Tune in Tonight for a “Smart” Discussion of Executive Privilege

Update: Stupidly, I failed to note when it would occur: 9 p.m. Eastern, 6 p.m. pacific.  My bad.

As you may have heard, the President asserted executive privilege over some of the documents being sought in the fast and furious scandal.  Well, liberal friend and blog talk radio host John Smart has asked me to appear on this show and you can listen here at this link.

And if you want to do homework to get ready, there is one major case to read before tonight: U.S. v. Nixon.  Yes, that Nixon.  I suggest you just read the facts, and skip over the parts on jurisdiction and justiciability and jump right into the stuff on executive privilege.

By the way, a free legal vocabulary lesson.  When they say “in camera” it is law latin for “in chambers”—meaning the judge looking at whatever it is him or herself, with no one else present.  That will be relevant in reading the case.

I will now flog myself for making that inexcusably bad pun, again, in the title of the post.  My apologies.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

PETA Should be Sanctioned For Its Suit Claiming that Orcas are Covered by the Thirteenth Amendment

Strap yourselves in because this is a long one, as I get into some philosophical and moral issues, before I get to the bottom line.

So via Hot Air we find out that a Federal Judge has ruled remarkably that an entire class is excluded from the Thirteenth Amendment.  Who is this group that has been shockingly excluded from protection from being enslaved and/or subjected to involuntary servitude?

Orcas.

You know, these things:

(Those whistles and clicks translate to “Swing low, sweet chariot, coming forth to carry me home.”)

Yes, that is right, PETA filed suit claiming that Orcas were protected by the Thirteenth Amendment and therefore Sea World had unlawfully enslaved them and otherwise treated them horribly.  You can read the complaint here.  I have been trying to locate the motion to dismiss and any opposition to that motion that PETA filed, because that would contain more meaty discussion of the central legal issue—whether the Thirteenth Amendment applies to non-humans at all.  But so far I have had no luck finding that, so consider this a bleg.

Look, I am not unsympathetic to the idea that at some point a being becomes sentient enough that the law should provide some protections to them.

[The next paragraph contains a minor *SPOILER* about my novel Archangel: A Novel of Alternate, Recent History (which you can purchase here).  Bluntly, it reveals something most people would figure out by the end of the second chapter.  But if you would prefer to be surprised, skip the next paragraph.]

For instance, the main character in my novel is an alien, and at one point an FBI agent points out to him that our criminal laws did not protect him from harm, saying “the laws on murder cover only humans. You shoot a dog or a chimp, it isn’t murder. At worst, it is cruelty to animals. Now maybe you would be lucky and the courts would interpret the laws to include a non-human like you, but wouldn’t you rather get a guarantee on that subject?”

[Spoilers end.]

Why Kennedy Probably Won’t Invalidate Proposition 8—A Response to James Taranto

James Taranto today said that he felt that Kennedy was principled enough that he would invalidate Proposition 8.  I have to disagree.

First, Kennedy is not nearly as principled as Taranto imagines.  Yes, he seems reasonably principled in defense of freedom of speech, but in terms of his interpretive methods, not so much.  He joined Scalia’s opinion in Heller v. District of Columbia, which was an intensely originalist decision, determining how the Second Amendment would have been understood at the time it was ratified.  And this was no mere joinder for convenience; in oral argument, he talked about how the founders would have considered life without guns unthinkable.  He put on at least an act of caring what the founders believed.

Then along came Kennedy v. Louisiana.  In that case they were called on to determine whether the term “cruel and unusual punishment” included executing a person for forcibly raping a child.  And with apologies for being this explicit, but the Defendant in that case, also coincidentally named Kennedy, had raped his eight year old daughter so violently that it ruptured the wall between her vagina and her anus and she will never have children.  Read the case and, to Justice Kennedy’s credit, he does nothing to excuse or diminish the cruelty of the act.  So if Justice Kennedy was a principled follower of original intent this would be a no brainer.  At the time of the founding, we executed horse-thieves.  Killing a defendant like this scumbag is nothing compared to that.

But in fact (Justice) Kennedy declared it would be cruel and unusual to kill (Defendant) Kennedy for his crimes.  That decision came only a day before the decision in Heller, leading some of my more sarcastic friends to argue that Heller made Kennedy v. Louisiana moot.

More on the Unconstitutionality of McCain-Fiengold

Why exactly should the law allow this, but not Hillary: The Movie?

The Judge in the Proposition 8 Trial is Gay, and Yes, That is a Problem

Right now in California they are carrying out a trial to determine whether Proposition 8, which changed the Constitution of California to ban gay marriage, after the California Supreme Court changed the state constitution to allow for gay marriage, is constitutional under the Federal Constitution.  You know, because those evangelical Christians who freed the slaves singing, “Glory, glory, Hallelujah” were live and let live types when it came to homosexuality.  (rolls eyes)

And now we find out that Judge Walker who is ruling over that case is gay.  Is that a problem?  Well Ed Whelan of Bench Memos says that being gay is not itself a problem, saying:

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay.  It’s whether he is capable of ruling impartially.  I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Consider his series of controversial—and, in many instances, unprecedented—decisions:

He goes on to list many reasons to doubt Judge Walker’s impartiality.  And they are all good reasons—I fully concur with him in that respect.  For instance, the per curium decision by the Supreme Court about cameras in the courtroom made it particularly obvious that Judge Walker had decided to air the case on YouTube and then tried after the fact to justify it.  And that alone should be reason enough for this judge to step aside.

But you know what?  Bluntly, the mere fact he is gay is a problem, too.

Freedom of Speech in Mexico

There is an interesting, little known fact about Mexican law.  The AFP explains that:

Under Mexican law, permission is required for the use of patriotic symbols such as the flag or national anthem. Violators face fines of up to 5,000 dollars.

And of course this rule has been applied neutrally, right?  Well, maybe not:

MTV cancelled the Mexican broadcast of an episode of the "South Park" cartoon featuring President Felipe Calderon because it lacked permission to show the Mexican flag, a spokesman said Wednesday.

I am sure the fact that they couldn’t get permission to show the flag had nothing to do with the fact that they were mocking the President.

Ah, but hey liberals.  None of this is a problem.  You see MTV is owned by Viacom, which is a corporation, so this is the suppression of corporate speech, so everything is okay, right?  Right?

Or are we going to recognize that declaring that no corporation has free speech rights is kind of, you know, dangerous?

Matthew Yglesias Objects to D-Day

What is war from a legal perspective?  What is D-Day, to name one example?  It is thousands upon thousands of agents of the American government going out and administering the death penalty to others without any due process whatsoever.  The extreme arbitrariness of their action is epitomized in the conduct of an enemy army: the Confederacy.  In the growing night at the battle of Chancellorsville, Stonewall Jackson was shot by his own soldiers as he returned to their lines.  General Jackson would have required no more “due process” than having a light shone on his face, but his soldiers didn’t even do that.  They simply shot him.  And the Confederate soldiers were not unique in this conduct.  Friendly fire deaths are a sad reality of modern warfare; its not a violation of the constitution.

This is what war is: the arbitrary application of force.

The Secret Feminist Purpose of Section Two of the Fourteenth Amendment (Updated and Bumped!)

Speaking of apportionment and all that good stuff, there is also good reason to believe that Section Two of the 14th Amendment was designed to advance a feminist purpose.

No, your eyes aren’t fooling you.  I said a feminist purpose.

“But” I hear you say, “I was always told that Section 2 was the first time the word ‘male’ appeared in the constitution.  This was decried by feminists.  How could it possibly have a feminist purpose?”

Well, it’s given away when you look at how it might have functioned.  In truth, Section 2 never went into effect.  They literally never applied it, in large part because the Fifteenth Amendment mooted it two years later.  But if you think about how it operates, you start to see something very curious: it creates an incentive for racist white men to allow white women to vote.

Excluding Illegal Immigrants from the Census

I have been seeing for the last few months a number of efforts to make sure that illegal immigrants are not counted in the next census.  The latest example comes from this post at NRO’s The Corner:

Crist Calls Rubio 'Absurd'   [Kathryn Jean Lopez]

for not wanting to count illegal immigrants in the Census.

Well, I don’t know much about the Crist/Rubio scuffle, but Crist has the correct answer from a constitutional perspective.

Early Draft of the Constitution Found in Philadelphia

This is kind of cool.  Someone found an early draft of the Constitution in Philadelphia.  Really, read it, it’s kind of cool, at least if you are a big history geek like me.

Meanwhile, William Jacobson over at Legal Insurrection has entirely too much fun with the idea.

It does beg the question, though.  If the constitution doesn’t matter, as many liberals claim, then why do we work so hard to preserve an original copy of it in our archives?  Why not just throw it out, if that text is merely an inconvenient anachronism written by dead white men?

Oh, wait, no, no, forget I said that.  I don’t want to give anyone ideas.

Calling Bullshit on Chemerinsky (or “Fisking a Law School Dean”)

Erwin Chemerinsky is a constitutional law professor and the Dean of the University of California Irvine School of Law. And you know, I have been exposed to his teachings twice. First, I purchased a bunch of tapes on the first year curriculum to give me a running start and then if memory serves he was in the Barbri course to help me prepare for the bar exam. Up until now, I considered him liberal, but basically fair.

But his op-ed on Citizens United is crap.

Of course you can read my argument on the subject, here. Or just scroll down, you lazy bastard!

So let’s start reading together, shall we?

The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns...

Okay stop right there. This is dishonest. The FEC told Citizens United that it could not purchase advertising. So to frame this as being about spending, without noticing that the spending purchases speech is dishonest.

I mean imagine if we passed a law stating that the New York Times was forbidden from buying paper or ink. Would that be a restriction on commerce? Or would that be a restriction on the freedom of the press?

This isn’t a restriction merely on expenditures. This is a restriction on expression. Remember that.