Antinome

The Ticking Time Bomb and Torture

I got into a somewhat heated discussion about torture with some people I work with.  Of course the trite and extreme ticking time bomb scenario came up as well as the if you could torture someone to prevent 9/11, would you question.

The counter question that I think is better  (now that I have had 24 hours to think about it, hence the mot d'escalier category) is:

How many Americans would you torture to prevent another Oklahoma City Bombing?

Prickly City summed up the truth of the torture "debate" in one four panel cartoon

Oh Come On

While it is dated February 14, 2008 this Oliphant political cartoon just ran in the Houston Chronicle on the 18th.  Really, was it necessary to run the smoke in such a way as to connect the L and the I.  There is no way this is an accident.   Just a nice bit of incredibly offensive, barely subliminal sexism.

The Mystery of Gretel's Husband, resolved

So I finally obtained a true first edition of Hans Brinker (as opposed to the many versions that claim to be first editions but were published many years later).  As it turns out the first edition does not identify who Gretel's husband is, the comment about the boy who wore the red hat is a later addition. 

This of course leaves one to wonder why someone felt the need to just stick in that particular detail in the work of someone else.  ( I guess it is possible that Dodge added it herself later but since it appears in none of the other editions, this seems unlikely.)  Well whoever it was, I am relieved that their somewhat weak choice for Gretel's husband is not canon.    

Hmm I wonder how many other Gretel's Husbands are floating out there in other works.

Sharia and Sedition

Andrew Sullivan links to this post by Paul Cella, where Cella, in an aside, suggests that the sedition laws be expanded to cover those who advocate the promotion of Sharia laws.  His argument appears to be that the implementation of Sharia as a set of religious laws would be incompatible with a republican form of government. 

So the question is does his new sedition law apply to this guy, who equates democracy to terrorism; advocates the implementation of biblical law, and the succession of Texas from the Union?  By the way  this guy is running in Texas for Senator and previously ran for governor in 2006.  As I previously commented, in 2006 he got 7.6% of the Republican primary votes.  Should those 49,626 Republicans also be charged with sedition?

To be clear, I don't think sedition laws should apply to these people.  If free speech means anything it must include advocacy of changes in government including changes in the constitution.  But if we are going to talk about sedition applying to people advocating religious law, the ones advocating Mosaic law are much more widespread than those advocating Sharia.

The Mystery of Gretel's Husband

Growing up one of my favorite books was Hans Brinker or the Silver Skates.   For whatever reason the book struck a chord in me and I made it a tradition to read it every year for many years running.    As an adult I have collected several copies.

The book's main characters include Hans Brinker and his little sister Gretel, Peter van Holp and Hilda van Gleck.  Even though the book is titled Hans Brinker, large parts of the book don't really have anything to do with him and focus on other's perspectives.  A large bit is a travel log through Holland (written, amusingly, by an American author who had never been to Holland).  The climax of the book is a big skating race.  The book concludes with an epilogue chapter that gives brief descriptions of the various characters later life.  Here is what I always read growing up about Gretel:

The story of Hans Brinker would be but half told if we did not
leave him with Gretel standing near.  Dear, quick , patient
little Gretel!  What is she now?  Ask old Dr. Boekman, he will
declare that she is the finest singer, the loveliest woman in
Amsterdam.  Ask Hans and ...., they will assure you that she is
the dearest sister ever known.  Ask her husband, he will tell you
that she is the brightest, sweetest little wife in Holland.

While Hans's wife is identified two paragraphs before (I have cut her name out of the quote -can you spoil a 150 year old book?)  Gretel's husband is not identified, nor is there a love interest in the book that would be the obvious choice.   I always kind of liked that her husband was someone outside the narrow confines of the book.

One day I had a bit of a shock, I was leafing through one of my various editions that I had acquired over time and saw printed on the page this:

Ask her husband, --him who wore the red cap on the day of the grand skating race: you will learn that she is the brightest, sweetest little wife in Holland.

Huh?  Where did that come from.  She married who?!?    I don't approve.  The boy in the red cap is a silly show off and clearly not worthy of Gretel.

The mystery is why is it not in any other version of the book that I have.  The book that contains the extra line is not the oldest one I have.  So did some editor just up and decide the book was incomplete and declare that Gretel's husband just had to be identified?  Or did it get dropped along the way and this book is actually correct?  I am clearly hoping for the former.

I have been trying to get a first edition, which is the only way I think to solve the mystery of Gretel's husband.  I ordered one online but it turned out to be out of stock.  Still looking.

This post has been one I have been meaning to make on my rarely updated blog for a while.  I finally got around to writing it because of all the comments on the Harry Potter epilogue I have been reading and the info it leaves out.  I wonder if some enterprising editor will eventually insert a longer epilogue in it.

Adventures in Solo Dining

I go out and eat by myself fairly often.   One of the many perils of doing this is the often frustrating often surreal "overheard" conversation.  You are trying to read your book but you just can't filter out what ever odd or insipid thing someone is going on about you.   

The other night I am sitting in a booth and two twenty somethings are seated directly behind me.  At some point they both start going off on a rant on political correctness and how people have to complain about everything and have no life all punctuated by profanity every sentence.  At first I kind of missed what was the trigger for this rant going on directly behind my head.        

Then  I start piecing it together. 

On each table in this particular restaurant is a drink menu.  On the cover is a photograph of a man and a woman seated at a bar.  The man has a blue drink in a martini glass; the woman has a beer in a mug.  I had noticed the picture before and I admit had given brief thought to how the picture ran counter stereotype by having the woman hold the beer and the man with the cocktail ( I also had given about as much thought to how incredibly stiff and almost sour both look in the picture).   Apparently though this photo was just wrong to my accidental dining companions.  That they had given her the beer was a sign of how political correctness was ruining everything.

Sigh I wanted to turn around and point out that the photo had done its job and grabbed their attention, but of course did not. That would have been rude. 

Its not a Slippery Slope...

if you have already been down the hill.

According to the Washington Post in addition to adding torture without remedy to U.S. law, some are proposing the that the CIA be allowed to secretly detain in definitely and torture anyone who:

'"has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or its military allies'

Further such people have no right to habeas corpus or judicial review.  Now consider:

• 1.  Nothing apparently limits this bill to foreign nationals.
• 2. The Bush administration has already taken the position that it could detain a U.S. citizen (Jose Padilla) in an airport in Chicago for years without charges and fought his attempts for judicial review based solely on an affidavit claiming he was an "unlawful combatant"

Therefore this proposed bill gives the right to detain U.S. citizens without charges or trial or any sort of review indefinitely and subject them to torture.  I never thought I would see the day when the U.S. would create a secret police.

All of this in addition violates Article III Section 3 of the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Unlawful enemy combatant is a fancy word for traitor.  People (note not citizens)  accused of treason must be tried and convicted of treason in a court  and in fact there is specific limits of the evidence against them .

Perhaps foolishly I have always believed that the United States of America was better than most other places because it was founded on the idea of fundamental liberty and that at its core the people believed in those liberties.  Every day the Bush administration and its allies further disabuse me of any such notions.

Via Atrios and Kevin Drum

Senate to Ban Pictures of Mohammed

This week the Senate is set to debate amending the constitution to ban the depiction of Mohammed in any form:

Majority Leader Bill Frist (R-Tenn.) cast the debate in loftier terms. "Many Americans have come to see Mohammed as a sacred symbol of our nation and its values," he said. "Those who dislike American values have the right to express their opinions even when they are offensive. But I do not believe that the right to desecrate the image of Mohammed belongs in the same category."

Of course, its not Mohammed  Frist is talking about, but the flag.  How many Americans have to think something is sacred before I lose my right to criticize it, mock it, express my contempt for it, "profane" it.   Lots of people believe Jesus is their Lord and savior and lots of people think Christianity is special part of our nation and its values.  Why not amend the constitution to prevent the denial of the divinity of Jesus? 

Seriously, is it really necessary to piss on the constitution and its principles to "protect" the flag. ( By the way should we have a law banning the desecration of the constitution)

Wow this truly is an annual subject, please see this post .  Why it seems particularly to get me upset is this:  I truly believe that the United States of America was founded on a set of ideals that make it better than nations that are merely geographic nation states.  What should unite us is not our race or culture but a belief in a certain set of principles.  This amendment truly seems to me a betrayal of those principles.  Its not the only one going on today of course, torture, indefinite detention of (at least one) U.S. citizen without charges or a lawyer(till they were forced to), hiding behind the national security privilege (where the hell is that in the constitution). 

49,626 Republicans

7.6% of Republican primary voters, 49,626 Americans, voted for a candidate for governor whose express platform was for Texas to secede from the Union and impose biblical law including death penalty for adultery, homosexuality, abortion, and whippings for graffiti, porn, and strip clubs. (1) (2) I try to can tell myself  that these votes were protest votes against Perry or that these are "Gene Kelly"(3) voters and that nigh 50,000 people don't actually want to secede and create their own theocratic state, but its not working.  I have listened to too much "christian" radio driving around the state (good for staying awake).  No these people voted for Kilgore because they agree with him. 

I don't like throwing the word traitor around since I think one of the great rights in the constitution is the limits on treason.  But it seems that advocating tearing off a chunk of the country and making your own country out of it is at a minimum a tad disloyal.

(1)  "1-40 lashes for crime of maliciousness, like graffiti, porn, strip clubs. (Deuteronomy 25:1-3)"  Not sure how he extrapolates the citation to porn, graffiti and strip clubs, it seems more to have to do with civil suits, more like the English rule on steroids.  Instead of the loser paying the winner's costs, the loser gets whipped.  Quite frankly kind of surprised the Republicans haven't introduced that as part of tort reform.

(2)  He also advocates the death penalty for rapists, citing Deuteronomy 22:25.  He kind of cherry picks his citation there, no word on whether he would execute a rape victim who fails to cry out in in the city Deuteronomy 22:23-24 or force an unbetrothed  rape victim to marry her rapist Deuteronomy 22:28-29.

(3)  There is certainly a history in Texas of people voting for candidates because their name is familiar, sounds Hispanic does not sound Hispanic etc. 

Due Process and Parental Rights

There has been a lot of talk about about the the religious right wanted to President Bush to appoint justices in the mode of Justices Scalia and Thomas: "strict contructionalists" or "originalists."  Justices who won't read unenumerated rights into the constitution or like Scalia says that regardless of whether such rights exist ths Courts have no power to enforce them.(1)

I understand why the religious right dislikes the outcome of substantive due process, privacy and unenumerated rights: sex, abortion, and gays.  But in one area the right and particularly the religious right (and even more particularly in the world of home schooling) loves substantive due process and unenumerated rights:   "Parental Rights"

This article from the Home School Legal Defense Association lays out the case law in favor of parental rights and concludes:

The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test.

As can be seen from the cases described above, parental rights have reached their highest level of protection in over 75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to maintain and protect parental rights for many years to come.

Troxel v. Granville the plurality (Justice O'Connor, joined by The Chief Justice, Justice Ginsburg, and Justice Breyer) based its decision on true 14th amendment substantive due process:

  The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.

Neither Scalia nor Thomas's judicial theories protect Parental Rights.  Scalia dissents:

  In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Thomas concurs but makes clear he would rule the other way if  substantive due process had been challenged:

I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.

Parental rights are a fundamental liberty and so is privacy.  If you have the right to control a child you have the right to control yourself.

Harriet Miers is said to be a Strict Constructionist.  If the democratic senators are smart, they should ask good questions about her support of parents rights, home schooling then segue into liberty and substantive due process without ever mentioning privacy.

(1) I wonder if Scalia missed the whole "there is no right if there is no remedy" day in first year law school.