Tag Archives: rights

Justice and Law

Posted on by
Reply

An Indian, a Creek, stands accused of murdering a fellow tribesman.  He was arrested on the Creek’s Oklahoma reservation, and with that, he’s demanding that he be tried in Federal court rather than in an Oklahoma State court.  The matter of which court should have jurisdiction, which centers on the existence or absence of the Creek Nation reservation in Oklahoma, now is before the US Supreme Court.

The government’s lawyer, US Deputy Solicitor General Edwin Kneedler, declaimed

This would be a dramatic change from the way everyone has understood it for the past 100 years[.]

He continued:

[A]ny crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the US attorney resources, the other resources.

With that he argued—with a straight face—that the government’s convenience is legitimate reason for denying justice.  On the contrary: if government agencies lack the resources to do their jobs, it’s Congress’ responsibility to get them the resources, not an individual’s responsibility to surrender his right to justice.

It gets worse, from no less a light than Justice Brett Kavanaugh, especially in light of the fact that Congress has not—ever—abolished the Creek reservation, even as it has, step by step, removed critical aspects of Creek Nation sovereignty on that reservation:

Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?

That’s a breathtakingly Brandeis-ian view of justice from an avowed textualist.  It’s better, opined Brandeis—and now Kavanaugh—that the law be settled than that it be settled right.  Wow.

Here’s the depth of the injustice that’s being argued should be maintained:

In treaties dating from the 1830s, the US pledged to “secure a country and permanent home to the whole Creek nation of Indians,” yet in following decades it took official and practical steps that stripped them of both power and property.

And, with no hint of irony whatsoever,

[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part. Since Congress never expressly voted to abolish the reservation, attorney Lisa Blatt, representing Oklahoma, pointed to a series of steps that she said effectively did the same thing—abolishing tribal courts, canceling tribal taxes, making tribal law unenforceable, compelling the tribe to sell its property.

And the governments’ lawyers argued further that correcting this long-standing injustice would present chaos to the State and to the Federal governments: that lack of resources mentioned at the outset and, given the size of the Creek reservation compared to the size of Oklahoma, to the manner in which the State would have to enforce its laws.

But this is a cynical distortion of the matter.  The chaos already exists in the loss of access to justice for all those decades of years. Certainly, there would be some disruption were the governments involved required to correct their ancient error, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the instability of an arbitrary breakage of it.

That an injustice has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.

Guns and Killings

Posted on by
Reply

This, from no less a Liberal outlet than the Chicago Tribune.  John Lott, Jr, Crime Prevention Research Center President, provided some gun-related killings statistics for the Tribune.  He began by defining what constitutes mass killings, a term too often bandied about without definition.  The FBI’s definition is what he used.

  • shootings must claim four or more lives in a public place
  • shootings must be carried out simply with the intention of killing
    • excluded are gang fight killings because they tend to be motivated by battles for drug turf
    • excluded are murders incidental to other crimes
    • excluded are politically motivated attacks, such as assassinations or killings pursuant to guerrilla conflicts

The he came to the actual data.

Of the 97 countries where we identified mass public shootings,

  • the US ranks 64th per capita in its rate of attacks of the 97 countries with mass public shootings
  • the US ranks 65th in fatalities.
  • Tightly gun-controlled European countries, such as Norway, Finland, France, Switzerland and Russia, each have 25%+ higher per capita murder rates than the US

In the interval from 1998 to 2015, there were

  • 2,354 attacks and at least 4,880 shooters outside the US
  • 53 attacks and 57 shooters in the US

The US has 4.6% of the world’s population but only 1.49% of the murders, 2.20% of the attacks, and less than 1.15% of the mass public shooters worldwide.

And: of all the mass public shootings that have occurred since 1950 98% have occurred in places where citizens are banned from having guns.

What’s missing from the research is all the mass shooting attempts that have been short-circuited or stopped altogether by citizens on scene when the incidents began—the true first responders—who had firearms on their person and so could respond inside the two-five minutes that even a talented, trained, and motivated policeman and police force will need to arrive—after the call, with its intendent delay, goes out.  Occurrences illustrated by these anecdotes.

  • a concealed handgun permit holder stopped an alleged killer who was shooting blacks at a Kroger grocery store in Louisville, KY
  • armed off duty policemen stopped a mass killer wannabe before he could get started at a Draw Mohammed contest in Dallas, TX
  • two gunmen in College Park, who herded party-goers into separate male-female groups and then compared the number of bullets they had with human targets were stopped by one partier who was able to reach his pistol, engaged the two, killing one

A Judge’s Ruling on Female Genital Mutilation

Posted on by
Reply

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.

Mexico Says It’s Not a Safe Country?

Posted on by
Reply

President Donald Trump has said that the US and Mexico have reached an agreement—at least in principle (although Trump is his usual more definitive self)—that those seeking asylum in the US will remain in Mexico until their asylum cases have been heard and acted on by the US.  The Washington Post has claimed to quote incoming Interior Minister Olga Sanchez Cordero as saying so, too.

However, Sanchez Cordero says that she said no such thing to WaPo.  In fact, she says that no such deal, no Remain in Mexico program—”of any sort”—exists.  Given that newspaper’s record of honest reporting, I believe Sanchez Cordero.

What interests me about her statement, though, is this:

The future government does not consider […] that Mexico assumes the status of “safe third country” for Central American migrants, or from other countries, who are on Mexican territory or for those who will reach it in the future[.]

There are a few interpretations for this statement.  One is that Mexico doesn’t consider itself to be a “safe” country of any sort—a recognition that would be consistent with the corruption rampant in the Mexican police at all jurisdictional levels and with the broad power held by the several drug cartels that operate freely throughout Mexico.

Another is simply that Mexico doesn’t want the legal liability that would accrue from accepting that status.

A third is that rejecting the status is not the same as declining to make an exception for the current “caravan” of persons claiming to seek asylum in the US after having explicitly rejected Mexico’s offer of asylum.

It’ll be interesting to see how this plays out.

A Necessary Start

Posted on by
Reply

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.