Virtual Bourgeois

Just An Analog Guy Trying to Upgrade For a Digital World

Archive for the ‘law’ Category

George Bush Augustus

Posted by Gerald on July 20, 2007

This has got to be the most astonishing thing I’ve heard from this White House, and damn that is saying something.  The administration will not allow the US Attorney to pursue contempt charges in any case where the President has invoked executive privilege – because that is the end of the argument as far as the executive is concerned.  In essence, the President gets to define his own powers.

Read about it here.

I particularly like the rationale of a “unitary executive” in which the US Attorneys are “emanations of the President’s Will.”  Why is it that these so called “strict-constructionist” Neo-Cons are so enamored with autocracy.  Even if the American Presidency is supposed to have been modeled on the British Monarchy (or so they claim), the 18th C. British kings were LIMITED monarchs.

I always knew these guys think George Bush is LIKE a Roman Emperor – I didn’t realize they think he IS a Roman Emperor.

Posted in America, Bush administration, Congress, Constitution, Federal Courts, law, news, opinion, politics, thoughts, United States | Leave a Comment »

Yes Virginia, There is a Legislative Branch

Posted by Gerald on July 16, 2007

The L.A. Times has published a nice little primer on executive privilege.

Posted in America, Bush administration, Congress, law, politics | Leave a Comment »

Here we go…

Posted by Gerald on July 8, 2007

It is looking more and more like the Presidential election cycle is going to coincide with a major-league showdown over the Constitution.  The Washington Post is reporting that, as expected, the White House is going to deny the latest demand Congress has made for documents in Attorneygate.  Read the story here.

This and the appeals from Gitmo are going to be the real tests to see what the Roberts court is about.  We’ve got some disheartening views so far, but this is going to be the opportunity to see whether the Supreme Court is going to really do its job, or if it has been made into a rubber-stamp for conservative administrations.

Posted in America, Bush administration, Bush Legacy, Congress, Constitution, John J. Roberts, law, news, opinion, politics, Supreme Court, thoughts, United States | Leave a Comment »

Bush and the Republicans – Soft on Crime

Posted by Gerald on July 4, 2007

Okay, back at it.

The New York Times has reported on a debate beginning among legal scholars in the wake of the President’s commuting of Libby’s sentence because it was “too harsh”.  Read it here.

Some of the arguments Dubya cited for commuting ol’ Scooter’s sentence were the same arguments that defense lawyers have been using AGAINST the Justice Department about sentencing in Federal criminal cases.  Bush has, in essence, given a new precedent for convicted criminals in the Federal courts to use to lessen their sentences.

Chaos theory in action?

Posted in America, Bush Legacy, Federal Courts, law, news, opinion, politics, Scooter Libby, United States | Leave a Comment »

Those Activist Judges…

Posted by Gerald on July 3, 2007

They go around handing down sentences and punishing people for commiting felonies!

Luckily, Dubya was there to preserve justice for poor Scooter.  In the most unsurprising action the President has taken this year, he has communted Libby’s sentence.

I guess we should just be happy it wasn’t a full pardon.

Yet.

Update:  Bush isn’t ruling out a pardon.

Posted in America, Bush administration, George W. Bush, law, news, opinion, politics, United States | Leave a Comment »

Is Optimism Appropriate?

Posted by Gerald on July 1, 2007

Friday, the Supreme Court, an institution that has caused me a bit of despair this week, has reversed its decision from April and agreed to hear appeals from detainees in Guantanamo Bay  Read more about it here.

I’m hoping this is a good sign.  Certainly the judicial philosophy of the court is going in a decision I dislike, but perhaps this shows some promise that the Roberts court is going to be willing to take on its full role as a branch of government rather than leading the way to the courts becoming the judicial lapdogs that the administration seems to want.

I am deeply concerned about the turn this week’s decisions signal for the court, but I would find it comforting to find some evidence that even justices who disagree with me might still support the full function of Constitutional checks and balances.

I guess we will see.

Posted in America, law, news, opinion, politics, Supreme Court, U.S. Constitution, United States | Leave a Comment »

Insane or Not?

Posted by Gerald on June 29, 2007

Scott Panetti was in and out of mental hospitals (oh, thanks for saving us from socialized medicine, conservatives) before he killed somebody.  At his trial he represented himself.  He wore a purple cowboy outfit and called the Pope, JFK, and, oh yeah, JESUS as witnesses.  This not being evidence of insanity in Texas, he was convicted by a jury of his peers (I’d like to meet his peers – but only under clinical circumstances) and sentenced to death.

The Supreme Court, on a 5-4 vote (gonna need a macro for that – I’m going to be typing it a lot) voted to order the Federal District Court to review Mr. Panetti’s claims of insanity.

A quote from the dissent by Justice Thomas – this is a “half-baked holding that leaves the details of the insanity standard for the District Court to work out”.

Maybe they could start by using the purple cowboy suit test?

Posted in America, Clarence Thomas, death penalty, law, news, opinion, politics, Supreme Court, United States | 1 Comment »

Please Take Action to Save Troy Davis

Posted by Gerald on June 29, 2007

Troy Davis has been on Georgia’s death row for several years after being convicted for the murder of a police officer.  The problem is that several witnesses have recanted their testimony, there is no physical evidence in the case, and there are irregularities associated with his trial.

Please read more about this situation and if you agree help Amnesty International in its campaign to save Troy Davis’s life.

Posted in America, Amnesty International, death penalty, Human Rights, law, opinion, taking action, United States | Leave a Comment »

Civil Rights and Individual Rights

Posted by Gerald on June 29, 2007

Several people have been discussing the two decisions by the Supreme Court striking down the voluntary desegregation programs in Louisville and Seattle.  You can read some details here and you can see some of the discussion on my friend Bridgett’s blog at My Beautiful Wickedness

 

I believe that the Supreme Court’s decision today reflects long-standing issues in the law – what are civil rights laws meant to do – and one of the biggest questions confronting the American experiment – are individual liberties always more important than public needs?  It isn’t like these questions are new.  Figures like Hobbes, Locke, and Rousseau (among many others) have put forward answers.  It is a sign of how difficult this is in practice, as opposed to theory, that none of these brilliant people have come up with an answer that works all the time.  Today’s decision reflects a vision of American society as being essentially atomic.  Each individual is isolated and separate.  The preservation of their separate rights is the paramount duty of the law.  What this leaves out is any idea of America as a community.  It says we are always a group of individuals, we are never one nation.  As such, the decision is not surprising.  Isn’t this exactly the view we see reflected throughout our culture?  It is the double-edged sword of individual rights.

It is simplistic to try to define today’s decision as a racist view versus a non-racist view, which supporters of both sides are already doing.  Each side is using a different definition of what the idea of “rights” means and a different idea of how those rights are to be protected.  There is a big question at the root of the division of the court.

Do civil rights laws exist to protect the individual civil liberties of each American or do these laws exist in order to affect a set of social changes concerning how this society deals with race?

To date, the existing laws have tended to use the first of these goals as a justification for policies aimed at the second of these goals.  Each American is supposed to be guaranteed certain rights; therefore we must build a society which will overcome the racial divisions of our past.  In the beginning, the issue was ending a system of state-mandated racial segregation.  Over time, school desegregation became a tool to try to end the de facto segregation of American society.  In education, this has led to the idea that it is of vital importance that students be brought together in multi-racial educational institutions so that most people will be starting from the same place.  This vision says that integrated schools will create an integrated, and equal, America. 

This idea has been questioned, and not just by avowed racists.  African-American parents have questioned the “assimilation” of their children.  Parents of all races have deplored the relocation of children to other neighborhoods.  Also, in order to do this, some students have found themselves denied access to schools they wanted or found themselves forcibly reassigned to schools they didn’t want on the basis of their race.  Certain individuals had their liberties infringed upon in the name of a certain vision of the common good – but what about the rights they were guaranteed?  Thus we had legal challenges to existing programs intended to promote racial diversity in schools, all of which leads to today’s decisions by the Supreme Court.

The position taken by the Roberts, Alito, Scalia, and Thomas portion of this decision is that the whole attempt to use schools to fix American society is misguided.  The only important issue is the individual liberties of each student.  The government must be racially blind when dealing with these students.  The government cannot force them out of a school due to their race; the government cannot assign them to a school due to their race.  The government must pretend that race doesn’t exist.  If it does, this reasoning goes, there will be no racial discrimination in law and that is the only thing that government or the courts should concern themselves with.  This argument says that we are a nation of individuals and individual rights are all that matter.  Government must not infringe on the rights of the individual for any reason.

Justices Breyer, Ginsburg, Souter, and Stevens dissented in the name of the traditional vision of civil rights law.  Breyer’s dissent argued that there is a difference between race-based programs of exclusion and race-based programs of inclusion.  This is the idea that the ultimate goal of equality in America is an important enough public goal that the abridgement of some individual’s liberties is justified.  This is an argument that a communal good occasionally outweighs private needs.  This argument says we are sometimes a group of individuals, but we are also one nation.  Sometimes what is good for the group must take precedence.

Justice Kennedy’s concurrence shows the tilting point.  He agreed that the way race was used in these school systems – as an individual sorting method – was illegal, but he allowed that the goal of social change was something the schools, and hence the government, could legitimately pursue.  This is a significant difference in philosophy from the Roberts group.  I think there is an argument to be made that the divisions of the court, like the divisions in Congress, simply represent a much divided public mind.

I cannot agree with the Roberts group.  I think that the view of an atomic society that they and other neo-Conservatives put forward will create a Republic that cannot stand.  This legal reasoning is dangerous to us as a nation because it denies that there is any “us” at all.

But is the law the real problem here?  Isn’t there another set of questions we need to ask?  The reason for the Louisville and Seattle programs is the continuing geographical, economic, and social segregation of America.  Why, five decades after Brown are we still living in an America with “black” neighborhoods and “white” neighborhoods?  I tend to favor the position of the dissenters on the court, but there is still a valid question to ask about why school desegregation hasn’t produced the America its promoters envisioned.  If we are going to come back at the supporters of this decision, and the thinking behind it, we are going to need answers more compelling than “if we just give it more time it will work.”  I think I’ve been hearing someone use that as an argument for “staying the course” in another area, and I don’t buy it there so why should they buy it here?

We’ve got work to do people – and only a small part of it is about voting and law.

 

Posted in America, American culture, American history, desegregation, individualism, inequality, John J. Roberts, law, news, opinion, politics, Samuel Alito, Supreme Court, U.S. Constitution, United States | 14 Comments »