The Curmudgeonly Clerk
Sunday, September 14, 2003
Forwarding Address:After much trial and error, I have made the transition over to another host and Movable Type. My new site may be viewed at:
No new entries will appear here. However, I will leave this site up a while in order to provide notice of my new address. I have imported/exported all of the entries on this site over to my new digs, so all posts can be viewed there as well.
Friday, September 05, 2003
Academic Freedom at Indiana University:You may have noticed that the link to Professor Rasmusen's minimalist weblog (see sidebar) has unexpectedly changed locations. Eugene Volokh points to this Indiana Daily Student article and explains that Indiana University is clearly violating the First Amendment. Dean of the Kelley School of Business Dan Dalton, the administrator responsible for this constitutional infraction, may be e-mailed here. Let him know what you think.
Professor Rasmusen is back at his university web address. He explains the situation here.
Professor Rasmusen has a lengthier post up on the controversy today. Interestingly, he defends Indiana University's conduct and maintains that the whole story was blown way out of proportion from the very beginning. He writes:
Soon the Dean's Office at my business school was getting lots of complaints about my web-log. The Dean asked me to meet him late on a Thursday afternoon to talk about it. We talked, and I offered to move my web-log off the IU computers, and to keep fairly tight-lipped, until the Dean had time to reflect and to check with the University about whether my web-log was in violation of IU policy. He checked, learned that my web-log did not violate IU policy, and called me back the next day to say that I could move my web-log back, which I did.
The emphasis is mine. It seems to me that the entire incident was, more or less, a non-story that was created by some apparently inaccurate (and irresponsible) student reporting that maintained that Rasmusen's weblog had been removed at the university's request:
Professor Eric Rasmusen, who teaches multiple courses in the Kelley School of Business, was asked to take his opinions off a University Web page by Kelley School of Business Dean Dan Dalton, Thursday.
There are, of course, people on campus who do very much desire to shut Rasmusen down. However, Dalton is apparently not among them, nor is anyone else within the administration of Indiana University. The university's reputation for academic freedom has been unnecessarily and inaccurately tarred and feathered, and I regret having unwittingly assisted in the process by relaying the bogus charges.
Hit Parade:Judge Sam Sparks compiles a periodic newsletter for the District Judges within the Fifth Circuit. It is always informative and entertaining. Among other things, he critiques recent decisions by the Fifth Circuit Court of Appeals He generally bestows "awards" on these decisions—awards that you frequently would not want the distinction of winning.
In the most recent issue, Judge Sparks decided to associate each award with a song and headed to the Internet for inspiration. He reports:
. . . [M]y investigation into sources of songs on the internet provided some interesting moments. One of my first searches yielded a list entitled "Worst Country Song Titles." If I had used any of these titles for an award, I would have lost my credibility—that is, you would not have believed such a song existed. I must share some examples with you . . . .
Judge Sparks then produces this list of memorable ditties:
Rock n' Roll ain't got nothing on that, I suppose.
Thursday, September 04, 2003
The Night Journey:
Glory be to Him who made His servant go by night from the Sacred Temple to the Farther Temple whose surroundings We have blessed, that We might show him some of Our signs. He alone hears all and observes all.
In modern times, this passage of the Qur'an is freighted with political import. The Sacred Temple is in Mecca. According to orthodox Islamic teaching the Farther Temple was located in Jerusalem. Muhammad's night journey to that destination figures in Muslim claims regarding the Judeo-Christian holyland, territory presently within Israel.
Tim Cavanaugh at Reason's Hit & Run points to this very interesting article translated by The Middle East Media Research Institute. In it, a member of the Egyptian Ministry of Culture maintains that the Farther Temple was in Medina rather than Jerusalem. The author, Ahmad Muhammad 'Arafa offers both textual and historical arguments in support of this conclusion. Interestingly, 'Arafa equates the Night Journey with the Hijra, or Flight from Mecca to Medina.
The historical record certainly supports the claim that the Farther Temple was not in Jerusalem. Indeed, it highlights the fact that the Farther Temple, or Al-Aqsa Mosque, was from the very beginning a quasi-political enterprise. Erected approximately sixty years after the death of the Prophet (circa 691-92 A.D.),
The Dome of the Rock, along with its adjoining Aqsa Mosque, constituted the first great religious building complex in the history of Islam. It marked the beginning of a new era. The time for borrowing, for adaptation, for improvisation had passed. The Umayyad caliphate was no longer a successor state of Rome and Persia, but a new universal polity. Islam was no mere successor religion of Christianity, but a new universal dispensation. The place, style, and above all the ornamentation of the Dome of the Rock reveal its purpose. The style and scale were surely intended to rival and outshine the Church of the Holy Sepulchre, with the subtle changes needed for Muslim, not Christian, piety. The place was Jerusalem, the most sacred city on earth to both the predecessor religions, Judaism and Christianity.
Bernard Lewis, The Middle East: A Brief History of the Last 2,000 Years 68-71 (1995).
Milestone or Meaningless Gesture?The President signed the Prison Rape Elimination Act into law today. The organization Stop Prison Rape is duly optimistic. (Link via Glenn Reynolds.) I am considerably more pessimistic. But time will tell.UPDATE:
Boobs:Tainted Law drew my attention to this Orlando Sentinel story, first noted by Howard Bashman, which involves an attempt by a bunch of boobs to use the Due Process Clause and Equal Protestion Clause of the Fourteenth Amendment to force the state to allow women to go bare-breasted in public. The Sentinel reports that:
[Jan] Frandsen, 46, her daughter [who is 14] and eight friends, one in her 70s, are suing Brevard County to overturn its antinudity ordinance, as well as two state statutes that ban displaying the female breast in public.
Well, they may not be "strippers or nudists or thrill seekers," but they are odd to say the least. The Sentinel also reports that:
The county ordinance was passed, in part, in response to nude sunbathing at Playalinda Beach in the Canaveral National Seashore. That's where Frandsen's husband, Marvin Frandsen, was arrested during a 1995 nude protest of the ordinance.
People get worked up about the strangest things. Or, rather, strange people get worked up about the strangest things.
Nonetheless, Tainted Law concludes that "they are probably right." I think that he's all wet. And so do the federal courts of appeals. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003); Buzzetti v. City of New York, 140 F.3d 134, 141-44 (2d Cir. 1998); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995); United States v. Biocic, 928 F.2d 112, 114-16 (4th Cir. 1991).
Formalism as a Solution to the Judicial Logjam:Professor Solum has a detailed discussion that explores the possible implications of Miguel Estrada's decision to withdraw his name from consideration. He helpfully tailors his exploration around his prior writings on the judicial confirmation wars and includes links to those posts for those who missed them the first time around.
In discussing the apparent transition to active and open consideration of a nominee's political ideology, Solum makes this notable observation:
But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice—the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
The difficulty, of course, is that in practice the parties fervently believe that the excerpted quotation describes only their opponents and not themselves. Democrats argue that Bill Pryor's nomination, for example, is ideologically motivated and therefore must be blocked; Republicans argue that the Democratic refusal to confirm Pryor is ideologically motivated. In Solum's view, both sides are apparently right.
Having diagnosed the problem thusly, Solum proposes a solution: legal formalism. He argues that:
There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit—the rule of law.
I am not unsympathetic to Solum's case. But I must confess that I wonder about formalism's limits. What happens in those cases in which Solum's neoformalist principles fail to acheive a determinate outcome? It is hard to imagine that they alone might muster anything more than persuasive arguments about the meaning of the phrase "other rights" in Ninth Amendment, for example. Might the content of this provision be inherently political to one degree or another? What then?
Sanctions Are In Order:Tainted Law compiles yet more evidence that sanctions are in order in the case involving FOXNews and Al Franken.
It appears that we are not the only ones to think that FOXNews's conduct warranted sanctions. Tainted Law points to these posts by Roger Ailes, Sterling Silver, and Surreality Check, among others. Silver points out the fact that FOXNews's abandonment of the suit nixes any chance of sanctions under Rule 11. See Fed. R. Civ. P. 11(c). One wonders why Franken's lawyers did not beat FOX to the punch.
MEChA: In Its Own WordsI previously noted the apparent unwillingness of the left half of the blogosphere to take MEChA seriously. In particular, I noted the Left's seeming failure to examine MEChA's own words. In this post, I propose to let MEChA largely speak for itself via its own official public documents. What follows primarily consists of a series of quotations from the core documents of MEChA, which is interspersed with minimal commentary.
I have drawn my information from two particular MEChA chapters: MEChA de Brown and MEChA de Yale. I have relied on these sites because, unlike many other MEChA-related locations on the web, these two appear to be fairly up-to-date. I have viewed numerous such websites, however, and I have found the content on the two aforementioned sites to be representative of those MEChA chapters affiliated with the national organization.
Chicano and Chicana students of Aztlán must take upon themselves the responsibilities to promote Chicanismo within the community, politicizing our Raza with an emphasis on indigenous consciousness to continue the struggle for the self-determination of the Chicano people for the purpose of liberating Aztlán.
II. MEChA’s Documented Ideology
We know that the two “Plans” referenced are also primary documents because the National Constitution tells us as much. See Nat’l Const. art. III, § 24A (requiring all MEChA chapters to “[o]rient all members by discussing and reading historical documents of our Movimiento including: El Plan de Santa Barbara, El Plan Espiritual de Aztlan, and the MEChA Position Papers of Philosophy, Constitutions, Relationship to Outside Organizations, and Goals & Objectives” in order to be recognized by the governing regional MEChA entity).
El Plan de Santa Barbara dates from the founding of MEChA sometime around 1969. It is clear, however, that its tenets remain bedrock principles of the modern MEChA, as the National Constitution that provides for its study was first adopted in 1995 (and amended in 1996 and 1997). I have not found a date certain for the promulgation of El Plan Espiritual de Aztlan.
A. El Plan de Santa Barbara
It is clear enough that race and/or ethnicity is the basis of MEChA’s politics, but membership is not a genetic birthright. Being Hispanic or Latino would appear to be a necessary but not a sufficient condition of membership. Consider the following:
Commitment to the struggle for Chicano liberation is the operative definition of the ideology used here. Chicanismo involves a crucial distinction in political consciousness between a Mexican American (or Hispanic) and a Chicano mentality. The Mexican American or Hispanic is a person who lacks self-respect and pride in one's ethnic and cultural background. Thus, the Chicano acts with confidence and with a range of alternatives in the political world. He is capable of developing and effective ideology through action. Mexican Americans (or Hispanics) must be viewed as potential Chicanos. Chicanismo is flexible enough to relate to the varying levels of consciousness within La Raza. Regional variations must always be kept in mind as well as the different levels of development, composition, maturity, achievement, and experience in political action.
The now-familiar brand of racialism evidenced in the foregoing passage is also apparent in a passage discussing potentially sympathetic university administrators of Hispanic or Latino ancestry:
This a delicate area since administrators are most interested in not jeopardizing their positions and often will try to act as buffers or liaison between the administration and the student group. In the case of Chicano administrators, it should not [a] priori be assumed, he/she must be given the chance to prove his/her allegiance to La Causa. As such, he/she should be the Chicano's person in the power structure instead of the administration's Mexican-American.
A passage devoted to minority hiring echoes this notion of racial authenticity:
The jobs created by these projects must be filled by competent Chicanos, not only the Chicano who has the traditional credentials required for the position, but one who has the credentials of the Raza. To often in the past the dedicated pushed for a program only to have a vendido sharp-talker come in and take over and start working for his Anglo administrator.
The word vendido appears to be related to the Spanish verb vendedor, which may mean “to sell” or “to betray.” When used reflexively, the verb vendedor connotes “selling out to the enemy.” In other words, the foregoing passage effectively identifies Hispanics and Latinos who fail to adopt the proper politics as “race traitors.”
MEChA does allow for temporary “political coalitions and alliances with non-Chicano groups” when advantageous. However, there can be no association with the aforementioned vendidos. Given MEChA’s underlying “struggle for liberation in [a] society where justice is but a word”:
. . . [I]t becomes essential that each member pull his load and that no one be allowed to be dead weight. Carga floja is dangerous, and if not brought up to par, it must be cut loose.
But even its allowance for alliances of convenience notwithstanding, MEChA is essentially separatist in nature, decrying:
. . . this melting pot society, which seeks to dilute varied cultures into a gray upon gray pseudo-culture of technology and materialism.
The reference to “materialism” is not accidental either. El Plan de Santa Barbara is also explicitly communist in orientation and links capitalism with Anglos. It states:
The ethic of profit and competition, of greed and intolerance, which the Anglo society offers must be replaced by our ancestral communalism and love for beauty and justice.
B. El Plan Espiritual de Aztlan
In the spirit of a new people that is conscious not only of its proud historical heritage but also of the brutal "gringo" invasion of our territories, we, the Chicano, Mexican, Latino, Indigenous inhabitants and civilizers of the northern land of Aztlan from whence came our forefathers reclaiming the land of their birth and consecrating the determination of our people of the sun, declare that the call of our sangre [blood] is our power, our responsibility, and our inevitable destiny.
It explicitly states that Aztlan does not belong “to the foreign Europeans” and declares MEChA’s refusal to “recognize capricious frontiers on the Bronze continent.” And then, following these remarks, the Plan goes further still, uttering those infamous words:
. . . . [W]e declare the independence of our mestizo nation. We are a bronze people with a bronze culture. Before the world, before all of North America, before all our brothers in the bronze continent, we are a nation, we are a union of free pueblos, we are Aztlan. Por La Raza todo. Fuera de La Raza nada.
Given this context, it is rather difficult to accept the translations of “Por La Raza todo. Fuera de La Raza nada” proffered by Joanne Jacobs or Mark Kleiman (who, in turn, relies on Mickey Kaus). In Jacobs’s case, if “people” were intended the writers would have likely used gente rather than raza in just about any context. But in this context it is unmistakably clear that the “people” the writers had in mind were members of the Chicano "raza" (i.e., generally right-thinking Hispanics or Latinos in the MEChA worldview). The would-be Kaus-Kleiman translations (“By means of the Race, everything. Outside the Race, nothing.” or “On behalf of the Race, everything. Outside the Race, nothing.”) are equally misplaced when the words are viewed in context. Frankly, these weirdly non-textual variants of the obvious contextual translation (“For the Race: everything. Outside of the Race: nothing.”) leads one to wonder if any of the three aforementioned persons bothered to research or read the text before opining on its meaning.
The Plan follows this rhetoric up with an ambiguous call for political independence:
Once we are committed to the idea and philosophy of El Plan de Aztlan, we can only conclude that social, economic, cultural, and political independence is the only road to total liberation from oppression, exploitation, and racism. Our struggle then must be for the control of our barrios, campos, pueblos, lands, our economy, our culture, and our political life.
Although this language need not be read as irredentist in nature, even this concession is hardly reassuring given the racially identified and racially exclusive nature of the MEChA’s politics. Moreover, it is not clear that El Plan Espiritual is not overtly separatist. As previously noted, the document states that the land does not belong to the “foreign Europeans.” Similarly, in a portion devoted to the “economy,” which also echoes El Plan de Santa Barbara’s communism, the Plan states that:
[E]conomic control of our lives and our communities can only come about by driving the exploiter out of our communities, our pueblos, and our lands and by controlling and developing our own talents, sweat, and resources. Cultural background and values which ignore materialism and embrace humanism will contribute to the act of cooperative buying and the distribution of resources and production to sustain an economic base for healthy growth and development. Lands rightfully ours will be fought for and defended. Land and realty ownership will be acquired by the community for the people's welfare. Economic ties of responsibility must be secured by nationalism and the Chicano defense units.
The plan of action announced in the Plan Espiritual also expressly purports to be revolutionary in character. For example, if admonishes Chicanos to:
“. . . insure that our writers, poets, musicians, and artists produce literature and art that is appealing to our people and relates to our revolutionary culture. Our cultural values of life, family, and home will serve as a powerful weapon to defeat the gringo dollar value system and encourage the process of love and brotherhood.
It also includes this revolutionary gem:
For the very young there will no longer be acts of juvenile delinquency, but revolutionary acts.
C. Philosophy of MEChA
Interestingly, it purports that MEChA is an inclusive movement:
We recognize that no one is born politically Chicana or Chicano. Chicanismo results from a decision based on a political consciousness for our Raza, to dedicate oneself to building a Chicana/Chicano Nation. Chicanismo is a concept that integrates self-awareness with cultural identity, a necessary step in developing political consciousness. Therefore the term Chicano is grounded in a philosophy, not a nationality. Chicanismo does not exclude anyone, rather it includes those who acknowledge and work toward the betterment of La Raza. Chicanismo involves a personal decision to reject assimilation and work towards the preservation of our cultural heritage.
It is difficult, however, to reconcile this purported inclusiveness with the tenets announced in MEChA’s other documents. One wonders how MEChAistas would reconcile the apparent conflicts. One also wonders whether anyone outside of a distinct subset of the Hispanic or Latino population would be inclined to take advantage of the advertised inclusiveness. (As an aside, the group photos from various university chapters that I have viewed online are uniformly “Hispanic” or “Latino,” as those terms are commonly understood.)
Wednesday, September 03, 2003
Taking MEChA Seriously:One of the things that I have noticed about the debate centering over Cruz Bustamante's past association with MEChA and his present refusal to dissociate himself therefrom is the seeming inability of some to take MEChA seriously, to take MEChA's own representations about the content of its beliefs to heart.
Ted Barlow's bizarrely reasoned post is a prime example, for all of the reasons set forth by Juan Non-Volokh and Pejman Yousefzadeh. But even stranger is Barlow's apparent endorsement of this argument culled from the comments to one of Kevin Drum's posts:
Why won’t Bustamante make a statement against separatism or fascism or racism? First of all, it hasn’t been exactly established that this is a MEChA stance. I read the Juan Non-Volokh piece, and in his fisking of Barlow, he also made one mistake that I noticed immediately. He linked to the Berkeley MEChA website, which links to that Aztlan plan that everyone is quoting. However, and there probably is no way Non-Volokh could have known this, Berkeley MEChA is actually not the official MEChA of Berkeley—they split off from the regular MEChA. The regular MEChA branch, however, doesn’t have a website. The Berkeley MEChA is decidedly more radical. You can check out the Office of Student Life listing of student groups and see that there are two MEChA’s listed (this website is for last semester, neither MEChA has registered for the Fall yet). What this says to me is that each MEChA branch is likely to have its own statement of purpose, so someone needs to investigate the branch that Bustamante actually belonged to before they demand that he renounce anything.
The problem with this argument is that, whatever the case may be at Berkeley, some minimal Internet research establishes that El Plan Espiritual de Aztlan and other fairly radical documents can be found on the webpages of many MEChA chapters across the United States: for example: Brown, Georgetown, Stanford, University of Chicago, University of Texas at Austin, and the University of Wisconsin at Madison. All of these pages appear to be somewhat dated, however, four of them (Brown, Chicago, Georgetown, and Wisconsin) include the text of the MEChA national constitution and therefore constituted the "mainstream" chapter of their organization on campus at one point in time.
In short, El Plan Espiritual de Aztlan is not merely associated with radical splinter cells or groups that are on the fringe of the MEChA. It is prominently advertised by chapters of the national organization. Given this fact, aren't honest people required to read this (and other) document(s) and let them speak for themselves rather than denying their relevance?
On closer inspection, Brown's MEChA website actually appears to be fairly up-to-date.
I have followed up the observation above with a far more detailed examination of MEChA's beliefs here.
Tuesday, September 02, 2003
Rape As A Capital Crime:Ken Lammers brought this very interesting story to my attention. The Associated Press, by way of CourtTV reports that:
A man convicted of raping his 8-year-old stepdaughter received the death penalty Tuesday in what could be the state's first death sentence for a crime other than murder.
The 1977 Supreme Court case referenced is Coker v. Georgia, 433 U.S. 584 (1977), in which the Court ruled in a 7-2 decision that imposition of the death penalty for the crime of rape constitutes a violation of the Eighth Amendment.
Lammers offers no view of the merits of the Louisiana law. I consider it to be an overly modest step in the right direction. The Supreme Court should revisit Coker and overrule it.
One might reasonably conclude that we ought not to have a death penalty whatsoever. But I am hard-pressed to comprehend the position that (a) we ought to have a death penalty, but (b) rape is not a sufficiently terrible crime to merit its imposition. Statistically, rape outside of the prison environment is doubtless predominately a male-on-female crime. And the decision in Coker reflects little more than insufficient sensitivity to the plight of this terrible crime's female victims.
Consider the Coker Court's recitation of the facts, for example:
While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a 'board,' he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying 'you know what's going to happen to you if you try anything, don't you,' Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.
Coker, 433 U.S. at 587 (emphasis added).
Having summarily concluded that Mrs. Carver was little or no worse for the wear, the Court then proceeded to hold that:
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.
Id. at 592.
Regarding the severity of the offense, the Court does offer this bland acknowledgment:
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.
Id. at 537-38.
But then the Court discards these observations and concludes in the very next paragraph that:
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S. at 187, 96 S.Ct. at 2931, is an excessive penalty for the rapist who, as such, does not take human life.
Id. at 598 (emphasis added).
What the Court gives with one hand, it takes away with the other. And it did not give much to begin with. The Court's clinical ode to the "personal integrity and autonomy" of victims and their "privilege of choosing with whom intimate relationships are to be established" is, in a word, ridiculous. As if one's right to be free from forcible sexual contact is a mere privilege. See Black's Law Dictionary 1215 (7th ed. 1999) (defining "privilege" as "[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty").
The opinion's actual text is contemptible. But its apparent implications are even worse. A critical, but not entirely unfair, paraphrase might consist of: "C'mon honey, absent a real beating, you're not even hurt. So quit pouting, wipe that semen off your leg, and get on with your slightly less happy existence." The only way the Court's opinion could be more demeaning is if it contained a lengthy description of Elnita Carver's "alluring attire."
Then Chief Justice Burger (joined by then Associate Justice Rehnquist) was quick to point out these shortcomings in dissent. Burger begins by setting out a more satisfactory recitation of the facts:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.
Id. at 605 (Burger, C.J., dissenting).
Accordingly, the dissenters would have addressed a far narrower question than the Court chose to reach, namely:
Does the Eighth Amendment's ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime and who has not hesitated to escape confinement at the first available opportunity?
Id. at 607 (Burger, C.J., dissenting); cf. id. at 601 ("The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always regardless of the circumstances is a disproportionate penalty for the crime of rape.") (Powell, J., concurring in the judgment in part and dissenting in part).
The dissenters also made plain that their factual recitation was not rendered so as to prejudice the reader or as a clarion call to retribution:
Surely recidivism, especially the repeated commission of heinous crimes, is a factor which may properly be weighed as an aggravating circumstance, permitting the imposition of a punishment more severe than for one isolated offense. For example, as a matter of national policy, Congress has expressed its will that a person who has committed two felonies will suffer enhanced punishment for a third one . . . . As a factual matter, the plurality opinion is correct in stating that Coker's 'prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life'; however, it cannot be disputed that the existence of these prior convictions makes Coker a substantially more serious menace to society than a first-time offender:'There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational) but rather those who have repeatedly engaged in violent, combative behavior. A well-demonstrated propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.' Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1080 (1964).
Id. at 608-10 (Burger, C.J., dissenting) (some internal citation omitted).
However, faced with the Court's very broad holding, the dissent proceeds to address its chief premise head-on, albeit in a kinder fashion than the Court's holding deserves:
The plurality acknowledges the gross nature of the crime of rape. A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The longrange effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this in turn may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with Mr. Justice WHITE's conclusion as far as it goes that '(s)hort of homicide, (rape) is the 'ultimate violation of self." Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are 'unharmed,' or to classify the human outrage of rape, as does Mr. Justice POWELL, in terms of 'excessively brutal,' versus 'moderately brutal,' takes too little account of the profound suffering the crime imposes upon the victims and their loved ones. Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that 'the death penalty . . . is an excessive penalty' for the perpetrator of this heinous offense. This, the Court holds, is true even though in Georgia the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances.
Id. at 612-13 (Burger, C.J., dissenting) (internal citations omitted).
The Chief Justice also accurately notes that the Court's distinction between rape and murder rests upon a sort of twisted neo-Hammurabian logic that conceptualizes capital punishment solely in terms of societal vengeance:
The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the 'objective' analysis discussed supra. The plurality's conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational nor constitutionally impermissible for a legislature to make the penalty more severe than the criminal act it punishes in the hope it would deter wrongdoing: 'We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.' It begs the question to state, as does the plurality opinion: 'Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.' Until now, the issue under the Eighth Amendment has not been the state of any particular victim after the crime, but rather whether the punishment imposed is grossly disproportionate to the evil committed by the perpetrator. As a matter of constitutional principle, that test cannot have the primitive simplicity of 'life for life, eye for eye, tooth for tooth.'
Id. at 619-20 (Burger, C.J., dissenting) (internal citations omitted).
Although I would take a very broad approach and consider rape a capital crime even, perhaps, in the absence of aggravating circumstances, the Louisiana case that began this discourse would hardly require so broad a rule. In light of the fractured line-up in Coker, reconsideration may be promising. The Court's full opinion was supported by a mere plurality. Two additional Justices (Brennan and Marshall) adhered to the now moribund position that the death penalty is unconstitutional under any circumstances. A third Justice (Powell) concurred in the result, but thought that rapes accompanied by more egregious circumstances might qualify for the death penalty. And two Justices (Burger and Rehnquist) dissented. As with so many things, the passage of nearly thirty years might reveal that Rehnquist's views have prevailed.
Will Baude has pointed out that he and Amanda Butler have tackled the Louisiana case before. Baude supports the Louisiana law, but goes on to disagree with my admittedly aggressive claim that Louisiana's law is "an overly modest step in the right direction" for some very good reasons:
The first is the nature of proof. Murder trials nearly always require one to produce an actual body, so that the only question at issue is "who did it?" and certain amounts of evidence are gathered of a largely physical nature, and so on. Eyewitness testimony can be very unreliable but can often get across the basic details. The trouble with many rape cases is that the determining facts are mistier. Since it's always illegal to kill people (barring a few exception circumstances) it's usually enough to establish that A killed B and there weren't any major countervailing circumstances. But since many, even most, sex is extremely legal it's not enough to establish that A had sex with B, one also has to establish that B did not consent, that A reasonably should have known B did not consent, and so on. Since people who have sex so rarely ask for clear consent, the issue can get messy. Dahlia Lithwick pointed out in Slate how steep penalties in rape can be troubling given the small quantities of proof that make a difference, in those cases, between life and death.
These are not silly objections and might rightly temper one's enthusiasm for the broader approach that I advocated. However, one wonders . . . . Let us say that we have a case of "date-rape"—a term that trivializes the crime of rape by implying that those who manage to arrange a social outing and then force sexual contact upon their companion are somehow less culpable than a stranger might be—that is not, in Powell's callous terminology, "excessively brutal." And let's further suppose that a hidden camera captured the crime and leaves no doubt that the sex involved was non-consensual.
Does Baude envision such a case as being eligible for the death penalty? And, if not, isn't he really saying that rape per se is not egregious enough to merit the death penalty absent other circumstances? In other words, isn't Baude, more or less, arguing Justice Powell's position? That is, although he writes of rape's heinous toll with more sympathy than the Coker Court or Powell did, I think that Baude effectively reaches Powell's conclusion: rape alone is insufficient. This position strikes me as being incompatible with the position that rape can be "a fate worse than death," to borrow Baude's wording, unless one believes that rape is only "a fate worse than death" when it is accompanied by aggaravating circumstances.
I simply do not believe that a person need be beaten mercilessly in addition to being raped in order for it to result in irreparable harm. And, although rape may be especially devastating for children whose personalities are in formation and are therefore particularly fragile, the psychological harms associated with rape are probably not that much reduced for adults.
The Almighty Oath:In commenting on the trials and tribulations of Justice Moore, attorney J. Craig Williams writes:
This morning's CNN Headline News featured an email comment from someone commenting on Judge Moore's stand that asked the question whether the act of swearing on the bible before you give testimony will be yanked out of court, too. (By the way, it's already gone—and you don't swear "so help me God" anymore.) Courts have consistently required the separation of religous symbols from government-related activities. There are legions of cases where nativity scenes have been removed from city parks, as required by Courts interpreting the First Amendment.
Although it does not surprise me that California state courts and federal courts within the Ninth Circuit might have abandoned the acknowledgment of God in the taking of in-court oaths, see Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003), this practice is far from universal. In my particular division of the Southern District of Texas, God continues to be invoked in the administration of oaths. Witnesses, sworn en masse prior to trial, are administered the following oath:
You, and each of you, do solemnly swear that the testimony you will give in the case now before the court shall be the truth, the whole truth, and nothing but the truth, so help you God?
Similarly, the oaths required of grand jurors, court reporters, veniremen, jurors, and translators/interpreters in the Southern District of Texas also contain the clause "so help you God."
Interestingly, the oath for newly admitted attorneys laid out in Local Rule 83.1 of the Southern District omits any mention of God in its text. However, the version of the oath for newly admitted attorneys provided to me by one of the deputy clerks of court contains the phrase "So help me God." Cf. Fed. R. App. P. 46 (omitting mention of God); U.S. Sup. Ct. R. 5 (same).
Federal law clerks are also sworn in upon assuming their duties. The oath to be administed is laid out in an official form of the United States government, AO 78A (1/00), which states:
I [insert name], do solemnly swear (or affirm) that—I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
The law clerk's oath bears a striking resemblance to the oath sworn by members of the armed forces, see 10 U.S.C. § 502, which also explictly references God. The clerk's oath may be amended by the clerk so as to strike out the reference to God and the word "swear," if the party wishes to affirm the oath rather than swear to it. But such an election must expressly be made and the "So help me God" language must literally be stricken out. This oath is apparently mandated by 5 U.S.C. § 3331. Cf. 28 U.S.C. § 951 (oath for federal clerks of court, which also contains "[s]o help me God").
Justices of the United States and the judges of the lower federal courts swear an otherwise dissimilar oath upon confirmation to the bench, but their oath likewise invokes God:
I, [insert name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [insert position] under the Constitution and laws of the United States. So help me God.
28 U.S.C. § 453.
In contrast, the presidential oath, which is fixed in the Constitution, see U.S. Const. art. II, § 1, cl. 7, omits any reference to the Almighty.
Although I am less familiar with Texas state courts, I suspect that they explicitly reference God in court-related oaths as well. After all, the oath sworn by all lawyers admitted to the State Bar of Texas reads:
I [insert name] do solemnly swear that I will support the constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my client to the best of my ability. So help me God."
However, I cannot be certain about this without conducting further research. Although the above language is the exact text that was mailed to me by the Clerk of the Supreme Court of Texas upon passage of the State Bar Exam, the statute that governs the lawyer's oath by no means requires any religious content. See Tex. Gov't Code § 82.037 (omitting any mention of God). The mention of God, however, does not seem to be out of keeping with Texas custom. For example, the state constitution requires all elected and appointed officials to take an oath that includes the phrase "[s]o help me God." Tex. Const. art. 16, § 1(a).
Of course, none of this bears upon the constitutional propriety (or lack thereof) of statutes and customs that include references to God—except, perhaps, to the extent that longstanding practice might reflect constitutionality. But whatever the case, it is wrong as a descriptive matter to contend that God has been banished altogether from the judiciary or judicial proceedings.
The Almighty Update:
J. Craig Williams over at May It Please The Court has posted an update, noting that even in California the "so help me God" oath may appear in court:
It turns out that California Code of Civil Procedure section 2094 has two optional oaths, subsections (1) and (2). The first contains the "So help you God" language, the second does not.
In addition, Timothy Sandefur has written that the federal oaths enumerated above that include language like "so help me God" are illegal, citing the third clause of U.S. Const. art. VI. This provision reads:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
It is not clear to me that all such federal oaths that reference God would run afoul of this provision. For example, the law clerk's oath allows one to opt out of such language. If one can do likewise for the other federal oaths, then they might not run afoul of Article VI either.
However, even without such limitations, it is not altogether clear that the prohibition of religious tests, whatever might be encompassed therein, covers references to divine beings in oaths, which may be little more than a blandishment. Some certainly take a more limited view of the governmental conduct proscribed by Article VI. See, e.g., Stephen B. Pressler, Some Realism About Atheism: Responses to the Godless Constitution, 1 Tex. Rev. L. & Politics 87, 98-99 (1997) (reviewing Isaac Kramnick & R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (1996)). Even by Sandefur's recitation, the Supreme Court has yet to address this issue. See Torcaso v. Watkins, 367 U.S. 488, 489 n.1 (1961).
Having evinced these preliminary skeptical leanings, I concede that I have concentrated little thought on the matter (let alone research) and could be entirely wrong. My initial post was really focused on actual practice more than the constitutional propriety of these practices. But based on the admittedly little that I know, I am not inclined to place this issue beyond the bounds of reasonable debate just yet.
Of course, none of this gainsays cases like Torcaso that invalidate enforcement of certain oaths on Establishment Clause grounds. However, the oath at issue in Torcaso was not even arguably a blandishment; it expressly required one to affirm one's belief in God and there was no exemption. Id. at 489. The Court's holding reflects this fact:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.
Id. at 495.
Accordingly, I am not so sure that Torcaso is dispositive regarding the foregoing federal oaths. But, again, I am hardly an expert in this area and would welcome further information.