islam maintains its dominance in many parts of the world, in part at least, by forbidding its adherents to even consider whether or not Islam is true or false, does not make me impressed with the claims of Islam. Undoubtedly, if Christianity were maintained by force, people would have a similar skepticism concerning its claims to truth.
Sam Ericsson made a similar argument about the applicability of the Golden Rule. He pointed out that the first murder in human history—Cain killing Abel, was an act of religious violence since Cain was bitter and jealous over Abel’s successful worship of God and God’s refusal to accept Cain’s heretical worship of God. Cain failed in his worship of God because he sought to offer God fruits and vegetables rather than the blood of a sacrificed animal. This was a failure to take sin seriously. God’s whole point in using animal sacrifice in the Old Testament is that sin is so serious that it can only be atoned for through death—the shedding of blood. Fruits and vegetables are not enough to atone for sin. Of course God Himself ultimately atoned for our sin in the sacrifice of Himself as Jesus on the cross. Jesus, fully human and fully divine, was in a position where it was appropriate for Him to offer a sacrifice to atone for human beings because He was a human being and yet in a position where He had something of enough value to atone for human sin against God because He was God and had a life of infinite value and perfection. In the Old Testament, God required the sacrifice as a foreshadowing of His own sacrifice of Christ upon the cross. Cain was rebelling against God’s appointed means of salvation by refusing to worship God as God sought to be worshipped. He was jealous of Abel’s success with God. Rather than accept Abel’s success and conform religiously, he committed the first act of religious violence by killing his brother Abel. Even today, most religious violence is motivated by a similar rebellion against God’s actual standards and an insistence that we should be able to impose our own religious views on others. As the one faith that identifies and spreads the good news of God’s own sacrifice for our sins, it only makes sense that Christianity cannot and should not propagate itself through religious violence. We have no reason to be jealous of others whose religions are false. Instead, we have reason to pity them and to seek to persuade them with love and kind persuasion.
Undoubtedly, the next thing that will occur to our critics, however, is that if Christianity is a religion of love and does not use force to propagate its ideas, why do Christians insist that human law must still conform to the limits of the moral law? The answer is that the purpose of government is to maintain order and preserve the lives and property of human beings as an extension of God’s governance of the universe. Human law must be merciful because all of us fall short of God’s absolute standard. But human law must also maintain order within the parameters of God’s moral law. Human law must punish evil and reward good. It must not reward evil and punish good. If human law chooses not to reward some good, that is acceptable. If it chooses not to punish some evils, that may likewise be acceptable. But human law cannot transgress the boundaries of the moral law by persecuting those who do good and rewarding those who do evil. In this the government clearly has a different role and purpose than the church. Sam Ericsson spoke about this as well in his visit. He uses a description involving circles to show the idea that there are some areas of life that should be under the authority of the church, some under the authority of government, and some under the authority of the family. There are some areas of overlap and some areas of independence. While I do not find this metaphor of the circles to be ideal, it is nevertheless true that God’s design and purpose for government and His design and purpose for His church are not the same. While the government should not try to convert people or prevent conversions, the whole purpose of government is tied to morality. So governments must act under the guidance of “religious truth” about morality even though they cannot force belief in religious truth about the means of salvation.
Providentially, while human sinfulness in individuals and cultures affects how we feel about and apply moral principles, moral principles themselves are universal. Real wise and orthodox Hindus, Buddhists, Taoists, classic Pagans, Jews, Muslims, and Christians all recognize most of the same moral principles. The real difference is in their views about God, man, reality, and salvation, not morality. When they have differences of opinion about the morality of the act, it is usually the view of reality that is in question. For example, even the Islamo-facists believe it is wrong to kill innocent people – they just do not regard anyone who disagrees with them as “innocent.” While this sort of disagreement is serious, it is not a disagreement about moral principle. It is a disagreement about the nature of God, man, and reality.
So, government should have laws based on moral principles, imperfectly as humans understand the world. But, government should not persecute or compel belief in a particular set of views about God, man, reality, and salvation. It will have to act based on such ideas, it will even have to allow some set of ideas to be taught is school. Because religion is a label for ones understanding of such things, everyone has a religion of sorts, and it is impossible for government to be “neutral” between views about such things as man and reality, the radical liberal dream of government without religion is impossible. Government must make decisions based on the wisdom of its leaders about reality and morality. But it still should not compel belief in a particular religion.
Thursday, March 23, 2006
Monday, March 13, 2006
Rights and wrongs
BreakPoint Give Me Liberty and Give Me Death
Here is a link to a good article on the so called right to die. One of the many reasons we need evangelical Christian law schools is because, not only people in general, but even Christians, have an improper understanding of the whole notion of rights.
There are, in human law, subjective and objective rights. The subjective rights are opportunities, entitlements, abilities, or protected areas created by the government, through positive human law, for the benefit of the common good. One example would be the right to assert the statute of limitations as a defense to a lawsuit filed after the time limit allowed by law. Subjective rights are artificial. They can be changed, added to, or destroyed according to the will of the people expressed through their elected representatives. They should be limited to enactments that are for the common good and that reward good or punish evil. They should not be allowed to reward evil, punish good, or promote purely private gain at the expense of the public and the state. The same things could also be said about state created duties.
Objective rights are the kind most people think of when they mention rights. The Declaration of Independence mentions rights from our creator: those are objective rights. Objective rights come from God. They relate to the kind of thing something is within God's design and order for creation. Because human beings are made in the image of God, and are all the same kind of thing, all sorts of objective rights follow, including, but not limited to, the right not to be murdered, the right not to be injured unnecessarily or unreasonably, the right to worship God, the right to be unrestrained in choosing among goods, and the right to engage in virtuous conduct. Objective rights are predispositions of justice flowing from the divine nature. They reflect things about how God designed humans to function and relate to one another and to the world around them.
Radical autonomy, the basis of the rights claimed by libertarians, is not part of God's order or plan for human beings. While it is true that no human has the authority to order others around and create subjective rights and duties apart from what God defines as a proper human government, God does have a right to govern us. And human laws based on God's laws are binding even when they limit radical personal autonomy.
Community, the basis upon which the left seeks to create endless duties, is also limited by the divine order, and bound to recognize real objective rights and bound to refrain from creating fake subjective rights to do evil.
Under the divine order there can be no right to murder a human being made in the image of God, even if that human being is either yourself or your baby.
Here is a link to a good article on the so called right to die. One of the many reasons we need evangelical Christian law schools is because, not only people in general, but even Christians, have an improper understanding of the whole notion of rights.
There are, in human law, subjective and objective rights. The subjective rights are opportunities, entitlements, abilities, or protected areas created by the government, through positive human law, for the benefit of the common good. One example would be the right to assert the statute of limitations as a defense to a lawsuit filed after the time limit allowed by law. Subjective rights are artificial. They can be changed, added to, or destroyed according to the will of the people expressed through their elected representatives. They should be limited to enactments that are for the common good and that reward good or punish evil. They should not be allowed to reward evil, punish good, or promote purely private gain at the expense of the public and the state. The same things could also be said about state created duties.
Objective rights are the kind most people think of when they mention rights. The Declaration of Independence mentions rights from our creator: those are objective rights. Objective rights come from God. They relate to the kind of thing something is within God's design and order for creation. Because human beings are made in the image of God, and are all the same kind of thing, all sorts of objective rights follow, including, but not limited to, the right not to be murdered, the right not to be injured unnecessarily or unreasonably, the right to worship God, the right to be unrestrained in choosing among goods, and the right to engage in virtuous conduct. Objective rights are predispositions of justice flowing from the divine nature. They reflect things about how God designed humans to function and relate to one another and to the world around them.
Radical autonomy, the basis of the rights claimed by libertarians, is not part of God's order or plan for human beings. While it is true that no human has the authority to order others around and create subjective rights and duties apart from what God defines as a proper human government, God does have a right to govern us. And human laws based on God's laws are binding even when they limit radical personal autonomy.
Community, the basis upon which the left seeks to create endless duties, is also limited by the divine order, and bound to recognize real objective rights and bound to refrain from creating fake subjective rights to do evil.
Under the divine order there can be no right to murder a human being made in the image of God, even if that human being is either yourself or your baby.
Tuesday, March 07, 2006
Progress on the Patriot Act
U.S. House Judiciary Committee
The house judiciary committee is making considerable progress on the Patriot Act. Modifications have been made to answer those concerned about abuses (though none have been shown to have taken place) while doing as much as practicable to protect Americans from terrorist threats. The following press release has been put out:
Sensenbrenner: House Approves Legislation
Completing PATRIOT Act Reauthorization
WASHINGTON, D.C. - The House today by a 280-to-138 margin approved legislation that will complete Congress's consideration of the PATRIOT Act reauthorization by making 3 changes to the House-Senate compromise conference report adopted by the House in December by a 251-to-174 margin and last week by an 89-to-10 vote in the Senate.
House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.), the sponsor of the original and reauthorization PATRIOT Act legislation, stated, "The PATRIOT Act has become a critical tool in America's law enforcement arsenal and a vital deterrent against terrorist subversion. It has made Americans safer, safeguarded our civil liberties, and upheld our constitutional values."
"The Justice Department and other agencies have properly utilized the PATRIOT Act to detect, disrupt and dismantle terrorist cells in New York, Virginia and Oregon before they strike. The PATRIOT Act also has helped tear down the pre-9/11 'wall' that prevented law enforcement and intelligence agencies from sharing critical information necessary to avert terrorist attacks on American soil," added Chairman Sensenbrenner.
The three changes made in the conference committee have been listed by my source as follows:
1. A person receiving a Section 215 order (the so-called business record provision) will have the right to challenge its legality.
2. A person making a disclosure to a third party (where the third party is necessary to carrying out the directions of the order) is required to disclose to the FBI to whom the disclosure will be made. The change in the language creates an exception that disclosure of the identity of an attorney is not required.
3. In general, NSLÂ’s will not apply to libraries since they are not electronic communication service providers (unless of course the library provided the services necessary to be an electronic service provider.
Mysourcee also lists the following Additional Civil Liberties Protections in the new version of the Patriot Act:
"The amended version of the bill contains among other things, the following civil liberties protections:
The Conference Report will sunset in 4 years the most controversial provisions of the Act relating to roving wiretaps, section 215 order (concerning the production of books, records, papers, documents and other tangible things), and the so-called “lone wolf” provisions.
The Conference Report requires that the FISA Court judgeÂ’s order authorizing a roving wiretap to spiffy the identity if known, of the specific target of the surveillance.
The Conference report requires investigators to inform the FISA Court within 10 days when the roving surveillance authority is used to target a “new” facility.
The Conference report explicitly provides for a judicial challenge to a national security letter.
The Conference report also provides for a judicial challenge to a 215 order.
The conference Report explicitly provides a FISA Court judge the discretion to not only approve or modify a Section 215 application, but also to deny the application.
The Conference Report requires that the Section 215 application must include a statement of facts demonstrating the records sought are relevant to an authorized investigation to obtain terrorism or foreign intelligence information.
The Conference report requires minimization procedures to limit retention and dissemination of information obtained about US persons from Section 215 requests.
When documents sought relate to certain sensitive categories of records(bookstore, tax returns, educational and medical records the FBI Director, Deputy Director, or Official in Charge of Intelligence must approve a 215 order or it may not be approved.
A recipient of a 215 order may disclose receipt of the order to an attorney or others necessary to comply with or challenge the order.
The Justice DepartmentÂ’s Independent Inspector General will be required to conduct an audit of each DOJ use of Section 215 orders.
The non-disclosure requirement will attach to an NSL only upon certification by the government that disclosure could cause one of the harms specified in the conference report e.g. endangering a witness or threatening national security. "
Supporters of the bill argue this new version of the act represent balanceallance between the need to pinnocentinocent human life and the need to protect liberties our other rights. The Pro-Patricoalitionllition has really gone out of their way to address the hypothetical concerns of the skeptics despite the fact that no evidence was brought before the congress of any actual abuses of the Patriot Act as it was before the changes in 13 hearings on the law.
Despite the willingness of many to go back into a complacent pre-9/11 mindset, the terrorist groups have not. They are still at war with us, and will remain so as long as they have the ability to do so. The recent aaroundarround the world and the public statements of the jihadists show that their war continues even if we have been blessed wiimmediatelyediatly fatal enemy terrorist victories in the U.S.
Preventing a terrorist act is far more difficult than typical criminal law efforts to investigate crimes that have aoccurredoccured. And the stakes are far higher. The U.S. needs the tools of the Patriot Act to help prevent the death and destruction the terrorists seek to dish out.
The house judiciary committee is making considerable progress on the Patriot Act. Modifications have been made to answer those concerned about abuses (though none have been shown to have taken place) while doing as much as practicable to protect Americans from terrorist threats. The following press release has been put out:
Sensenbrenner: House Approves Legislation
Completing PATRIOT Act Reauthorization
WASHINGTON, D.C. - The House today by a 280-to-138 margin approved legislation that will complete Congress's consideration of the PATRIOT Act reauthorization by making 3 changes to the House-Senate compromise conference report adopted by the House in December by a 251-to-174 margin and last week by an 89-to-10 vote in the Senate.
House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.), the sponsor of the original and reauthorization PATRIOT Act legislation, stated, "The PATRIOT Act has become a critical tool in America's law enforcement arsenal and a vital deterrent against terrorist subversion. It has made Americans safer, safeguarded our civil liberties, and upheld our constitutional values."
"The Justice Department and other agencies have properly utilized the PATRIOT Act to detect, disrupt and dismantle terrorist cells in New York, Virginia and Oregon before they strike. The PATRIOT Act also has helped tear down the pre-9/11 'wall' that prevented law enforcement and intelligence agencies from sharing critical information necessary to avert terrorist attacks on American soil," added Chairman Sensenbrenner.
The three changes made in the conference committee have been listed by my source as follows:
1. A person receiving a Section 215 order (the so-called business record provision) will have the right to challenge its legality.
2. A person making a disclosure to a third party (where the third party is necessary to carrying out the directions of the order) is required to disclose to the FBI to whom the disclosure will be made. The change in the language creates an exception that disclosure of the identity of an attorney is not required.
3. In general, NSLÂ’s will not apply to libraries since they are not electronic communication service providers (unless of course the library provided the services necessary to be an electronic service provider.
Mysourcee also lists the following Additional Civil Liberties Protections in the new version of the Patriot Act:
"The amended version of the bill contains among other things, the following civil liberties protections:
The Conference Report will sunset in 4 years the most controversial provisions of the Act relating to roving wiretaps, section 215 order (concerning the production of books, records, papers, documents and other tangible things), and the so-called “lone wolf” provisions.
The Conference Report requires that the FISA Court judgeÂ’s order authorizing a roving wiretap to spiffy the identity if known, of the specific target of the surveillance.
The Conference report requires investigators to inform the FISA Court within 10 days when the roving surveillance authority is used to target a “new” facility.
The Conference report explicitly provides for a judicial challenge to a national security letter.
The Conference report also provides for a judicial challenge to a 215 order.
The conference Report explicitly provides a FISA Court judge the discretion to not only approve or modify a Section 215 application, but also to deny the application.
The Conference Report requires that the Section 215 application must include a statement of facts demonstrating the records sought are relevant to an authorized investigation to obtain terrorism or foreign intelligence information.
The Conference report requires minimization procedures to limit retention and dissemination of information obtained about US persons from Section 215 requests.
When documents sought relate to certain sensitive categories of records(bookstore, tax returns, educational and medical records the FBI Director, Deputy Director, or Official in Charge of Intelligence must approve a 215 order or it may not be approved.
A recipient of a 215 order may disclose receipt of the order to an attorney or others necessary to comply with or challenge the order.
The Justice DepartmentÂ’s Independent Inspector General will be required to conduct an audit of each DOJ use of Section 215 orders.
The non-disclosure requirement will attach to an NSL only upon certification by the government that disclosure could cause one of the harms specified in the conference report e.g. endangering a witness or threatening national security. "
Supporters of the bill argue this new version of the act represent balanceallance between the need to pinnocentinocent human life and the need to protect liberties our other rights. The Pro-Patricoalitionllition has really gone out of their way to address the hypothetical concerns of the skeptics despite the fact that no evidence was brought before the congress of any actual abuses of the Patriot Act as it was before the changes in 13 hearings on the law.
Despite the willingness of many to go back into a complacent pre-9/11 mindset, the terrorist groups have not. They are still at war with us, and will remain so as long as they have the ability to do so. The recent aaroundarround the world and the public statements of the jihadists show that their war continues even if we have been blessed wiimmediatelyediatly fatal enemy terrorist victories in the U.S.
Preventing a terrorist act is far more difficult than typical criminal law efforts to investigate crimes that have aoccurredoccured. And the stakes are far higher. The U.S. needs the tools of the Patriot Act to help prevent the death and destruction the terrorists seek to dish out.
Action on Patriot Act
According to one of my Washington sources, today, March 7, 2006 the House of Representatives was set to take up the Senate changes in the PATRIOT Act. On the table were the following attempts to change the act coming from the Senate:
1. National security letters (administrative search warrants) will not be used with respect to libraries.
2. A process is established to allow an person to challenge requests under section 215 of the Act regarding items such as books, records and other tangible things.
3. An affected person cannot be required to submit the name of their attorney to the Federal Bureau of Investigation.
The Senate changes will be brought up under the Suspension of the Rules which requires a two-thirds vote in the House.
I must admit I have not been unhappy with the act as it is. If terrorists are looking at books on a particular tourist attraction of building, I would want our government to be able to discover that with the least fuss and risk of tipping off the terrorists as possible. I am also not worried about the government accidentally getting a list of the books I check out at the library. After all, if the books were so embarrassing I would not want the librarian to know either.
1. National security letters (administrative search warrants) will not be used with respect to libraries.
2. A process is established to allow an person to challenge requests under section 215 of the Act regarding items such as books, records and other tangible things.
3. An affected person cannot be required to submit the name of their attorney to the Federal Bureau of Investigation.
The Senate changes will be brought up under the Suspension of the Rules which requires a two-thirds vote in the House.
I must admit I have not been unhappy with the act as it is. If terrorists are looking at books on a particular tourist attraction of building, I would want our government to be able to discover that with the least fuss and risk of tipping off the terrorists as possible. I am also not worried about the government accidentally getting a list of the books I check out at the library. After all, if the books were so embarrassing I would not want the librarian to know either.
Wisdom of Solomon
Trinity Law School has always been eager to host recruiters from the U.S. armed forces or other agencies of the Federal Government. But not all law schools are so supportive of the military.
The Supreme Court of the United States has once again within this term presented us with an opinion which is both unanimous and happy in its outcome. A group of law schools associating under the label FAIR have been unhappy for some time with the congressionally authorized Defense Department policy of not allowing openly homosexual persons to serve in the Military. Because of their unhappiness, they have sought to prevent Defense Department recruiters from recruiting on campus. The Congress in turn has sought to pressure the law schools into allowing military recruiting with a law called the Solomon Amendment. The Solomon Amendment basically requires a law school to provide equal access by military recruiters. Under the law, military recruiters are entitled to the same treatment provided to recruiters of any other type. If an institution violates the law, it can lose federal funding.
A large number of law schools (not including Trinity Law School) challenged the Solomon Amendment and their challenge ultimately found its way to the Supreme Court under the title Rumsfeld v Form for Academic and Institutional Rights Inc.
In an opinion written by Chief Justice Roberts, the Supreme Court rejected the positions put forward by FAIR and a variety of amicus briefs. In first dealing with the amicus briefs, the Court rejected the idea that the Solomon Amendment could be fairly interpreted to allow the law schools to discriminate against the Military if they also discriminated against other organizations that would not sign their non-discrimination policies. The Court noted that the Solomon Amendment does not focus on the content of the school’s recruiting policy, but rather upon equal access without regard to content. “Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that provided to any other employer.” This is another small victory that shows that the current Supreme Court is willing to interpret statutes properly, looking at their text and the intended meaning communicated by that text and the context in which it appears. Had the Court gone the other way, they would have been rejecting the obvious purpose of the Solomon Amendment and attributing to the text a meaning that it did not have.
The Court noted that Congress had the power to enact the Solomon Amendment under the Constitution’s grant of power to provide for the common defense. The Court noted too that denial of funding based upon conditions has already been upheld in many contexts including Title IX of the Education Amendments. The Court said “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obliged to accept.” The Court also noted though that Congress’ ability to “place conditions on receipt of funds” is not unlimited. The government may not withhold funds in violation of a constitutional right or in order to infringe upon a constitutional right. The Court notes, however, that here the Congress had the constitutional power to require the schools to provide access to military recruiters and hence they could not be violating the Constitution by withholding funds in vindication of that power. The Court said, “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.”
The Court then went into the question of whether or not the Solomon Amendment in any way interfered with the law school’s freedom of speech or association. It wisely concludes that it does not. “The Solomon Amendment neither limits what the law schools may say nor requires them to say anything. Law schools may remain free under the statute to express whatever views they may have on the Military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.” The Court concludes that “the Solomon Amendment regulates conduct, not speech. It affects what the law schools must do—afford equal access to military service recruiters—not what they may or may not say.” This conclusion is very encouraging. Over the years, the Court had become more and more absurd in determining what is and what is not protected speech. Things had become so bad that the public expression of obscenities and exotic dancing are considered protected speech but some forms of political speech under the First Amendment are not given the protection of free speech. Hopefully, the Rumsfeld case is some evidence that the pendulum is swinging back and that the Court will take a more common sense view of the difference between speech and conduct.
The Court noted that the Solomon Amendment is not putting speech in the mouths of the schools simply because recruiters are allowed to be on campus or to speak on campus. Schools were required to put out notices of the recruiter’s presence if they put out notices for other recruiters. But this was not compelling the schools to undertake a “message” that they in some way disagreed with. The Court noted, quoting a previous opinion, that “words can in some circumstances violate laws directed not against speech but against conduct.” But that “compelling a law school that sends scheduling emails for other recruiters to send one for military recruiters is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
The Court also distinguished cases involving parades where the Court had allowed organizations to exclude organizations that did not share their ideals from being part of a parade. The Court noted that in those cases, compelling participation would interfere with the speaker’s message. But in this case, “accommodating the Military’s message does not affect the law school’s speech, because the schools are not speaking when they host interviews and recruiting receptions.” The Court concludes, “Nothing about recruiting suggests the law school agrees with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the Military’s policies.”
The Court does continue to endorse a line of cases that is somewhat troublesome by concluding that some kinds of conduct is inherently expressive and protected by the First Amendment. But the High Court rejects the idea that recruiting is that sort of expressive conduct. “The expressive component in a law school’s actions is not created by the conduct itself, but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.”
The Court also rejects FAIR’s argument that the Solomon Amendment violates their freedom of expressive association. The Court notes that “to comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore ‘associate’ with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition outsiders who come on to campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike public accommodations law in Dale, the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” The Court further said “students and faculty are free to associate to voice their disapproval of the Military’s message; nothing about the statute affects the composition of the group by making a group membership less desirable. The Solomon Amendment therefore does not violate a law school’s First Amendment rights.”
A robust freedom of speech and association is a good thing. But it is not appropriate to stretch the protection of the First Amendment to cover conduct that is evil or against public policy. Here the Court has made a principle decision upholding many of its prior speech and association cases, but ending what it characterizes as FAIR’s attempt to stretch First Amendment doctrines beyond the sort of activities that those doctrines actually protect.
The Supreme Court of the United States has once again within this term presented us with an opinion which is both unanimous and happy in its outcome. A group of law schools associating under the label FAIR have been unhappy for some time with the congressionally authorized Defense Department policy of not allowing openly homosexual persons to serve in the Military. Because of their unhappiness, they have sought to prevent Defense Department recruiters from recruiting on campus. The Congress in turn has sought to pressure the law schools into allowing military recruiting with a law called the Solomon Amendment. The Solomon Amendment basically requires a law school to provide equal access by military recruiters. Under the law, military recruiters are entitled to the same treatment provided to recruiters of any other type. If an institution violates the law, it can lose federal funding.
A large number of law schools (not including Trinity Law School) challenged the Solomon Amendment and their challenge ultimately found its way to the Supreme Court under the title Rumsfeld v Form for Academic and Institutional Rights Inc.
In an opinion written by Chief Justice Roberts, the Supreme Court rejected the positions put forward by FAIR and a variety of amicus briefs. In first dealing with the amicus briefs, the Court rejected the idea that the Solomon Amendment could be fairly interpreted to allow the law schools to discriminate against the Military if they also discriminated against other organizations that would not sign their non-discrimination policies. The Court noted that the Solomon Amendment does not focus on the content of the school’s recruiting policy, but rather upon equal access without regard to content. “Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that provided to any other employer.” This is another small victory that shows that the current Supreme Court is willing to interpret statutes properly, looking at their text and the intended meaning communicated by that text and the context in which it appears. Had the Court gone the other way, they would have been rejecting the obvious purpose of the Solomon Amendment and attributing to the text a meaning that it did not have.
The Court noted that Congress had the power to enact the Solomon Amendment under the Constitution’s grant of power to provide for the common defense. The Court noted too that denial of funding based upon conditions has already been upheld in many contexts including Title IX of the Education Amendments. The Court said “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obliged to accept.” The Court also noted though that Congress’ ability to “place conditions on receipt of funds” is not unlimited. The government may not withhold funds in violation of a constitutional right or in order to infringe upon a constitutional right. The Court notes, however, that here the Congress had the constitutional power to require the schools to provide access to military recruiters and hence they could not be violating the Constitution by withholding funds in vindication of that power. The Court said, “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.”
The Court then went into the question of whether or not the Solomon Amendment in any way interfered with the law school’s freedom of speech or association. It wisely concludes that it does not. “The Solomon Amendment neither limits what the law schools may say nor requires them to say anything. Law schools may remain free under the statute to express whatever views they may have on the Military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.” The Court concludes that “the Solomon Amendment regulates conduct, not speech. It affects what the law schools must do—afford equal access to military service recruiters—not what they may or may not say.” This conclusion is very encouraging. Over the years, the Court had become more and more absurd in determining what is and what is not protected speech. Things had become so bad that the public expression of obscenities and exotic dancing are considered protected speech but some forms of political speech under the First Amendment are not given the protection of free speech. Hopefully, the Rumsfeld case is some evidence that the pendulum is swinging back and that the Court will take a more common sense view of the difference between speech and conduct.
The Court noted that the Solomon Amendment is not putting speech in the mouths of the schools simply because recruiters are allowed to be on campus or to speak on campus. Schools were required to put out notices of the recruiter’s presence if they put out notices for other recruiters. But this was not compelling the schools to undertake a “message” that they in some way disagreed with. The Court noted, quoting a previous opinion, that “words can in some circumstances violate laws directed not against speech but against conduct.” But that “compelling a law school that sends scheduling emails for other recruiters to send one for military recruiters is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
The Court also distinguished cases involving parades where the Court had allowed organizations to exclude organizations that did not share their ideals from being part of a parade. The Court noted that in those cases, compelling participation would interfere with the speaker’s message. But in this case, “accommodating the Military’s message does not affect the law school’s speech, because the schools are not speaking when they host interviews and recruiting receptions.” The Court concludes, “Nothing about recruiting suggests the law school agrees with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the Military’s policies.”
The Court does continue to endorse a line of cases that is somewhat troublesome by concluding that some kinds of conduct is inherently expressive and protected by the First Amendment. But the High Court rejects the idea that recruiting is that sort of expressive conduct. “The expressive component in a law school’s actions is not created by the conduct itself, but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.”
The Court also rejects FAIR’s argument that the Solomon Amendment violates their freedom of expressive association. The Court notes that “to comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore ‘associate’ with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition outsiders who come on to campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike public accommodations law in Dale, the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” The Court further said “students and faculty are free to associate to voice their disapproval of the Military’s message; nothing about the statute affects the composition of the group by making a group membership less desirable. The Solomon Amendment therefore does not violate a law school’s First Amendment rights.”
A robust freedom of speech and association is a good thing. But it is not appropriate to stretch the protection of the First Amendment to cover conduct that is evil or against public policy. Here the Court has made a principle decision upholding many of its prior speech and association cases, but ending what it characterizes as FAIR’s attempt to stretch First Amendment doctrines beyond the sort of activities that those doctrines actually protect.
Friday, March 03, 2006
BOOKS TO PREPARE FOR LAW SCHOOL
Students often ask me what books would be helpful to read in order too prepare for law school. This is difficult because law school involves complex issues that have not been systematically or well addressed by evangelical scholars and works specifically on human law. As a result, I cannot recommend a single book that will give you a complete perspective on the law. Instead, it is necessary to read a whole variety of books and synthesize the materials in order to come to a proper understanding of human law from a biblical perspective. So for that synthesis, and to prepare yourself for studying human law and understanding legal systems, I would recommend the following:
1. The Bible
2. Carl Llewellyn – The Bramble Bush (Oceana Publications Inc.)
3. Scalia – A Matter of Interpretation (Princeton University Press)
4. Arkes – Natural Rights and the Right to Choose (Cambridge University Press
5. J. Budziszewski – What We Can’t Not Know (Spence Publishing Co.)
6. J. Budziszewski – Written on the Heart, The Case for Natural Law (Intervarsity Press)
7. Kirk – The Roots of the American Order (Regnery Gateway)
8. Ronald Nash – The Word of God and the Mind of Man (P & R Publishing)
9. C.S. Lewis – Mere Christianity, The Abolition of Man, Studies in Words and The Weight of Glory
10. Gordon H. Clark – The Johanniane Logos, God’s Hammer, Language and Theology, and A Christian View of Men and Things
11. Rabin and Sugarman – Tort Stories (Foundation Press)
12. Baird – Contract Stories (Foundation Press) and other books in Foundation Press’ “Stories” series or “Law Stories” series
13. Plato – The Laws
14. Aristotle – The Ethics
15. Cicero – The Republic and the Laws
16. Augustine of Hippo – The City of God
17. Thomas Aquinas – Treatise on Law from the Summa Theologica
18. John Calvin – Institutes of the Christian Religion IV, chapter XX
19. Hooker – Politics of Ecclesiastical Polity
20. Blackstone – Commentaries on the Laws of England, Introduction, sections I-IV
21. Harold Berman – Law and Revolution I and II
22. Arthur Hogue – Origins of the Common Law
23. Harold Burman – Faith and Order, the Reconciliation of Law and Religion
24. Roscoe Pound – The Development of Constitutional Guarantees of Liberty (Yale University Press 1957)
25. Francis Schaeffer – How Should We Then Live and The Christian Manifesto
26. Lee Cameron McDonald – Western Political Theory, Parts 1, 2 and 3 (Harcourt Brace Jovanovich Inc. 1968)
27. Paul Johnson– A History of the American People
28. John Warwick Montgomery – Human Rights and Human Dignity
29. Stephen Smith – Law’s Quandary (Harvard University Press 2004)
30. Norman Geisler – Christian Ethics (Baker Bookhouse)
31. Anthony D’Amato, Analytic Jurisprudence Anthology (Anderson Publishing Company)
Add to all of that as many actual famous case opinions as you can read, prominent horn books
on major legal subjects such as Prosser on Torts, , or any good books on the black letter law, any good books on history, and any books you can find by major influencers of the law (which usually have to be analyzed critically because they are probably full of all sorts of terrible theory), and you have an excellent foundation for preparing your mind for law school. Some good works on logical thinking and the informal fallacies couldn’t hurt either.
While I may modify this list in future posts, it provides a very good start for students who want to know what sorts of things they could look at to get ready for law school.
1. The Bible
2. Carl Llewellyn – The Bramble Bush (Oceana Publications Inc.)
3. Scalia – A Matter of Interpretation (Princeton University Press)
4. Arkes – Natural Rights and the Right to Choose (Cambridge University Press
5. J. Budziszewski – What We Can’t Not Know (Spence Publishing Co.)
6. J. Budziszewski – Written on the Heart, The Case for Natural Law (Intervarsity Press)
7. Kirk – The Roots of the American Order (Regnery Gateway)
8. Ronald Nash – The Word of God and the Mind of Man (P & R Publishing)
9. C.S. Lewis – Mere Christianity, The Abolition of Man, Studies in Words and The Weight of Glory
10. Gordon H. Clark – The Johanniane Logos, God’s Hammer, Language and Theology, and A Christian View of Men and Things
11. Rabin and Sugarman – Tort Stories (Foundation Press)
12. Baird – Contract Stories (Foundation Press) and other books in Foundation Press’ “Stories” series or “Law Stories” series
13. Plato – The Laws
14. Aristotle – The Ethics
15. Cicero – The Republic and the Laws
16. Augustine of Hippo – The City of God
17. Thomas Aquinas – Treatise on Law from the Summa Theologica
18. John Calvin – Institutes of the Christian Religion IV, chapter XX
19. Hooker – Politics of Ecclesiastical Polity
20. Blackstone – Commentaries on the Laws of England, Introduction, sections I-IV
21. Harold Berman – Law and Revolution I and II
22. Arthur Hogue – Origins of the Common Law
23. Harold Burman – Faith and Order, the Reconciliation of Law and Religion
24. Roscoe Pound – The Development of Constitutional Guarantees of Liberty (Yale University Press 1957)
25. Francis Schaeffer – How Should We Then Live and The Christian Manifesto
26. Lee Cameron McDonald – Western Political Theory, Parts 1, 2 and 3 (Harcourt Brace Jovanovich Inc. 1968)
27. Paul Johnson– A History of the American People
28. John Warwick Montgomery – Human Rights and Human Dignity
29. Stephen Smith – Law’s Quandary (Harvard University Press 2004)
30. Norman Geisler – Christian Ethics (Baker Bookhouse)
31. Anthony D’Amato, Analytic Jurisprudence Anthology (Anderson Publishing Company)
Add to all of that as many actual famous case opinions as you can read, prominent horn books
on major legal subjects such as Prosser on Torts, , or any good books on the black letter law, any good books on history, and any books you can find by major influencers of the law (which usually have to be analyzed critically because they are probably full of all sorts of terrible theory), and you have an excellent foundation for preparing your mind for law school. Some good works on logical thinking and the informal fallacies couldn’t hurt either.
While I may modify this list in future posts, it provides a very good start for students who want to know what sorts of things they could look at to get ready for law school.
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.
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!
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.
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
CONFERENCE ON ETHICS AND AMERICAN GOVERNMENT
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.
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.
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.
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.
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.
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.
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