Still Alive

The rumors of my demise are greatly exaggerated. I live, and will likely see blog time again. However, I can’t really say when regularity will return, if ever. Law school begins at 9:05 AM tomorrow, and with it goes all sense of what is normal. My intent is to maintain bloggage when possible, but also to record what I’m doing in school. Remember, I’m doing this page for me and not necessarily for you, and thus I reserve the right to be boring as hell.

With that in mind, I’ve been studying for my first day’s assignment. In Contracts, I’ve been reading about the principles of contract law, including the development of the Universal Commercial Code, the common law, and some of the theoretical premises of modern legal scholarship. In Torts, I read about the overlap between criminal and tortuous conduct, and the common law that most tort law revolves around. Between the two classes, three cases were in the reading, including the case of the Thorns, a very famous case from England in 1466. I told you this was boring.

In other developments, Maggie and I traveled last week to visit the wedding of Haygruh and Aleava, who promptly drove 1500 miles to move to Minnesota to attend the U of M law school with me. They are now living here temporarily, which complicates matters too much. They are such dear friends, it would be a real shame if I had to kill them.

Followups and randomness

Bush Doctrine Redux. A group of conservative think tankers are floating the term “imperialist” to refer to the Bush Doctrine stance of unilateral engagement. This is a major departure from past Republican thought, which regarded our role in international affairs (should we have one) as primarily based on Kissengerian realpolitik or trade matters. Instead, they argue that the US should use its clout to enforce a Pax Americana where no major wars may erupt without us crushing the aggressor. Although this sounds neat, remember that this is not a new idea, and what happened to the last few benevolent superpowers that attempted to execute such a policy in the known world.


Someone needs to find me this video. Entitled "Harry Potter: Witchcraft Repackaged: Making Evil Look Innocent,” this bit of fundamnmentalist drivel promises to be really funny.

Dubya gets a month off, why can’t we?

Finally, the MSNBC “Week in Pictures” site is really pretty good. It’s a good Monday thing to check out.

Assessing the Bush Doctrine

Don’t be fooled by the rhetoric about how dumb Bush is. He is smart enough. While domestic attention has been mainly focused on domestic affairs, the Bush foreign policy team has been busy dismantling international accords that were in their final stages of negotiation. Consider some of them:

• Germ warfare protocol. A 1972 treaty has long prohibited biological warfare, but no enforcement mechanism ever existed. The Bush Administration pulled out of negotiations after years of discussions.



• The Kyoto Protocol. Now, I’m not going to beat around the Bush here, the treaty was literally impossible for the US to accomplish given the current political climate. However, to not even negotiate on the matter signals the world that the US is unwilling to hold a dialogue (and coupled with his reneging on campaign pledges to curb domestic C02 emissions signals domestic environmentalists that he means war).



• The Anti-Ballistic Missile treaty. This is actually a very short and to the point treaty, and the one that some refer to as the cornerstone to security. Again, this is another signal.

These three treaties, as well as the small arms convention, the Comprehensive Test Ban Treaty, and the threat to renege on the pledge to remove the US minefields in Korea, mean that the United States’ credibility in dealing with the other countries of this world is rapidly eroding. The most curious fact about this trend is that the White House seems to be following a deliberate line. The Bush Doctrine, as conservative commentator Charles Krauthammer has dubbed it, is American policy.

In a way, the Bush Doctrine is a major ideological breakthrough for the Republican Party. The GOP has long been split between internationalist and isolationist wings, and to go unilateralist seems to satisfy both. We remain involved in international affairs, at least as far as our dictates go, and for trade agreements. However, we refuse to further entangle ourselves in any treaty that would limit our sovereignty or freedom to act, no matter how repugnant. This is a strict ideological game that is being played by our administration, and it makes me angry that Americans are worldwide despised and hated by many people that have never met any of us; or worse, have met the ugly Americans that inevitably tend to be the same sort of people who make those policies.

LAPI, Austen style

Revisionist scholars are re-examining sexual double entendres and other such bawdy themes buried in the works of Jane Austen. Well, what do you think this “tucking lace” business was, anyway?

Forgotten moments in history

In American History, students have to remember the additions that added land on to the country called the USA. For most, this is a brief part of their early High School experience, to be crammed for on a test and then forgotten. For me, I wound up remembering everything. Land acquistions in general are very interesting to me. What other countries just add land, and have this addition as a celebrated part of their history? Not many. Expansion is a uniquely imperial act, and especially so in the case of the first installment of forgotten moments in history – the Gadsden Purchase (map included in that link, or click here for the full text of the treaty).

James Gadsden was an odd character, probably best described as a Southern Imperialist. He had originally gained renown in 1818 as the man who was supposed to convince the Seminole Indians in Florida to go to reservations. However, the Seminole had different plans and instead fought a bloody, protracted, nasty war that didn’t end until the US government treacherously abducted their leader and the rest retreated into the Everglades or went to the pathetic reservation lands in what is now Oklahoma. Gadsden associated himself politically with all of the big Southern issues, including slavery and the doctrine of nullification, which was the belief that states could nullify federal laws that they didn’t like. However, he would anger Andrew Jackson because of this particular proclivity of his and would be written out of the patronage during the Jackson administration. During his return to private life, Gadsden became president of the South Carolina Railroad. He began formulating a dream of tying together the Southern railroads, and when the US expanded after the imperialist Mexican-American War, he thought that it would be best to tie the West to the South, so that the South would influence the development of the West more than the North would. So he asked his engineers about the route the Southern transcontinental railroad route should take, and sure enough, the best way would be to go through the Mesilla valley, which still remained in Mexican hands.


Confusing the matter was the fact that the map that the 1848 treaty of Guadalupe Hidalgo (that is, the one that ended the Mexican war) was based on was substantially wrong. Gadsden then began agitating for a mission to buy this property, and because he was friends with one Jefferson Davis, who was Franklin Pierce’s Secretary of War, he wound up securing an appointment as minister to Mexico, primarily to make the deal. Gadsden negotiated the sale of the property for a mere $10 million, which is about $0.33 an acre, or really cheap. Signing the treaty in 1853 with Mexican dictator Santa Anna, both negotiators thought they were doing something good for their countries; Gadsden figured that with a Southern route secured for the transcontinental railroad, that there was a shot at extending slavery to the new Western territories. Santa Anna was desperate for cash and didn’t think any Mexican would be too pissed about the sale. Both were wrong.


Gadsden would only last as minister to Mexico until 1856, when he would be recalled for some breach of protocol. He died in 1858. The Southern Pacific Railroad, which was the inspiration for the purchase, became one of the bitter interregional Congressional struggles preceding the Civil War, and wound up not getting funded until after the war. It was completed in 1880. As for Santa Anna, he had survived politically through the Texas war of independence, the Mexican American war, but he couldn’t survive the political fallout of the Gadsden purchase. He was run out of Mexico, and went into exile in Coney Island, of all places. Santa Anna had one more gift to America, besides Texas and the Southwest, and it was chewing gum. Yes, Santa Anna brought a crapload of chicle with him to New York, and wound up selling it to a guy who popularized the stuff. So, next time you step in gum, think of Santa Anna.

Geekville

For those of you missing Metafilter, note that a semi-secret MeFi substitute has sprung up here. Not enough people read my site to make this disclosure dangerous. And there’s always 1142, but most people think that it is impenetrable, which it is.

The Worst SCOTUS Decisions ever, part II

One of the most impressive things I learned trying to pick cases for last session’s bloggage is the amazing amount of bad cases to choose from. When growing up, I had an impression that the Supreme Court was an essentially progressive institution, making a few aberrant decisions but generally a vanguard of goodness in American history. How wrong I have been. The SCOTUS has been dragged kicking and screaming into the modern era. Except for one burst of forward thinking rulings during the Warren Court, it has generally been hostile towards the rights of individuals and oppressed groups within society. Chief Justice Rehnquist, for example, has a long history of opposing integration and when prepping Justice Jackson for the Brown v. Board of Education case, wrote a memo arguing for the upholding of Plessy. With no further ado, more awful decisions.

• Bowers v. Hardwick (1986) Opinion by: Byron White. This case is one of the most egregious precedents still in effect. After twenty years of judicial precedent enshrining a right to privacy, in this case the court upheld an anti-sodomy statute where police officers broke into a homosexual’s house, finding him inflagrante delicto. The swing vote was Lewis Powell’s, whose famous quote was that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." In 1990, he noted that he “probably made a mistake in that one.” Thanks for nothing, Lewis.



• Cherokee Nation v. Georgia (1831) Opinion by: John Marshall. This case was one of the Cherokee cases, in which the Cherokee nation fought removal of the tribe to Indian Territory (now the state of Oklahoma; where the grass remains green and the sky remains blue and the rivers still run). Marshall ruled that the Cherokee are not a foreign nation and exist at the pleasure of the United States; instead they are “Domestic Dependent Nations.” The result of this ruling was to legitimize first the statutory land theft of millions of Native Americans, as well as the eventual genocide of people and cultures. Although the Cherokee cases actually barred the government from removing the Indians, Andrew Jackson ordered the removal anyway on the Trail of Tears, one of the ugliest single events in US history. In discussing this case with Jeff, he noted that:
  

  It's true that many thought Marshall's rulings were liberal -- but the difference between people trying to give a legal basis for land theft (Marshall) despite constitutional and international law and those (Jackson) who merely wanted a Hitlerian scorched earth strategy is not as great as one might think.
  



• In re Debs (1895) Opinion by: David Brewer. This unanimous decision ruled that the Federal government has sweeping power under the Interstate Commerce clause of the constitution to break strikes and jail union leaders. An awful decision, rendered unanimously, that hypocritically crushed labor rights in the same year that they ruled that the government has no power to break up the Sugar Trust or impose an income tax (although the latter was overturned by the Sixteenth Amendment, and the former was overturned statutorily). Dubiously based on the notion that the disrupting of the railroads was delaying the delivery of mail, Debs granted sweeping rights to management to use injunctions to break strikes. One of the decisions that give corporations more rights than they ought to have.



• US v. Leon (1984) Opinion by: Byron White. To adequately explain this, you have to understand the Exclusionary rule. This is the judicial principle that holds that evidence obtained illegally by police is excluded from the trials of defendants. It is also one of those ideals that is railed against by conservative “law and order” pundits who claim it’s responsible for many guilty people going free on technicalities. However, it’s not true; fewer than 0.4% of cases referred to prosecutors are declined on Exclusionary rule problems (source). Nonetheless, in Leon, the court unveiled a sweeping exception to this: the “honest mistake” exception. Yes, if police make an “honest mistake” in their representations of probable cause to a judge, the search is ok even if they were completely wrong. This is a bad decision because it sets the courts in a position of reading people’s minds; arbitrarily deciding if the police’s mistake was an honest one or not and rendering the Exclusionary rule essentially meaningless as long as the police have a plausible story.
  

A movement in the making

As previously pointed out, we Americans get far too little vacation time. Except for president Bush, who apparently sees no problem taking a full month’s vacation while most Americans get a miserable two weeks, spread out all year to provide a little bit of relief from work. We should support candidates who are in favor of more holidays and more vacation time. The lack of leisure time is a market failure, mostly induced by the tipping of the scales of the “free market” towards corporate business interests. See above.

The Worst SCOTUS Decisions ever, part I

After my aside about Bush v. Gore a few days back, it occurred to me that many of the readers of my site might not have the faintest clue what I’m talking about when I reference Bad Decisions of the Supreme Court; or more likely even than that, might recognize names like Dred Scott but not remember what the case said. So, let’s get into a little bit of constitutional jurisprudence. The Supreme Court of the US (SCOTUS) is the highest court in the land, and although the Constitution doesn’t say so, it has since its early history used that status to judge the constitutionality of various laws passed by Congress or the states. Mixed in amongst the many correctly decided cases and landmark decisions that protected our rights and defended the Constitution are several cases that were decided wrongly, or are generally repugnant. In no particular order, some of the worst SCOTUS decisions ever (likely to be a recurring series):

• Barron v. Baltimore (1833) Opinion by: John Marshall. This case determined that due to the “Congress shall make no law…” language at the beginning of the First Amendment, that the Bill of Rights only proscribes actions by Congress, and not the states. Why is this such a bad decision? Oh, this is an awful decision. First, amendments to the Constitution should be interpreted severally, and not as a whole; the bit about Congress only should apply to the first amendment. Second, this decision set back the cause of libertarians well over a century; as it held that states were free to abuse those rights set out in the bill of rights. Free speech? Forget that, it was Alabama infringing your rights, not Congress! Barron’s bad precedent began eroding with the passage of the 14th amendment, when it explicitly made equal protection a requirement of the states as well as federal government, but it wasn’t until the twentieth century that most of the bill of rights was held to also apply to state governments.



• Korematsu v. US (1944) Opinion by: Hugo Black. In Korematsu, the action of the military forcing Japanese Americans into internment camps was upheld by the SCOTUS, despite the obvious racism (i.e., the fact that Americans of German or Italian descent weren’t treated in a commensurate fashion). It’s a bad decision because the action in question violates equal protection on its face. Obviously.



• Dred Scott v. Sanford (1857) Opinion by: Roger Taney. Read the link for a full explanation; this was an extremely important case, at least for a while. Dred Scott was a slave who was taken to several free territories, who then sued under the terms of the Missouri Compromise for his freedom. He lost. It was a very bad decision because a) it determined that he wasn’t a person, meaning b) it determined that he was never a citizen, and thus had no basis to sue, and c) it was a political decision meant to shore up slavery as the nation’s mood was changing against it. This decision is often said to be one of the causes of the Civil War. This decision was overturned by the 14th amendment.



• Plessy v. Ferguson (1896) Opinion by: Henry Brown. Plessy was a black man who sued under the equal protection clause against segregated railroad cars. He lost. Why was this bad? Well, this was the famous case that legalized the absurd doctrine of “Separate but Equal” as a way to circumvent the 14th amendment’s prescription of treating all of our citizens alike. Not until 1954, with Brown v. Board of Education would this shame be overturned. Great quote from the dissent, written by John Harlan:
  

  Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law...In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case...The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficient purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution.
  

And then there’s always Bush v. Gore, which was an awful decision because it was blatantly political, it violated stated majority doctrine (namely, to stay out of states’ affairs), and misappropriated Equal Protection arguments in a way never done before and wholly without precedent.

Countdown to School Continues

I am anxiously counting down until I begin Law School. After today, I have only eleven days of full time work left. I am very excited. As part of preparations I’ve been looking for a laptop computer. I like this one, but it’s pretty expensive. I have a penchant for gadgetry and the DVD player just makes me drool. I also want a GPS device and a wind-up flashlight, too. A webcam would be neat too, but I’d just use it to point at Relffits’s tuffet so she can be looked at during the day. That would be a pretty neat feature for this site, wouldn’t it? RelffitsCam?


With Bush’s right wing extremist actions undercutting his “I’m a uniter, not a divider” rhetoric, it makes me hope that John McCain will indeed run a splinter campaign in 2004. Even though McCain’s history shows that he’s as dirty as any other, at least he’d make Bush lose.