ring of fire

I am not sure whether I fell in to the ring of fire or whether I jumped. Supporting the GOP was for me, like most people, a conscious choice but after a while, I discovered that like love, politics too burns.

In my defense, I was never fully comfortable with the GOP. I supported them by pulling the straight party levers (back when it really was a lever) because I was overwhelmingly concerned with fiscal policy, national defense and abortion. As a teenager and young adult, it was easy to make the error of assuming politicians actually mean what they say, so I beg the forgiveness of the Almighty and my gentle readers for the transgressions of my youth.

I remember my mid-life political epiphany with clarity though it came about not in an instantaneous flash of light but over a period of a few months in 1996. Having already had all I could stomach studying asset forfeiture, flag burning, sacramental peyote and other significant civil liberties affronts, the extraordinary hypocrisy of the budget battles sealed it: I had become a full blown political heretic. After dabbling with the Libertarian Party for a few years and eventually abandoning that institutionally defective and philosophically incomplete camp, I found the path of political redemption by dropping out of the existing political process altogether and dedicating myself to using the power of the pen to try to shake whatever small circle of people I can out of the two-party stupor which plagues our land.

I am reminded of all of this because of reading the recent Supreme Court ruling in the case of Hamdan v. Rumsfeld. It is an interesting read to say the very least.

Interesting because of its overt political nature. The political thrust and parry drip from the white space between the words of putatively sober jurisprudential exegesis. Stevens and Scalia were at their result oriented best reducing the opportunity for righting egregious wrongs and propounding great ideas into a base game of political sport.

Stevens and Scalia are no Hand and Holmes.

The decay of our Federal Judiciary is emblematic of the larger trend of politicization of our nation. Stevens and Scalia are both extremely intelligent men who are fully capable of propounding great ideas in articulate and reasoned analysis. Instead, they give us eisegetical crap.

As a nation we have come to accept this hyper-politicization of everything as something normal and wholesome. When the blue team scores, the crowd roars its approval while the red team clings to hopes of a good free agency period between elections. It is all about victory and defeat.

This politicization affects big stuff that is easy to identify, but you can even see its subtle affects in the smaller things as well.

Perhaps space exploration is not a small thing, but it provides an immediate and useful example of how deeply political we have become. As I write, we are awaiting the Space Shuttle return to flight launch and there is considerable angst over the future of the various NASA programs. If you are not keeping up, it boils down to this: if the flight is successful, then the Shuttle will continue flights for the next four years to complete the International Space Station (ISS). Another failure will likely permanently ground the Shuttle fleet and the ISS will never achieve any stage of construction remotely similar to finished.

Whether Space Exploration is a worthy goal or not is a separate and interesting debate which I am happy to have. But we have gone forward in this direction and having made that decision, we should be proceeding based on scientific merit and rational objectives. Instead the go/no-go decision is being influenced by budget cycles and political spin. The growing corollary national disease of extreme risk aversion plays into the politics of the Space Shuttle, but I’m going to exercise some discipline and avoid venturing further down that tangent.

Truly, it must be incredibly disappointing to career scientists and engineers at NASA to be at the mercy of the spin cycle. But no more disappointing than this political reality is to thousands of our best and brightest who pursue noble causes such as medical research only to find out that getting funding is also a political process. No more disappointing than realization that meritorious science is less important than spending on the political disease du jour.

No more disappointing than figuring out that this is what we have become as a nation.

As we play the two-party game, the federal budget grows and grows. Vote producing procurement programs move forward while things that matter are not even discussed much less addressed. As we fall down, down, down into the political ring of fire, more and more people are getting burned.

I, for one, refuse to stoke the flames.

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war of the worlds

It is that season again. A Supreme Court nomination is again our nation’s political focus. There is no question that this has become a sham political debate and not a quest for a sound jurist.

It would be naïve to suggest that politics in the judiciary is a new phenomenon in our land. Marbury v. Madison itself was about the seedy intersection of politics and blind justice. What I am decrying is that the process has been emptied of all content whatsoever.

The divisiveness over Roe v. Wade has much to do with this, but this is itself merely part of a larger trend. A trend toward high stakes political gamesmanship at the expense of We the People. A trend away from the substantive decision-making and toward the blood sport of politics.

The Roe debate itself is minor in the context of the overall tragedy which is the extreme politicization of the American mind.

It is with some mirth that I observe all the casual conversations around the water cooler where the phrases “judicial activism” and “strict construction” are bandied about with cavalier certainty. But I derive no similar humor from the lawyer-politicians who consciously perpetuate the existence of these mythical jurisprudential antipodes. The shameless lying coming from both sides of the aisle should disgust any informed observer.

“Lying” will probably seem too harsh a word to many. But frankly if you make it through law school and still have an honest belief that this political terminology is of utility in the substantive discussion, then you are too stupid to deserve the degree. Sadly, I do not think that most of the CongressCritters are in fact stupid. They just play stupid on TV.

The truth you seldom hear is that this quasi-legal language exists solely as proxies for underlying political positions.

The funny thing is that many of the same people who carp the loudest about these issues are the same ones you will later hear lamenting the poor jurisprudence coming from our courts. As the ancient wisdom would tell us, we will reap what we have sown. Sow political seeds and what you get is political fruit. And political fruit is almost never good law.

Personally, I lay much of the blame at the feet of the Traynor and Warren courts. These “great” jurists and their brethren made it fashionable for courts to get into the business of making law. Brown v. The Board of Education led to the popular error that the courts are competent to be agents of social change. And have no doubt, “error” is exactly correct: as monumental as was Brown it is highly arguable whether the court ordered busing produced the social benefit many assume flowed strictly from that aspect of the decision.

My just saying something negative about Brown will undoubtedly prompt some ugly emails.

But I have a dream of sound jurisprudence that anchors our human rights in natural law rather than subjecting them to the whims of an inherently political legislature or their conscripts in the judiciary. Contrary to the myths you hear nightly on the news, returning the courts to their limited Constitutional function would not dictate any particular political outcome. Social Justice is possible without tearing our legal institutions apart. Liberty can be protected without shredding our Constitution.

But judging by the empty rhetoric I hear daily, my vision is destined to remain nothing more than it is: an abandoned dream.

focus on the tautology

First, let me candidly admit what a valuable resource Focus on the Family and Dr. James Dobson has been to my family. I remember well the films shown at my Church back when Dr. Dobson was relatively unknown and I was a young adult with a great need for Dr. Dobson’s wisdom. Since then, I have purchased and read a number of Dr. Dobson’s books, and my Son’s video library has a generous selection of the wonderful Adventures in Odyssey videos that Focus on the Family produces. I am grateful and will continue to be grateful for the professional wisdom Dr. Dobson has shared.

This gratitude, however, does not extend to the ever-increasing political activities of Dr. Dobson and the Focus on the Family organizations.

In the Focus on the Family Action April newsletter, Dr. Dobson wrote an article entitled Life, Death and Judicial Tyranny extolling the perils of the judiciary and calling the faithful to action with respect to the administration’s effort to get its judicial nominees confirmed in the senate. In his view, the Terri Schiavo imbroglio was solid evidence of an Imperial Court imposing its will on a Moral Majority and the way to set things right is by getting more right minded jurists to the bench.

It seems to me that the greater imperialistic risk of that episode came from a Federal Government intervening in a matter that was well adjudicated in Florida Courts. And while I am concerned with the make-up of the jurists on the Federal bench, I have trouble imagining how Dobson’s purposefully expanding upon the politicization of judicial nomination process can be calculated to improve the jurisprudential temperament of the courts. But the most disturbing thing Dobson wrote does not clearly tie to a specific public issue, but rather involves an extraordinarily misleading and erroneous “analysis” of the landmark case of Marbury v. Madison .

In Dobson’s view, Marbury v. Madison is the root of all evil. Indeed, Dobson’s pièce de résistance in that newsletter was the argument that the founders never intended judicial review as a Constitutional power. Disingenuously he effusively quoted Thomas Jefferson’s remarks that possession by the courts of such a power would lead to oligarchy. His clear implication that this was the position of all the founders is clearly not so.

As you can imagine, there has been much ink spilt in the last two centuries on this very point, however absent from Dobson’s argument is even the scarcest hint of an objective inquiry into the arguments for and against judicial review. But then, I would not expect such a thoughtful analysis from someone who is so blinded by a political agenda that they omit from their diatribe the essential fact that when Jefferson was writing in criticism of judicial review, he was opining from the losing end of a political struggle.

And perhaps it might be worth noting that the man that opposed the Constitution with greater vigor than any of the other anti-ratification voices might not necessarily be the best citation on a point of Constitutional law in the first place. It seems worth at least a mention that in Federalist Paper number 78, Alexander Hamilton, one of the staunchest advocates of the new Federal Constitution, put forth a vigorous argument in favor of judicial review as being essential for the protection of the individual’s rights. Whatever happened in Marbury it is clear that Justice Marshall was not simply creating the doctrine of judicial review out of whole cloth as Dobson is suggesting.

Sadly, in the political realm, omitting inconvenient facts and demagoging on those found more useful has become the norm.

But in the process of demagoging this issue, Dobson has seldom been more out of his element. That he self-righteously calls on the name of Jefferson, a somewhat dubious source for Original Meanings, evidences a radical contempt for his listeners ability, or more likely willingness, to investigate the evidence for themselves.

If you have sympathy for Dobson’s view, I would urge a personal examination. Judicial review at one time troubled me too because on its face it smacks of judicial over-reaching. I am a big believer in courts deciding the cases before them and going no further than necessary to discharge their duty. But after some study I came to the understanding that judicial review is in fact a logical extension of a court’s inherent authority to apply law to facts. A logical extension of the founder’s desires to put the Constitution and the Courts above the political process in an endeavor to preserve the blessings of liberty for posterity.

Federalist No. 78 is actually quite compelling on this point.

Digging into the matter, you will discover that no matter where you come out on judicial review, there are a lot of tough questions you have to answer to get a clear understanding of how this should in fact work. Who would you choose to be the final arbiter of Constitutionality? And what sources are the arbiter to consider in determining Constitutionality? I for one do not consider it wise to submit our human rights to the Legislature or Executive for arbitration but those of you who believe in the virtue of the majority may feel otherwise. And anyone who tells you that constitutional interpretation is as simple as applying “strict construction” is either blowing political smoke or has not seriously studied the issue.

It is clear that Dobson does not expect to be questioned by his followers with any intellectual rigor.

As you might imagine, I have only just touched on the most abrasive of Dobson’s misleading arguments. The genuinely disturbing thing is that so few of my brothers and sisters in Christ will question the word of Dobson and I have no doubt that the bumper-sticker phrase “Judicial Imperialism” will be on the lips of many evangelicals for many weeks to come.

Fortunately for Americans, we still cling to the tatters of a body of law that knows no equal in history. Time will tell whether this audacious power grab by the majoritarian wolves, cloaked as Christian sheep, will run its course before the last vestiges of Liberty are wrested from We the People. Sadly I fear that in an age when politicians like Dobson get so much traction, perhaps we do deserve what we are getting.

Forgive them Father for they know not what they do.

i, heretic

Terri Schiavo’s impending death should give each of us pause no matter where we come down on the issue of her continued access to food. That I am on the side of life for Terri will come as no to surprise to those of you familiar with me. That I am mortified by the desecration of the rule of law by those who in a general sense agree with me will be probably less surprising to you still.

In a New York Times op-ed today, Charles Fried characterized the superficial problem well when he expressed dismay at the Republican’s situational contempt for the rule of law in light of their traditional patronage of that worthy cause. Whether the Republicans ever had a drop of sincerity in their support for the rule of law is hard to say, but it should be clear now that their purported high regard of America as a nation of laws is ultimately subservient to their political agenda. Unfortunately, a lack of fidelity to one’s stated High Ideals is nothing new for our political class regardless of which side of the isle on which they stand.

I seldom get more nauseous than when a Democrat or Republican is accusing other politicians of hypocrisy thereby achieving the epistemological marvel of hypocritical hypocrisy.

But my nausea today stems more from a profound discouragement that we as a society will ever be able to tackle complex ethical problems in a useful manner. We have become so dysfunctional that as a nation that we are not only unamazed at the politicization of a politically neutral moral issue, but we also unrepentantly accept this state of affairs as the norm. Our continuing voluntary acquiescence to content free dialog has brought us to this point where it is highly probable that we will come through the long and arduous “discussion” concerning Terri Schiavo and arrive at the other side with no more understanding or consensus than when we first considered the issues.

While I share the distress of many Americans over the need to find a socially useful definition of life, my greater terror comes from recognizing that the issues presented by the Schiavo case are of great simplicity when compared to profound bioethical questions that lie just over the horizon of popular consciousness. A society that cannot corporately determine that which is Life when dealing with familiar things such as the human genome will surely be dashed to philosophical pieces by the radical technologies which will explode upon us long before this writer reaches his actuarial expectation of the hereafter.

And make no mistake about it, what lays ahead is perhaps more daunting than what any of us can imagine. Will the mice with quasi-human brains that they claim are presently not allowed to fully develop be deemed worthy of any kind of human rights protection? What are we to do with other chimeras yet to be born? And fasten your seat-belts bio-sports fans because mere genetic tinkering of this kind is child’s play compared to efforts to use the building blocks of life to create fundamentally new biologies.

Hyperbole is scarcely even possible in these matters.

What is happening due to our collective inability to intelligently arrive at a conclusion on any issue that presents an ethical conflict is that we are abandoning some of our most important decisions to the political elite. Being dependable politicians, they of course pursue political advantage rather than leading constructive ethical debate. It is the ultimate in naiveté to be shocked by this.

The real shock is that we are missing here a great opportunity to set the law on the reasonable path of a presumption for the continuation of life. Certainly other positions are possible and should be discussed, but it seems likely that most Americans would favor a presumption of life in the absence of a prior clear expression to the contrary by the one who is no longer able to speak for themselves. Instead, we ogle the facts before us, stamp our feet in righteous anger and carefully avoid the uniquely American heresy of substantive dialog.

The politicians will have the last “laugh”, I suppose, because when the petition for injunctive relief to support the human rights of something akin to a pig-human chimera that can be shown to possess a brain with a human structure and chemistry, America will habitually turn to them to be told what to think. And what we must think will then of course depend on the red-blue topography of the upcoming election.

When bioethics questions come up, I often think about the line uttered by the Jeff Goldblum character from the movie Jurassic Park where he admonishes that “life will find a way”. As we set a course for tinkering with life in ways grander still than even what was depicted in that movie, it is a frightening thing to know that we proceed not only without a navigator, but without a rudder as well.

something wicked this way comes

The Attorney General’s remarks last week are a fitting departing flourish, if indeed he is done flourishing, for the man who labeled dissenters such as myself as traitors. The timing of the remarks, coming after the administration’s rather outrageous claim of a mandate to pursue its narrow partisan agenda, is certainly no accident. My sense is that the Shrub Cabal senses blood in the water and it is eager to kill off its prey quickly before perceived election momentum fades and mid-term election preoccupation begins.

In the immediate aftermath of this election, which was obviously a landslide in the altered reality of this administration, the tone is already increasingly patrician and condescending. You can hear the rhetorical finger-wags often in the Attorney General’s remarks, such as when he said:

The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war.

But the record of this administration makes it hard to imagine what exactly this gang might consider to not be a “critical area”. I sense no limits whatsoever on the subject matter that the administration is willing to claim as its patriotic domain. Apparently, if Karl Rove says it, then it’s so.

Truly, there is nothing genuinely new in these recent remarks. At every turn we have heard the administration’s whines about having to do their jobs within the quaint limits of the Constitution—which they only incidentally swore to uphold and defend. In the face of such egregious over-reaching for executive power, the calls for restraint by the dissent have been muted at best. Neo-cons can take great comfort in knowing that at the present rate of civil liberty legislative annulment, they will not need to whine for long: soon there will be precious little of the Constitution remaining to defend.

The context of the Attorney General’s remarks are instructive if you are not aware. The nation’s Top Attorney was obviously distressed by a recent US District Court ruling that halted the military trial of a man accused of being Osama Bin Laden’s driver and who is one among many that the administration has argued is not subject to the rules of the Geneva Convention. The Geneva Convention is of course famous as an effort between civilized nations to attempt to bring some protection to the human rights of prisoners of war.

And the Geneva Convention is of course equally famous for being ignored by administrations headed by Hitler, Stalin, Tojo and now Bush.

The administration has of course articulated a legal defense to repudiating the Geneva Convention—this administration, like its predecessor, is very good at legal defenses. That Al Queda is not a “state” and does not play fair seems to be about as far as the administration’s argument goes however. Depressingly lost on these self-styled patriots is the perspective that I think most of us learned as children. A patriotic perspective that taught that America is better than such practices and did the right thing even when it wasn’t fair. A perspective that understood that legal defenses to moral offenses are not very compelling whether in the Courts of Nürnberg or the Courts of Public Opinion.

Fortunately our Attorney General has announced his resignation; unfortunately the nominee for his replacement has been named as well: Alberto Gonzales. The same Alberto Gonzales that advised that the Geneva Convention was “quaint” and that by repudiating the Geneva Convention, the administration would have a defense against future accusations of war crimes. The same Alberto Gonzales that vigorously advocated a line of thought that lead to the Abu Ghraib prison torture scandal.

I think the nickname “Sleazy Gonzales” will fit pretty well.

It is always dangerous to think things can’t get any worse. Certainly, in the case of our current Attorney General one might be tempted to think so, but Gonzales may well force some to rethink that conclusion.

But, there is little need to rethink your conclusion on the present Attorney General because he has remained regrettably consistent throughout his tenure. He further admonished us last week to get a firmer understanding of how our legal system works when he said:


Courts are not equipped to execute the law. They are not accountable to the people.

I must assume that since our Top Lawyer went to law school, he was offering this as instruction to the unwashed masses and not as an expression of a recently acquired personal understanding. It is, after all, fundamental to our system of government that the courts be a check on the power of the legislature and executive that is only accountable to the law itself. This is yet another instance where an administration official floats out statements that are objectively true, but which are intended to imply various meanings which are manifestly false. In this case, the implication is that the courts not being directly accountable to the people is somehow bad for America.

The obvious and unnerving irony of these remarks is that the Attorney General seems to feel that checks and balances are only required on the powers of the legislature and judiciary. This can be seen in the fact that any attempt to question the administration, or to check its abuses of power, is met with accusations of duplicity or ignorance. More unnerving still is the unwillingness of the media and political opposition to call the twisted rhetoric of this administration exactly that.

Technically, I suppose, the courts are not accountable to the people. But then again, to the extent that the past election was a referendum on the anti-American agenda of this administration, apparently neither is the Attorney general.