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Thursday, March 31, 2005

Schiavo's due-process interests mirror "actual innocence"

Terri Schivo's due-process interests are virtually identical to the "actual innocence" due-process claims that The Innocence Project has been pushing for the last decade. As DNA evidence started proving convicts innocent, there was no provision in the law for reviewing cases on grounds of actual innocence. Restrictive habeas corpus rules meant that only procedural flaws could prompt reconsideration. Surely the failure to take clear proof of actual innocence into account in the appeals process must fail to satisfy minimum necessary due process standards. This is a federal issue because, under the Fourteenth Amendment, the federal government is charged to insure that the states uphold at least a minimum standard of due process before depriving life, liberty or property. This argument has been effective in attacking the death penalty in many states, and it led to the passage of the federal Justice For All Act of 2004, making sure that convicts and defendants are able to get the DNA tests that might clear them of guilt.

Try to find a difference between these "actual innocence" claims and the Schiavo case. The Florida courts ruled that Schiavo is a vegetable. This has not been subject to review, in spite of substantial evidence that she is NOT a vegetable, and in spite of her husband’s refusal to allow anyone to test whether she is really a vegetable. Shouldn’t "actual consciousness" trump a flawed judicial finding of no consciousness the same way that proof of "actual innocence" is now taken to trump a flawed judicial finding of guilt? Both fall under the exact same Fourteenth Amendment requirement that the states comply with necessary minimum standards of due process before depriving life or liberty.

This is a serious due-process issue. Reviewing it is a fulfillment, not a violation, of federal constitutional obligations. Neither does review in any way constitute government interference with individual choice. On the contrary, it protects individual life and liberty from a deficient legal process.

Other due process concerns also arise. How in the world can a man who fought with his wife the night she suffered unexplained brain damage be allowed, in the absence of any criminal investigation into her injuries, to speak for whether she would want to live? That is insane, especially in the face of contrary evidence about what she would have wanted. In the absence of a "living will," why is what the competent Terri would want the only thing that matters, when the damaged Terri seems to want to live? In the absence of a "living will," why doesn't it matter that her parents want to care for her?

All of these are valid issues, and would certainly be legitimate subjects for federal legislation under section 5 of the Fourteenth Amendment (empowering Congress to legislate due process and other Fourteenth Amendment requirements). Whether they MUST be addressed to satisfy due process requirements is much less obvious. Novel claims of due process rights generally don't fare too well in the courts. This is what makes the "actual innocence" parallel particularly interesting both legally and politically. "Actual innocence" is not a novel due process claim anymore. It is the outstanding recent innovation in due process litigation and has the standing to be taken seriously. On the political side, liberal civil rights lawyers have embraced the "actual innocence" cause. How then can they be indifferent to evidence of "actual consciousness"?

Imagine if Congress passed a special law asking for due-process review in the case of a rape/murder convict who had never been DNA tested for innocence and instead of complying the courts said that there is nothing further to review. Imagine if Congress subpoenaed the convict before he was put to death so it could apply its own test of actual innocence (consciousness) and the courts insisted that the convict be killed before Congress could administer any tests. That would be an exact analogy to what has happened in the Schiavo case.

UPDATE: Rest in peace, live in memory.

UPDATE: Ann Althouse suggests by email that the difference between criminal and civil law changes everything:
In criminal cases the state is required by the Constitution to prove guilt. In the case of a private person receiving medical treatment, that person has a right to REFUSE treatment, so I don't think your argument is going to work.
This critique seems to suggest that, where attention to actual innocence works in favor of a defendant's rights, attention to the truth of a patient's condition will tend to cut against the patient's rights. In general, this cannot be correct. Recognizing the consciousness of a conscious person keeps her life from being ended on false premises. If she wants to refuse treatment, she can still refuse treatment, and if she cannot speak for herself, the court can try to determine, from a living-will or from statements she made when she was competent, whether she would want to live in the condition she is in. Representing her condition accurately should only improve the accuracy of this process. Thus in general I think Althouse is wrong. Attention to actual consciousness cuts in favor of a patient's rights, just as attention to proof of actual innocence cuts in favor of a defendant's rights.

It is possible, however, that the Schiavo case presented a particular combination of circumstances where Althouse's analysis is correct. Suppose Terri Schiavo was conscious, but did want to die, as her husband testified she would have wanted. Right Wing News claims that in Florida, nutrition cannot be legally withheld unless the patient is in a Persistent Vegetative State (see RWN's last FAQ). Under these circumstances, Terri's wishes could only be fulfilled by having the courts ignore the truth about her condition. But this wouldn't be the normal circumstance. The normal expectation must be that accurate information serves the patient's interests, in which case the analogy between actual consciousness and actual innocence holds.

Friday, March 25, 2005

Another awesome find by Eaglespeak

I have been wondering when the United States would come out with a statement that our objective is not just to spread democracy, but republicanism (the system of liberty under law). Now we have this from Rumsfeld’s newly released National Defense Strategy of The United States of America:
The United States and its allies and partners have a strong interest in protecting the sovereignty of nation states. In the secure international order that we seek, states must be able to effectively govern themselves and order their affairs as their citizens see fit. Nevertheless, they must exercise their sovereignty responsibly, in conformity with the customary principles of international law, as well as with any additional obligations that they have freely accepted.

It is unacceptable for regimes to use the principle of sovereignty as a shield behind which they claim to be free to engage in activities that pose enormous threats to their citizens, neighbors, or the rest of the international community... (From part I.A., hat tip Eaglespeak.)

Spot on baby. We believe in democratic institutions, but if a democracy chooses to act in unrepublican/criminal fashion (if it uses its liberty to attack the liberty of others) then we may have to have a war. Freedom entails responsibility.

So far democracies have an admirable record of not aggressing, but as democracy comes to the Muslim world, it is very much in doubt whether this record will continue. In Algeria, the Islamists won elections and the democracy had to be suppressed. Now we have decided that we have to let Muslims elect who they want. Of course we have to warn them that they are going to be held responsible for their choices.

Rumsfeld is the most reliable man in government. Rumsfeld for President in ’08! (Condi for VP.)

Eaglespeak looks at a lot of stuff that most people miss. Definite value added. Give him some visits.

Proper due-process vs. substantive due-process

I told my mom a couple of weeks ago that I thought the conflict over the Schiavo case stemmed less from the different opinions of left and right than from distrust between left and right. Democrats (and even libertarians) were somehow seeing this as a right-to-die case, rather than what seemed to me to be an obvious case of the wrong person (an estranged husband) being allowed to decide who dies. But the left does not trust the right. The presumption on the left is that the right wants to interfere because it doesn't believe that people who can be saved should be allowed to die, and there may indeed be a small number of people on the right who believe that the right to life is incompatible with a right to die.

Personally, I am not only pro-right-to-die, but I think that government needs to get out of the business of subsidizing the costs of dying (through Medicare) so that the dying will be forced to come to grips with the question of how much of their children's inheritance they want to spend on dying. Subsidization passes the cost on to everyone else's children so that no one feels too bad about a half million dollar death bill. People would feel a little differently if the cost of dying were to take that big a bite out of what they had hoped to pass on to their own children. But I don't share left wing distrust of conservatives. Thus I don't see the Schiavo case as indicative of larger right-to-life issues. The straight-forward due-process issue is enough. The Constitution charges Congress with making sure that life not be deprived without due process of law. Letting a husband pull the plug on his estranged wife who left no “living will,” when she seems to want to live, and when she has parents who are willing to care for her, does not seem to meet necessary minimum due process standards.

A handy way to disentangle the due-process issue from the larger right-to-life issue is to distinguish due-process proper from the controversial jurisprudence of “substantive due process.” According to the Fifth Amendment: “No person shall be … deprived of life, liberty, or property, without due process of law.” This would not seem to place any limits on the purposes for which people may be deprived of life, liberty or property, so long as laws are duly passed and the process of law duly followed. Under the doctrine of “substantive due process,” however, the due process clause was used to place limits on the purposes for which due process could be used to deprive life, liberty or property.

There is pretty broad agreement now that "substantive due process" was a mistake. The proper place to locate unenumerated liberty rights is in the Ninth Amendment’s assertion that unenumerated rights “retained by the people” do exist. (At a minimum, the Ninth would seem to compel recognition of the rights to life, liberty and the pursuit of happiness asserted in the Declaration of Independence.) They cannot be found in process per se. Due process can insure that people's interests be properly weighed, but that is all.

So long as Congresses due-process interest in the Schiavo case is limited to due-process proper (making sure that Terri Schiavo’s interests are properly represented in the legal process) then broader right-to-life issues are kept off the table. Right-to-life issues are not about the fairness of the legal process itself. They place limits on the purposes and outcomes that the legal process is directed towards. If they are pushed under the due-process rubric they constitute “substantive due process,” which ought to be eschewed. Thus the distrust between left and right might be bridged if Congress would specify that its only interest in the Schiavo case is in due-process proper, not in any larger "substantive due-process."

Yeah, I know. Jay Leno could do a funny “man in the street” bit asking people what they think “substantive due process” means. Or maybe people would be so oblivious that it wouldn’t even be funny. Still, poll results indicate that people basically get the distinction. Last year a Fox News poll found fifty percent thinking that a spouse should be the one to decide whether a persistently vegetative person lives or dies, a third said the person’s parents should decide, and two percent said government should decide. Wednesday’s CBS poll found that 9% think the federal government should decide life-support cases, 13% think state governments should decide, and 75% think government should stay out. By “stay out,” nobody can think that there should not be a legal process. In the Schiavo case, there is no option for the government to stay out. The question is how to honor the competent Terri Schiavo’s wishes when she is no longer competent to speak for herself. That is what an inquiry into due-process per se would focus on: making sure that Terri Schiavo’s interests are represented.

As for federalism issues, they are the same here as in any other Bill-of-Rights case. Under the doctrine of incorporation (where thanks to the Fourteenth Amendment, the Bill of Rights now restricts state as well as federal government), the federal government is charged with setting minimum standards of protection that the states can meet however they wish. So long as the states satisfy the general requirements of “ordered liberty,” present Constitutional interpretation does not require that the states all employ the same means to that end. States can and must have leeway to sort out due process requirements for themselves, so long as they do not fail to achieve a necessary minimum of protection.

Federalism does not free the states from their obligations to satisfy due process requirement in medical-termination decisions any more than in death penalty cases or voting rights cases, and this is good. No advocate of keeping government out of private decisions should want to see unbounded federalism. Due process proper will require that a patient's wishes be accounted. With unbounded federalism, states could trample patient's wishes however they want.

UPDATE: To wrap up my point about the left-right divide being more about distrust than about substantive differences of opinion, note the broad agreement in the polling that end-of-life medical decisions should not be determined by government. Only 2% in the Fox poll think government should tell people what to do in these situations. Yet the left somehow thinks that conservatives want government in these decisions. The clear implication of the polling is that what conservatives want is to repair what seems to be deficient due-process. They want Terri’s wishes to be honored, but do not believe that Michael Schiavo is a reliable spokesman for her wishes, and the Florida courts have dismissed enough contrary evidence to make it plausible that they may be biased against Terri’s continued existence.

Maybe this is the nub of the issue. SHOULD the courts be biased against Terri's continued existence? SHOULD society’s scarce resources go to maintaining the life of someone who no longer has any capacity to make a contribution and who has little capacity to even enjoy life? If it were public money being spent on Terri’s maintenance, this would be a relevant question, and one which I would answer in the negative. What public money is spent on those who cannot pay for their own medical care should be allocated to those procedures that have the highest medical benefit per dollar spent. Terri Schiavo's care falls near the bottom of that list. But there is no issue of public money here. Terri's parents want to care for her. Still, left and right will view this differently. The left believes that everyone’s money is public money and there is no firm distinction to be made between what is efficient for society and what should be allowed for individuals. Conservatives believe that if you want to spend your money caring for a brain damaged daughter, that is your own business.

Is this what the distrust is ultimately about? Is it about collectivism vs. individuality? Is that why the left seems blasé about Terri’s rights being blatantly trampled? Are they more horrified at the waste of keeping her alive? If so, they should focus instead on getting government to stop subsidizing death costs through Medicare and Medicaid. For those whose concern is for society (which should be all of us) the goal should be to get rid of socialism. Socialism is what produces social inefficiency. Individual choice, whether informed by religious or by secular understanding, is not the problem.

UPDATE II: Patterico (who is an L.A. prosecutor) has weighed in with what looks to be the definitive analysis of the federal due process rights at stake in the Schiavo case that can be secured on established precedent.

(I think my post on the analogy between "actual innocence" and "actual consciousness" is a sound one, but the headway that has been made on using actual innocence as a grounds for review has so far come mostly through legislation, not the courts. There are strong due process arguments to be made here, but they are for the most part not yet supported by precedent.)

Patterico focuses on Claim Eight of the Schindler's Second Amended Verified Complaint which holds that:
89. The United States Supreme Court, in CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990), 497 U.S. 261 (1990), determined that the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.
Patterico notes that Judge Whittemore dismissed this claim via clearly fallacious reasoning. The Court in Cruzan held that the "clear and convincing evidence" standard was sufficient to satisfy federal due process requirements. Whittemore "deduced" from this that application of the "clear and convincing" standard was not a necessary condition for satisfying federal due process requirements, an obvious non-sequitur. Patterico next goes on to show how the Court in Cruzan virtually asserted that, had the issue of necessity been at issue in Cruzan, it would have ruled that the "clear and convincing evidence" standard is necessary to satisfy due process.

Patterico then nails the case by citing Jackson v. Virginia, 443 U.S. 307 (1979), where the Court asserted that, when federal rights are at stake, the federal courts are not just to see to it that the state courts apply the correct federal standards, but that they apply them satisfactorily:
A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. . . . A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court.
In sum, Patterico shows that the Shindler's had a strong due process claim that should have been reviewed by the federal courts, both on the law and the facts. It looks to me like he has an airtight case. He also addresses the distinction I make above between substantive and procedural due-process. Well worth reading.

Defiance of Congress must not be allowed to stand

Anne Coulter is right. It is time for the legislative and executive branches to disregard judicial rulings and exert their proper constitutional powers in the Schiavo case. The courts have defied a congressional subpoena that calls for Schiavo to testify (alive) before Congress, and they have defied the express intent of the recently passed law that Schiavo’s case be considered anew. Both actions of Congress fall fully within its proper constitutional powers. The Fifth Amendment says that life shall not be deprived without due process of law, and under the doctrine of “incorporation,” the Fifth Amendment applies to state actions. At the same time, Congress is empowered to pass laws “necessary and proper” to the enforcement of all constitutional provisions. Thus Congress is empowered to pass laws setting minimum due process standards that states must abide by in arriving at life-terminating decisions.

The Schiavo case is a proper subject for Congressional scrutiny, both in itself, and for the light it casts on the propriety of the current legal process. One the one hand the case raises fundamental issues, turning the doctrine of a “living will” on its head. Instead of needing to establish a “living will” in order to protect one’s right to die, it now appears that one needs a “living will” in order to keep from being put to death. (Hat tip Yippiee Kai Yay.) The Schiavo case also provides a test for the propriety of the existing legal process. The case looks to be a can of worms. Terri’s husband Michael has refused to allow tests to be performed that would determine Terri’s level of brain activity. Two nurses have filed affidavits claiming that Michael managed her care abusively. One filed a police report claiming evidence that Michael tried to kill Terri with insulin injections, leading to the nurse’s firing. On the other hand, Michael’s defenders tell their own compelling story of his integrity. Hauling all the doctors and nurses before Congress and getting to the truth would reveal much about the integrity of the judicial process as it now stands. Does leaving the life-termination decision entirely up to an estranged husband adequately represent his wife's interest in determining whether she should die? In the absence of a living will, why is the fact that her parents are willing to care for her given no weight?

When the courts defy the legitimate powers of the other branches, the remedy contemplated by the framers of the Constitution is that the other branches should slap the courts down, either ignoring their rulings or taking action against them. Hamilton does not say this explicitly, but it is implicit in his claim that judicial power is checked by the inherent feebleness of the judicial branch: that it possesses “neither FORCE nor WILL, but merely judgment,” and “is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.” (Alexander Hamilton, Federalist 78.)

That jeopardy must be real in order for the power of the judiciary to be checked, as it is supposed to be. If the co-ordinate branches of government simply submit when the courts defy proper constitutional powers, then the courts assume tyrannical power and the system breaks. This has been happening since the New Deal, and exactly as Hamilton warned. Liberty is only safe “so long as the judiciary remains truly distinct from both the legislature and the Executive.” (Federalist 78 again.) But in the New Deal, the Court became a lackey. Its job is to uphold the master servant relation between the people and their representatives: “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” In the New Deal, our representatives were unwilling to be constrained by the Constitution. To get around the system of limited enumerated powers, FDR tried to expand and pack the Court, which knuckled under to the pressure. Thus was the Court empowered to write a new Constitution.

The original plan was that if the Court ever substituted its will for the people’s in this way, it would be checked by the superior power of the other branches, but in the New Deal, the other branches were encouraging the Court to throw over the Constitution. The other branches gave up their power to check the Court in exchange for the Court delivering them the unconstitutional power they craved. This is the deal-with-the-devil that needs to be undone. The Schiavo case is only the merest symptom. Restoring limited powers will at this point require constitutional amendments. But we can start by reaffirming the founding understanding that the courts are, by design, the weakest branch of government, intended to be deterred from usurping power by being in constant jeopardy from the more powerful branches of government. That jeopardy has to be real for the system to function. That means, at the least, that if we reach the present extreme, where the courts are flat out defying the legitimate powers of Congress, they must not be obeyed.

On a more detailed note: Hamilton was cognizant of the danger of the courts usurping legislative power but dismissed it on the grounds that there is nothing to be done about it! “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.” His point is that the only alternative to an independent judiciary is to not have a distinct judiciary at all, which would be even worse. We might as well get as much of a separation of powers as we can by having an independent judiciary, and make it as independent as we can by giving judges life tenure, conditional only on “good behavior.”

Hamilton’s analysis of this point elides the full danger of judicial power. He makes no distinction between the danger of will and judgment occurring together in the legislature and will and judgment combined in the judiciary, but in fact there is a huge difference. The people can recall their legislative representatives after four years if they don’t like how they are performing. Judges, in the constitutional scheme that Hamilton was urging ratification for, are appointed for life. It is easy to see why Hamilton did not delve into this difference, since he was arguing for life terms for judges. Delving into the heavier cost of mixing will and judgment under life terms would cut against life terms. Thus Hamilton understated the case against judicial power.

Still, Hamilton made the critical point: that the danger of will and judgment being combined in the judiciary is checked by the fact that the judiciary is “beyond comparison the weakest of the three departments of power.” That weakness depends on the court’s jeopardy—its liability to being overpowered should it misbehave. When it does misbehave, that check needs to come into play, or we have been usurped. That means that the recent court rulings in the Schiavo case should be ignored. Schaivo’s care should be taken over by either the president or his brother, while Judge Greer should be arrested for flouting Schiavo’s congressional subpoena.

UPDATE: Ann Althouse has taken a close look at the Schiavo bill and says that Judge Whittemore did not flout the law. The bill only authorized de novo consideration of federal claims, which would be the claim that Terri's due process rights were not fulfilled in the decision to deprive her life. Althouse says that the "feebleness" of Terri's due process means they fail to meet the criterion for further consideration: that they present a likelihood of succeeding on the merits.

I do not think it is so obvious that Terri's due process claims are feeble. A tremendous amount of evidence against the reliability of Michael Schiavo as a spokesman for his wife's wishes seems to have been dismissed. If this can be traced to something deficient in the Florida process--the deference it gives to spouses, perhaps, in spite of impugning evidence--that could be a proper matter for federal review. There is also the question of whether due process is satisfied when, in the absence of a living will, speculation about what the person would have thought when competent is given complete precedence over what the person of diminished capacity actually thinks. There is evidence that Terri does not want to die--that when asked she howled in protest. Why aren't her present wishes given any weight?

These are serious federal questions that cannot simply be dismissed without looking into them. But Judge Whittemore did simply dismiss them. I don't know what issues Terri's lawyers raised, but it seems pretty arrogant of Whittemore not to think the issue through enough himself to see that it might raise unsettled questions. That said, the obvious flouting (and the one I have focused on) is Judge Greer's flouting of Terri's congressional subpoena.

Congress can go further in specifying due process requirements than the Court can. Thus, for instance, we have the voting rights act of 1965. The Court could not have required all the voting-rights remedies that Congress specified in the voting act. By the same token, if it turns out that Terri's lawyers have no valid due-process claims to press under Terri's law, that doesn't mean that there are not due-process requirements that Congress could legitimately impose. State's must be allowed flexibility. They must be allowed to achieve "ordered liberty" in whatever satisfactory way they can discover. But it is not only within the power of Congress to set a minimum standard for what constitutes a satisfactory level of "ordered liberty," it is also an obligation. This is Congress’s job, and looking into the Schiavo case is pursuant to the fulfillment of that obligation.

In sum, it is certainly possible that there is no compelling argument to be made that Terri's due process rights REQUIRE reconsideration of her case (though this result cannot be dismissed out of hand). At the same time, there is no doubt at all that Congress has the power to set due process requirements that could affect Terri's case, and that it can properly call her as a witness pertinent to such legislation. Whittemore MIGHT not have flouted the law. Greer definitely did.

UPDATE: Powerline posts a different quote from Hamilton, urging use of impeachment when a check on the Judiciary is needed. That is a useful tool, but not quite to the point. It does not overturn the particular judicial outrage needs to be checked, but only responds to it with a punishment. Sometimes, checking the judiciary will require direct overthrow of judicial rulings. Where impeachment will suffice, it will probably be preferable.

Monday, March 21, 2005

Environmentalists are not innocent on DDT

Tim Lambert claims that the reason Malaria suppression efforts moved away from DDT was not because of pressure by environmentalists but was because mosquitoes developed resistance to DDT, causing DDT to become ineffective. (Hat tip Belmont Club.) Lambert acts as if it is some big revelation that there is no legal ban on the use of DDT for Malaria suppression in third world countries, as if those who blame malaria deaths on the 1972 EPA ban have somehow been lying to everyone about the law.

The actual complaint against the environmentalists is that they demonized DDT, as epitomized by the '72 ban, turning Western support for its use into active opposition, despite DDT's continuing (if diminished) effectiveness. This story is much harder to document than a legal ban because some of the drop off in the use of DDT for Malaria suppression WAS due to the build up of DDT resistance, caused by agricultural use of DDT. But this decrease in effectiveness has been far from total. DDT remains today the most effective malaria fighting tool. As Steven Milloy notes at Junkscience.com (citation I.9) mosquitoes that are not killed by DDT are nevertheless powerfully repelled by it, making the spraying of DDT in people’s homes an effective way to reduce transmission. See, for instance, WHO's "10/90 report 2000" study of Malaria in Sub-Saharan Africa. (10/90 refers to the "10/90 gap" between rich and poor.) The report finds that DDT is the most cost effective suppression tool (fig. 3.5) yet concedes that "the use of organochlorines and organophosphates, such as DDT and malathion, has declined due to concerns about their environmental and safety impact," (p. 60).

Paul Driessen's chapter on Malaria in his book Eco-imperialism compiles evidence of under-use of DDT due to environmentalist opposition, often enforced thorough government agencies like USAID. This issue needs a lot more study and documentation, but Lambert's assertion that the decline in DDT use is simply due to its lack of effectiveness is just ignorant. From there he goes on to make asinine digs about right-wingers not believing in evolution. (He links to Steve Milloy’s rejection of the suggestion that evolution should be classified as a “law” rather than a “theory” as evidence of Milloy’s “half-hearted belief in evolution,” as if Newton’s laws were not a theory.) Lambert claims to have looked at Milloy’s website. Did he miss Milloy's quote from Robert Desowitz?
There is persuasive evidence that antimalarial operations did not produce mosquito resistance to DDT. That crime, and in a very real sense it was a crime, can be laid to the intemperate and inappropriate use of DDT by farmers, especially cotton growers. They used the insecticide at levels that would accelerate, if not actually induce, the selection of a resistant population of mosquitoes. (Citation I.8)
It isn't Milloy who misunderstands the state of immunity to DDT, but Lambert, who wears his bigotry on his sleeve. Check out what he says in his comments thread. Aaron Swartz can’t figure out why conservatives care about third worlders dying:
Why do these guys care about DDT so much? Do they get some funding from the DDT industry or is it just a convenient way to bash environmentalists? (Possibly because it goes after Rachel Carson, the "head" of the environmental movement?)
Lambert answers:
While Milloy gets money from chemical companies, they only make DDT in a couple of factories in India and China, so it's not specifically about DDT but more about bashing environmentalists to weaken them on other issues that Junk Station clients have a financial stake in.
Lambert is a full-out moonbat! These leftists literally cannot figure out why anyone cares, yet Lambert has no trouble pulling elaborate slanders out of his ass.

UPDATE: Thread Safe rounds up reporting on western aid organizations who have made aid conditional on third world countries abandoning DDT.
In the early 1990s, for example, the United States Agency for International Development stopped the governments of Bolivia and Belize from using DDT. In Madagascar, the United Nations Development Programme tried to persuade the government to replace DDT with Propoxur, a less effective pesticide. To its credit, Madagascar refused. In Mozambique, both NORAD, the Norwegian development agency, and SIDA, its Swedish counterpart, said that they could not support the use of DDT, as it was banned in their own countries. (From The Economist).
Read the whole thing.

One point Lambert makes that is correct (again, in his comments section) is that environmentalists deserve credit for stopping the agricultural use of DDT which everyone agrees was a horrible mistake, ruining our chance to eradicate Malaria once and for all. That is no excuse for thirty years of opposition to the effective use of DDT, but it was indeed a good thing.

Looking around Lambert's website, boy does this guy get into a lot of pissing contests. Pretty strange for a guy who seems at many points like he is actually looking into things and trying to be conscientious. I think it is just not easy for a person to actually BE conscientious when he his instinct is to constantly try to twist things to fit his presumptions. Just a tiny sample detail: Lambert accuses Kristoff of fraudlently telling people that DDT is banned worldwide, but the Kristoff line he quotes is:
Environmentalists were right about DDT’s threat to bald eagles, for example, but blocking all spraying in the third world has led to hundreds of thousands of malaria deaths.
Kristoff got it exactly right (well, except about the eagles). DDT has not been banned worldwide (not for lack of trying) but it HAS been blocked. Kristoff's reward? Lambert pisses all over him! Can't he even stop to think straight for a fellow leftist like Kristoff? Yet he really seems to have a wish to be conscientious, if only he could grasp what that actually means. Very strange. Very strange.

Saturday, March 19, 2005

Cherry picking negativism from the good Iraq news

Preliminary poll results released four days ago found that optimism has turned dramatically upwards in Iraq since the January elections. 62% of Iraqis now say that the country is headed in the right direction, up from 42% in September. Only 23% say it is headed in the wrong direction, down from 45% in September. Ranting Profs notes a story in yesterday's New York Times that follows the Times's usual strategy when poll results don't fit its preferred narrative. Just pretend you haven't seen the poll results and publish anecdotal evidence of unrelieved negativism.

Today our local champion of left-wing disinformation, the San Francisco Chronicle, employs the same ruse. In "Young Iraqis cast doubtful eyes toward their future," Chronicle reporter Colin Freeman quotes a grand total of THREE pessimistic Iraqis (only one of whom, on close reading, actually seems to be pessimistic) in support of his conclusion that: "What few Iraqis doubt, though, is that compared to the same time 12 months ago, things seem notably worse."

One can see Mr. Freeman (or his stringers) prospecting Baghdad with their picks and sourdough bread, searching-searching for that special ore hidden somewhere beneath all the proud purple fingers: that elusive Iraqi who thinks that things were much better a year ago, and maybe even better under Saddam Hussein. Alas, all that they can come up with is a neurotic artist who finds his sensitive nerves too frayed for painting when terrorists are killing people. Freeman's two other interviewees seem to be plugging along just fine. One's tale of woe is that his chance to get rich off of a pop tune went bust thanks to passport difficulties. The other is woman who goes to college and has a job. "Security does worry me," she says, and she carries a knife in case she gets attacked. "I'm thinking of buying a small ladies' .22-caliber pistol, too. Many other girls I know already carry them."

The fact that she is armed ("distinctly unladylike") is Freeman's justification for characterizing her as a pessimist, but a more optimistic bit of information is hard to imagine. Apparently Iraqis have gun rights. Expect Iraq to very shortly have a lower crime rate than any of the thirteen American states that still guarantee their criminals a safe working environment.

In addition to these three pseudo-pessimists, Freeman cites three negative indicators:
Iraqi security forces, hunted endlessly by insurgents, now patrol the streets in sinister-looking balaclava masks for fear of being recognized. Most foreign businessmen have fled, save for a few selling armored cars and flak jackets. And the mobile phone system has become virtually unusable after being massively overloaded.
A year ago there were no Iraqi security forces for the insurgents to attack. The idea that there ever was an influx of foreign businessmen (save a few selling armored cars and flak jackets) is absurd. And can any sane person really think that the growth of Iraq's wireless industry to the limits of its capacity is worse than the previous condition of NO wireless industry?

That's it. That is his roundup of evidence. Not a single hint that anyone, anywhere, might think that things are getting better. Pure, relentless, disinformation.

Re the Eason Jordan scandal: anyone who reads the mil-blogs knows that many of our soldiers in Iraq, seeing this kind of disinformation reported in the American press every day for the last two years, see the left wing press as literal traitors, doing their absolute best to serve the enemy's cause and to undermine ours. Perception is clearly a large part of this war, when the confidence of the Iraqi people is crucial to our winning their cooperation in finding and eradicating the terrorists. In this battle for hearts and minds, the press treats every nugget of bad news--every bomb blast, every cry of Iraqi despair--as a nugget of gold, to be separated from the overwhelming dross of daily progress in rebuilding Iraq and killing its tormentors. That Colin Freeman is on the side of the terrorists is an undeniable fact. His dishonesty is an undeniable fact, and it is blatantly in the service of the terrorist cause.

So of course Jordan assumes that the soldiers are shooting reporters on purpose. After all, that is how the Jordan and his ilk act. They are not bound by any rules of reportorial integrity (not the reporters who Jordan identifies with), and he cannot conceive how someone else's mind could be so different from his own. How could a man with no integrity possibly conceive of a person who does have integrity? It is impossible, and this in general is how the press can be so shameless, populated by hundreds of Colin Freemans. They do not comprehend that there is such a thing as moral and intellectual honesty. The official moral philosophy of the left is postmodernism: the neo-Marxist conceit that there is no such thing as truth, only power. That is the culture of our left wing media. They cannot be shamed because morality is inconceivable to them.

Previous posts on Chronicle malfeasance:

Freedom of speech for churches?

Got full information?

Lying that Bush lied

Kerry, Bush on same page militarily?

Chronicle logic: redundant resolve = lack of resolve

SF Chron buries Australia, slanders Afghanistan

Did Chronicle editors turn a Sadr City report into a characterization of all Iraq?

Reporters favor "stingy" interpretation

Friday, March 04, 2005

Judges must not grant clemency

Michelle Malkin relates the case of a judge who gave a rapist probation on the grounds that he is an important brain researcher. (Too important for prison?) She doesn't like it:
... that shouldn't matter in a court of law. McIntosh did the crime; he should do some time.
Absolutely right, and the reason is because exceptions to equal due process are the exclusive prerogative of the executive branch in the form of the power to grant clemency.

Judges have leeway to assess a criminal's proper punishment according to the three due process grounds for punishment: deterrence, incapacitation, and retributive justice. Thus for example, if it seems that some basically harmless person made a criminal but not malicious mistake, incapacitation would not be a big concern. He isn't very likely to do it again. In the McIntosh case, however, there is was pre-meditation (it was a "date rape" drug attack). That brings it up to the par of recidivism. Simply Kimberly notes the aggravating circumstance and concludes: "He belongs in prison."

Deterrence, incapacitation and retribution all call for substantial punishment in this case, implying that the judge has granted clemency on the basis of the convict's other value to society. The judge even admitted that this other value was his grounds for leniency (again quoting Malkin):
In explaining his decision, Means said he "factored in McIntosh's important work with stroke victims and brain injuries," according to the Daily News.
Judges who grant clemency are violating the separation of powers. The main reason the executive is allowed grant unequal procedural justice is to achieve a more perfect equal justice, by granting mercy in the rare case where procedure has arrived at a clearly unjust result, but the door is left open for the executive to consider other value to society as well. That door is not left open to judges. Equal procedural justice is the foundation of the rule of law.

Imposing foreign standards of 'cruel and unusual' violates republicanism

If adversion to international standards could be tenable anywhere in Constitutional law, it would be in locating standards of "cruel and unusual punishment," as the Court just did in rejecting the death penalty for minors. Unless one wants to question judicial review itself, the Constitution leaves it to the Court to locate the boundaries of what must be deemed cruel and unusual. So why not look to what is unusual around the globe, or in other advanced countries, rather than to what is unusual as We the People understand it? Because adversion to international standards of decency and law is a betrayal of the fundamental principle of republicanism: that the people are sovereign. The Court cannot set aside national sovereignty. This is not just an ideal. This is a constitutional requirement.

One of the Supreme Court's greatest failures is its failure to enforce the guarantee to the states that they shall have a republican form of government. Since the states are under the federal government, this gurarantee requires that the federal government must also abide by the fundamental principles of republicanism. The Supreme Court has a number of times now recognized and accepted Alexander Hamilton's statement that “the true principle of republicanism" is "that the people should choose whom they please to govern them.” (Hamilton, 2 Debates on the Federal Constitution, p.257, J. Elliot ed. 1876, cited by the Supreme Court in Powell v. McCormack, 395 U. S. 486, 541 (1973), and in U. S. Term Limits v. Thornton, 514 U. S. 779, 795 (1995)). In other words, the Court has accepted that the fundamental principle of republicanism is the sovereignty of the people. The laws come from the people, and the Constitution comes from the people's understanding of the natural right (in particular, the natural right to liberty), and of how most effectively to protect natural rights (through the separation of powers, etcetera). Thus we come to the second meaning of republicanism, as understood by the Adamses: that republicanism is the system of liberty under law.

While the Supreme Court has recognized that the sovereignty of the people is the fundamental principle of republicanism, it has mistakenly found this protection to be non-justiciable on the grounds that questions of republicanism inherently involve conflict with the other branches of government in areas where the Court is called upon to defer. This was true in the particular cases which formed the Court's Article IV, section 4 jurisprudence, but it is not true in general. Formative cases either proposed republican requirements that were not really republican requirements, or instead of just trying to overturn unrepublican laws, they also tried to nullify actions already taken by other branches of government under those laws. For instance, instead of just trying to overturn an unrepublican election law, formative suits tried to overturn the executive's certification of election results.

These deficiencies are all remediable. Unambiguously necessary republican principles can be asserted in cases that only try to strike down laws, not invalidate actions already taken under the challenged laws. On very careful reading of the case record, the Court did leave this possibility open, though it did not acknowledge this gap in its dismissal of the guarantee clause. With the correct case, and an accurate reading of precedent, guarantee clause claims should succeed. (To see where the door is left open, see my lawsuit against the State of California over its unrepublican election laws. Scroll down to Part II.)

Unrepublican adversion to foreign legal standards is only one recent consequence of the Court's failure to enforce the republican guarantee. Another is the issue of free speech rights and academic freedom for fifth-columnists like University of Colorado professor Ward Churchill, with his championing of the terrorist attacks on America. The fact that Churchill is a public employee would make firing him a government act, which raises the possibility that firing would violate Churchill's free speech rights. But the much larger issue is the fact that the very institution of public education, at any level, violates the fundamental principle of republicanism: that the ultimate power to decide what is to be judged right or wrong resides with the people. With public education, the government presumes to tell the people how they should judge, overturning the proper master/servant relation between the people and the government. Ideally, all education should be private. If there are externalities to education, creating a market imperfection that calls for government intervention, the correct intervention is in the form of subsidization, not socialization.

We already blew that. We have granted government this vast unrepublican power to tell the people how they should think. If we don't fix that, any solution is a compromise. Of course there are dangers in giving the people control over public universities. Public universities should not exist! But in this situation of compromise, the question is which is the greater violation: to have public universities that are under the control of the people, or to have an unaccountable government power telling the people what to think? Clearly an improper role of government allowed without accountability to the people is worse than an improper government role of government with accountability to the people. The whole issue of tenure really isn't a free speech issue at all. It is a republicanism issue, and it comes out exactly the opposite way than the speech issue points, but we get the issue wrong because the Court has failed to ever adjudicate a single guarantee clause claim! Because of the Court's failure, we are completely blind to what is really at stake.

The republican guarantee is a central pillar of our constitutional structure, but one that the Supreme Court kicked out from under us long ago. We have been hobbling along ever since. If we don't want to collapse into an Anthony Kennedy-esque pile of mush, we need to get the guarantee clause properly adjudicated.

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