Category Archives: morality

A Judge’s Ruling on Female Genital Mutilation

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Charges related to female genital mutilation were dismissed last week against Detroit doctor Jumana Nagarwala, who has a history of performing such “surgeries.”  Federal District Judge Bernard Friedman, of the Eastern District of Michigan, ruled that Congress had overstepped its authority in passing a law banning this FGM.

Sadly, the judge was right.  That law, passed in 1996, was done under our Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce (along with trade with foreign nations and with the Indian Tribes).

However, Friedman wrote,

That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. … There is nothing commercial or economic about FGM.  As despicable as this practice may be, it is essentially a criminal assault…. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged….  There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce.

The law as passed is plainly unconstitutional.  But why not allow the law to stand, anyway, given its attempt to bar [a]s despicable [a] practice as FGM?  Because, as Chief Justice William Howard Taft wrote 100 years ago in the Child Labor Tax Case,

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

As Friedman noted, seemingly in consistence with Taft, in his 21st century opinion,

As laudable as the prohibition of a particular type of abuse of girls may be…federalism concerns deprive Congress of the power to enact this statute.

And

FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

Here, though, Friedman has understated the case.  This is a Federal concern, and it is within the scope of Congressional authority to address FGM.

Congress must repass this law—though why it chose the Commerce Clause as the underpinning is beyond me—and it must address Friedman’s Federalism concerns.  One obvious path is that the protection of all Americans collectively and the liberties of each American individually are the role of the Federal government; some protections cannot be left to the individual States to effect—or to choose not to effect.  This is why free speech and religion, the right to keep and bear arms, protections against excessive searches—indeed, the entirety of our Bill of Rights—are Federal concerns, with only the means of implementing them left to the States.

Certainly, there needs to be a limit on what is considered a Federal crime (or civil prohibition or requirement)—even murder is a State crime and not a Federal one, as it should be.

But surely our inalienable right to the pursuit of Happiness, which John Adams explained so eloquently carries within it the rights of personal property and of personal security, is a Federal concern, not a matter to be left, federalistically, to the States.  That property right necessarily includes the property every individual has in his own person, and that security right necessarily includes the safety of that property in person (and more generally, the safety of the person himself), especially.  This was acknowledged overtly when we fought—and won—a civil war over slavery.

It must be the case, too, that that property and that security must include control over what is done with any part of an individual’s body and who permits the doing or refuses it, and FGM can and must be as protected against as the evil of enslaving the whole of an individual’s body or mind.

Accordingly, Congress must repass this law, or something very like it, but it ought to be passed under 5th Amendment’s due process clause

nor shall any person…be deprived of life, liberty, or property, without due process of law

and under the 14th Amendment’s due process clause

…nor shall any State deprive any person of life, liberty, or property, without due process of law

And that due process plainly allows a Congressional bar against clitorectomy/female genital mutilation.

That won’t put Nagarwala back on the hook for her past practices of mutilation—criminal laws that are retroactive are anathema to liberty—but it will allow for criminal prosecution and jailing of future such butcheries.

 

Friedman’s ruling can be read here.

A Necessary Start

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Secretary of Education Betsy DeVos is on the verge of issuing actual rules (not “guidance” letters) directing the way in which colleges and universities must handle accusations of sexual assault.  These rules will include

  • the right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined
  • both the alleged victim and the accused would be able to inspect and review all evidence
  • All Title IX hearings would include cross-examination, which could occur in-person or by live stream, with campus adjudicators allowed to observe the demeanor of witnesses as they assess credibility
  • statements of anyone who refuses cross-examination could not be considered in the final determination Title IX judges would be required to consider both inculpatory and exculpatory evidence.
  • acknowledges that schools’ “treatment of both complainant and respondent could constitute discrimination on the basis of sex”
  • both the alleged victim and the accused would enjoy the same opportunities for appeal, and, if both parties agreed, administrators could offer informal resolution processes like mediation
  • universities could still use a weaker “preponderance of evidence” as the standard of proof, similar to civil cases, rather than a higher “clear and convincing evidence” standard.

The proposal is a good start toward redressing the inequities of the Obama administration’s infamous Dear Colleague Letter, but there remain a couple of serious weaknesses.

One is the continued use of the preponderance of evidence standard.  The problem with this is that accusations of assault, whether sexual or other, are accusations of felonies.  That demands the clear and convincing evidence standard.  Related to this is the investigation and adjudication itself.  Such accusations demand the police and a criminal court conduct the investigation and trial, not the school and its administrators.  Sexual harassment accusations also need a more serious standard of proof than 50%-plus-one-minim of belief.

And: as long as acquittals—however a college/university wants to style them—are appealable by the accuser, there still is no justice possible in the proceedings or the rules that structure them.

That Progressive-Democrats object even to this nod toward justice, though, is instructive for 2020 and what a Progressive-Democrat Congress and White House will do to individual liberty.

Bullying

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You can’t wear the clothes you can afford to buy, that are good quality, and that look nice without being ostentatious (you can’t wear your ostentatious rags, either, come to that).  That’s bullying, don’t you know.

That’s the attitude of the Church of England’s Woodchurch High School in northwestern England (it’s across the Mersey from Liverpool—yes, that Mersey).  They’re pretending to “poverty proof” their school, so they sent a letter to their students’ significant overseers (the institution actually refered to “parents/carers”:

As you are all aware from an email that was sent out yesterday, pupils will not be permitted to bring in Canadian (sic) Goose and Monclair (sic) coats after the Christmas break.

In the name of anti-bullying, then, this school’s management is going to bully a different group of kids.  Because clothes make the child, not what he’s taught about character.

Their hypocrisy stinks.

Schism?

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The US Conference of Catholic Bishops met last week to consider, among other things, two important mutual accountability proposals that would begin to address the Catholic Church’s history of child molestation by members of the Catholic priesthood—some of whom have gone on to rise in the ranks of Church hierarchy.  The proposals also were simple enough: one simply applied a zero-tolerance policy for sex abuse, and the other would have created an independent review board to investigate claims against bishops and refer credible cases directly to the Vatican.  (I’ll elide the latter’s being a matter of having the weasel rule on alleged violations of the hen house.)

Then Pope Francis told them to sit down and shut up.  Which they meekly did, without action on those proposals.

What to make of these bishops’ timidity? One conclusion is that fealty to a Church prince is more important than protecting our children.

Here’s Archbishop Salvatore Cordileone of the San Francisco Archdiocese on the matter:

We’ve heard how important it is to listen to our people.

Sure. But what’s the value of “listening” if you won’t act on their concerns?  Or better, knowing these things are happening, act on your own initiative, not needing to have the concerns of the parents surfaced first as though if they don’t speak up, there’s no problem?

How will we discriminate your “listening” from your simply hearing a noisily empty cacophony?

Do we need an American Catholicism separate from the Vatican’s Catholicism, loosely (perhaps very loosely) analogous to the Church of England’s separation from the Vatican? One that keeps (most of) the foundational tenets of Catholicism, but that also holds the safety of children sacred?

After all, the Church of England was born of a concern for children, too, albeit from a different direction.

CNN Strikes Again

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That’s fairly literal, this time.  CNN‘s “star” reporter on the White House beat, Jim Acosta, struck a White House intern who was trying to do her job.  Since then, CNN has denied—and it’s actually serious about it—that the strike ever occurred.

“She [White House Press Secretary Sarah Sanders] provided fraudulent accusations and cited an incident that never happened,” CNN said.

The blow was delivered during a presser President Donald Trump was holding and near the end of a contentious exchange between Trump and Acosta.  During such pressers and as a normal part of presser procedure, reporters wishing to ask questions are called on by the President and handed a microphone so that the President, all the other reporters in the room, and especially all of us in TV-land watching can hear the reporter’s question.  The intern, as was her job, had approached Acosta to take the microphone that had been handed him on being called on so that, his turn having ended, she could pass it to the next reporter, that person having just been called on.

Acosta refused to give up the microphone, and when the intern tried to grab it anyway, he chopped down on her arm with his free hand.  That’s clear in the video Fox News has included in its piece (the link above) on the incident.  The intern’s approach and Acosta’s hitting her begins at about 0:22 of the video.

That video clearly shows Acosta striking the intern as she tried to do her job. Not a hard blow, certainly, but Acosta striking the woman at all is unacceptable. Bad as that is, though, CNN‘s pride in and open lie about Acosta’s misbehavior is worse—CNN seems to be validating its reporters getting physical with anyone who gets in their way, including others trying to do their job.