Two weeks ago I went to the Museum of Fine Arts in Boston to see one of the four surviving copies of the Magna Carta which is the basis for many of the rights we take for granted.

A few days ago I was tweeting out some of the rights guaranteed as listed:


While these rights and the others listed such as the independence of the Church were not always respected (see Henry VIII) during an era where might made right, where the life of a peasant or a serf had little value this was an incredible thing for such right to be recorded and confirmed b the king.

It’s very hard for a person living under a government whose founding evolves from these rights and the common law that came from it to understand just how radical such concept it, but this was the direct descendant of the principles of Christianity as Paul said:

There is neither Jew nor Greek, there is neither slave nor free person, there is not male and female; for you are all one in Christ Jesus.

Galatians 3:28

If the Magna Carta was an incredible statement for the culture of the year 13th century the equality of all before God no matter what your status, race or sex in the 1st century was an attitude that contradicted everything that the prevailing Roman, Jewish culture and beyond taught and knew.

Again like any institution run by humans this principle has not always been followed but that this philosophy of basic equality before God that is the building block for the concept of the basic dignity of humanity is earth shattering and changed the world.

But you can go back even further. Our secular friends often scoff at the Mosaic Law but consider some of the things listed in Exodus:

A sanction against excessive force

“(If a thief is caught in the act of housebreaking and beaten to death, there is no bloodguilt involved. But if after sunrise he is thus beaten, there is bloodguilt.)

Exodus 22:1-2b

A sanction against not just false reporting but in going defining truth by consensus.

“You shall not repeat a false report. Do not join the wicked in putting your hand, as an unjust witness, upon anyone. Neither shall you allege the example of the many as an excuse for doing wrong, nor shall you, when testifying in a lawsuit, side with the many in perverting justice.

Exodus 23:1-2

The concept of equality before the law neither favoring the poor because they are poor.

You shall not favor a poor man in his lawsuit.

Exodus 23:1-2

Nor denying the poor justice because they are poor & weak either

“You shall not deny one of your needy fellow men his rights in his lawsuit.

Exodus 23:6

But judging based on the truth

And in an era when an enemy was something to be killed an pillaged this idea….

“When you come upon your enemy’s ox or ass going astray, see to it that it is returned to him. When you notice the ass of one who hates you lying prostrate under its burden, by no means desert him; help him, rather, to raise it up.

Exodus 23:4-5

was certainly a law direct from God because even today we are inclined to celebrate our enemies misfortune.

In a Bronze age society whose rules were decided by the point of the sword and the spear all of these rights and obligations were a departure frankly from human nature.  The concept that there was a right and a wrong that came from beyond the ability to force it is an astounding development.

Today it’s become fashionable to look at those who came before us as ignorant unenlightened savages who do not rise to our level of wisdom or sophistication.  But where would we be today if  the basic principles from the 10 commandments and Mosaic law, the Christian concept of equality before God and the idea of rights that even the rulers of the land were obliged to obey?

We owe it to these cultural ancestors both respect for all they did in passing down these basic principles to us, but to make sure that the rights we have are upheld for the sake of those who follow.

In Colorado apparently the after school tutoring program for kids is for children of color only:

A school principal said no white children were allowed at an after-school tutoring program, and now some parents call it discrimination.

The principal at Mission Viejo Elementary in Aurora sent a letter telling parents the program is only for students of color.

Not to worry the school says they will make accommodation for the rare white student who like students of color fail to reach the levels of accomplishment that students of the school are expected to reach.

“This is Andre Pearson. It’s focused for and designed for children of color, but certainly, if we have space for other kids who have needs, we can definitely meet those needs,”

Now some might suggest such an arrangement suggests an inherent inferiority in non-white students, particularly if they need help devoid of the presence of a different race, but the school disagrees:

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically.

and further

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Oh sorry, my mistake, that’s not the schools argument that’s from the majority opinion of the Supreme Court Case Plessy v. Ferguson of 1896.

Funny I seem to recall a court case in 1954 overturning that decision saying in part:

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

One would think that a school principal would be familiar with this but perhaps Mr. Pearson can be tutored on the subject. The only question: Will he demand a segregated tutoring session.

To Boost the British Economy I’d tax all foreigners living abroad

Monty Python’s Flying Circus The Spanish Inquisition 1970

Pirates are hanged

Lord Hornblower 1946

I have come to kill Indians and believe it is right and honorable to use any means under God’s heaven to kill Indians

Col. John M. Chivington

Via Glenn I see a very interesting and potentially dangerous precedent being made by US courts:

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks.

This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S.
Sounds good right, terrorists nailed before they could do suicide bombings read on…

The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group.

Even better, I’ve gone on for years about the threat of Islamic Terror and its large body count. Stopping these murderous bastards is always a positive and saves lives, but here is where it gets complicated…

To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

Three thoughts go into my mind:

In terms of utility this would be a good thing. Terror and suicide bombing are an international problem as is terror by Islamists. Going after them would doubtless save many lives, not necessarily American lives but lives just the same and make it more complicated for terror groups to act.

In terms of  principle furthermore you could apply the old rules of Piracy, Pirates when captured on the high seas could be hanged on the spot and piracy is still recognized as an “offense against the law of nations” surely Terrorism and suicide bombing can be as well

It’s in terms of practice is where we run into problems. First of all, there is the US Constitution (emphasis mine)

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

It would seem to me odd that suicide bombing and terrorism is not defined as “offenses against the law of nations” but if that is in fact the case, this simply can’t be done because the constitution explicitly limited the power of congress to do this (and that matters because they are being prosecuted under US law).

If we move to get terror and these groups listed as “offenders against the law of nations” internationally then we are in play, or better yet if we can get terrorism defined as a form of Piracy, already recognized as the same that would work, but until then it’s pretty dodgy allowing the government to redefine “offenses against the law of nations”.  I don’t trust congress or the president to unilaterally redefine this kind of thing and neither should any of you.

And if congress can’t be trust consider who defines these things internationally these days:

the problem of course is how such a law is enforced and how “terrorist” is defined. I suspect if the UN gets its hands on it suddenly Israel will be on the list of “terror” nations giving a false sense of legitimacy to the murder of Jews everywhere.

Remember this is the same international community ready to consider Israel a bunch of criminals for firing back when rockets are launched against civilians while willing to turn a blind eye to those who shoot them.

Or worse yet, what if this same international community defines offending religion (read Islam) is an “offense against the law of nations”. Suddenly US citizens abroad could be picked up for any of these offenses and tried under international law using the same type of Universal jurisdiction being applied here.  Or perhaps private ownership of firearms can also be so defined.  There are already international moves in that direction and if you don’t think that can happen here, look at the reaction in the US since Sandy Hook?

As a practical matter stopping these guys is a good thing, but we had better be careful,  VERY careful when it comes to embracing  this kind of thing.


Cross-posted at Haemet.

10 AM EDT: deadline set by the Congress for production of Fast and Furious documents from Eric Holder.  Failure to produce said documents could result in Holder being cited for contempt.

10:15 AM EDT: Barack Obama exerted “executive privilege” over those documents.

Okay, Constitutional Law Professor, let’s get down and do some real constitutional law.  The separation of powers does enable a President to exert executive privilege over documents when they are going to a branch of government that has no use for them.  (As but one example, George Washington invoked executive privilege over documents relating to a treaty, when subpoenaed by the House, because the Senate, not the House, is the sole legislative body responsible for the ratification of treaties.)

Nevertheless, “I’m the President so what I say, goes” is not a permissible means to block Congressional investigation.  In U.S. v. Nixon, the Supreme Court denied then-President Nixon’s invocation of executive privilege.  It held that absent particularised circumstances (involving national security, military, or diplomatic secrets), executive privilege does not bar the production of documents at a criminal trial.   While such material may not be made public (and should be subject to in camera inspections, where possible), a President cannot simply refuse to hand it over, citing generalised concerns.

So Obama, please let us know exactly how Fast and Furious will implicate national security (except to cause violence at the border).  Please.  Because it seems as if it’s not a diplomatic issue with another nation, not a military issue, and not tending to harm national security in a particularised manner.

Okay, okay, that was not exactly the holding of Dorothy Ann Finch v. Commonwealth Health Insurance, but that may happen.  The Massachusetts Supreme Judicial Court ruled, in a 3-2 decision, that a lower court must use strict scrutiny in determining whether or not the state can reduce state-sponsored health care benefits to immigrants.  The lower courts had applied a rational basis standard to the exclusion, meaning that the state only had to demonstrate that it had some interest in excluding immigrants from subsidised programmes.  The Supreme Judicial Court, however, ruled that the lower courts must apply a “strict scrutiny” standard, meaning that the legislation must be narrowly tailored to meet a compelling state interest.

This ruling – this particular ruling – only covers legal immigrants, but the jump to covering illegal immigrants is very small.  (I will also note that the MA courts have also ruled that the state constitution requires abortions to be provided for anyone who cannot afford one, as abortion is a constitutional right.  No word yet on free guns for poor people.) Also note that courts, unlike the legislatures, are not charged with making a budget, or making a budget work; their opinions are not only divorced from, but contrary to, the realities of using limited funds for unlimited needs and wants.

Nothing against immigrants, but the reality is that they can return to their own countries for free or subsidised health care; US citizens cannot go to Canada, for example, and demand free health care.  It is an issue of sovereignty, and of protecting one’s own citizens and allocating resources accordingly, but it remains to be seen whether or not Massachusetts thinks that sovereignty and balancing the budget are fundamental governmental interests.

Earlier today, Glenn Reynolds gave the “Keynote from the Right” speech; Larry Lessig will be providing the same, from the Left.  The gentleman making the introductions is speaking about how consultants provide a buffer between big-money corporate interests and the general public, such that it can appear to be more grassroots or otherwise not affiliated with the corporation in question.

Josh Silver is advocating for better funding of elections, decrease of special interests, etc.

Larry Lessig: “I’m not in this fight for a constitutional convention for academic reasons.”  It is “essential to solving a critical problem of democracy that we face.”  He promises to fail in being the Left keynote speaker tonight, and that the Right will agree with him.

“There are a thousand hacking at the branches of evil, to the one who is striking at the root.”  ~Henry David Thoreau, 1846.  Hence the genesis of “Rootstrikers.”  “Government is an embarrassment; it has lost the capacity to make even simple decisions.” The view that government doesn’t work is a view shared across the political spectrum.  The only institution with a support of the majority of Americans is the only non-democratically elected one: the Supreme Court.

Heavy use of slides. We now have a sponge on a brain – brainwashing.

Continue reading “Live-Blogging ConConCon: Larry Lessig, from the Left”

…and they were right!

An attorney in her mid-thirties has resorted to topless dancing to make ends meet while she goes back to grad school and gets a degree.  The legal job market is a mess and will not recover for a long time; the profession is also rather overcrowded, so many JDs never even practise law.   Furthermore, attractive young women have always been well-compensated for taking their clothes off for men, should they so choose that route.

But… okay, you’re a thirty-something lawyer with nine years of experience in the field.  Surely, there are jobs out there that would pay you at least the $20/hour you get for taking your clothes off for strangers, right?  Rather than having a family who is “proud” of you for doing whatever needs to be done to make ends meet, shouldn’t that family open up a home?  (Not that I’m a fan of thirty-somethings boomeranging back home, but if it’s that or letting strangers gaze at your naked breasts for money, surely, the spare bedroom in the parents’ house is a sensible solution.)

Thoughts, dear readers?

Such a post wouldn’t be complete without a conservative feminist rant, so here it is: the government thought that it was being “compassionate” and giving everyone an “opportunity” by funding generous, virtually unlimited student loans.  Unfortunately, it didn’t repeal the law of economics at the same time, so the influx of easy cash created a bubble in the higher education market.   Economists have estimated that universities raise tuition concurrent with raises in available federal financial aid. Moreover, schools have an incentive to accept as many students as possible, training them in whatever fields they desire, even if there isn’t a market for those skills.  Thus, young people have an easy time getting loans, but the loans are for such huge amounts of money, often in very crowded or low-paying fields, that they become difficult or impossible to pay off.  So we’ve gotten to the situation in which young women’s best prospects for financial solvency involve selling their bodies – the exact situation which easy student loans and access to higher education was supposed to prevent, but one that sets women’s advancement back to the nineteenth century nonetheless.

Cross-posted at Haemet.

Way back in the early days of the Blog I talked about Gay Marriage and Richard Cohen’s self=righteous hit piece:

Personally on a religious level I can’t support gay marriage but this is not a valid argument for a non-religious person. On a non-religious level it seems to me you can not rationally say that gay marriage is ok and should be legal without also allowing either polygamy and incest between consenting adults. Both have a longer and more accepted cultural history worldwide.

And PLEASE don’t give me the “ick” factor argument about these other things being accepted. Ick is just an argument about culture. It is the same argument that one would have heard concerning gay marriage less that 20 years ago. It is particularly galling when gay people are subject to state sponsored murder in places like Iran and ick is invoked beside Islam.

Via Glenn we have Eugene Volokh being a lawyer with some interesting items in the news has expanded on this bigtime:

(1) Should it be illegal, and, if so, exactly why? Is it just because it’s immoral? Because legalizing incest would, by making a future sexual relationship more speakable and legitimate, potentially affect the family relationship even while the child is underage (the view to which I tentatively incline)? Because it involves a heightened risk of birth defects (a view I’m skeptical about, given that we don’t criminalize sex by carriers of genes that make serious hereditary disease much more likely than incest does)?

(2) Given Lawrence v. Texas — and similar pre–Lawrence decisions in several states, applying their state constitutions — what exactly is the basis for outlawing incest? Is it that bans on gay sex are irrational but bans on adult incest are rational, and rationality is all that’s required for regulations of adult sex? Is it that bans on gay sex don’t pass strict scrutiny (or some such demanding test) but bans on adult incest do? Is it that Lawrence rested on the fact that bans on gay sex largely foreclose all personally meaningful sexual relationships for those who are purely homosexual in orientation, whereas incest bans only foreclose a few possible sexual partners?

Go and read his whole point but let me say that a Judge named Antonin Gregory Scalia saw this coming a mile away as did an awful lot of us. When I made the argument saying that you can’t logically ban polygamy while allowing gay marriage in a discussion on Center of Mass podcast this year my host insisted that it was totally different.

I’ve talked about the ick factor in the past. And let me quote myself one more time:

This is a republic. If the people who support gay marriage can move enough of the public in the individual states or on a national level to support it in an actual vote then the more power to them. That is how a republic works. With the media’s help they are well on their way to doing so, but let the people vote for it and if you win, you win. If your argument holds water it should be capable of doing so and you should be able to make that argument stick.

Take out the word gay marriage and enter anything you want instead and the argument holds. The fact that a respected lawyer is actually making the case tells me this is already coming down the pike. And let me leave you with some John Nolte in terms of changing the culture with the help of the media:

And this is how cinematic propaganda works. Whether the filmmaker’s motivations are good or evil, the idea is to get decent and thoughtful people to start second guessing themselves as they’re enveloped in the dark and held captive by the powerful sound and fury of the moving picture. First we’re led to identify and sympathize with a particular character, then that character does something designed to challenge our belief structure

None of this is a bug. It’s a feature.

it looks like that old “rape by deception” involved more than meets the eye.
A lot of people are jumping on this story saying people jumped the gun on the other one, I have some questions. In the base story of the guardian they quote of of the judges:

Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.

Question, if this is a plea bargain why is the judge saying something like this if there is evidence of force? Let’s look at the newly translated story again:

Over the years B. filed 14 complaints, most of them for sexual offenses, against her father and other men. Some of the complaints were found to be justified, the defendants confessed and were sent to prison. Other complaints didn’t result in indictments, sometimes due to lack of evidence, and sometimes because B.’s testimony was doubted. When B. was first put on the stand in Kashur’s trial, the defense didn’t have all the 14 cases, but only a short list with the details of the cases, without all the evidence. Therefore, A’ladin applied to receive the cases following B.’s testimony. A’ladin’s intention was to put B. back on the stand and question her about the details of the cases where she was found to be unreliable – in order to discredit her in this case as well.

The Deputy Prosecutor Wittman did not like the idea of putting B. back on the stand. The previous time was, as mentioned, nothing less than traumatic, and B. was not interested in it herself. “We thought that the defense attorney’s request to question the plaintiff again about those past complaints, some of which didn’t lead to indictments, was legitimate”, Wittman explained to HaIr, “therefore, we faced a dilemma whether to expose the plaintiff once against to the cross-examination of the defense attorney over these complaints, which would inevitably lead to another traumatic experience for the plaintiff, or reach a plea bargain, as the defense attorney suggested.”

And this:

“Kashur was tried for forcible rape, but during the hearing of testimonies some difficulties with evidence arose and therefore negotiations were held between the Prosecution and Defense and we reached a plea bargain… according to the plea, even the Defense admitted to rape and deceit.”

I don’t claim to be either a lawyer or an expert on Israeli law, but I have several questions:

1. In the US you can indict a ham sandwich if there is a history of complaints that doesn’t result in incitements would you not be suspicious?

2. I note that about you see a list of “confessions” that led to prison, but not a single trial. How many of those confessions were plea deals? If Miss “B” has a history of accusations wouldn’t you think that at least one would go to trial?

3. How is it that a defendant after a plea bargain can appeal? Wouldn’t that be waved as part of a plea deal?

4. The “Confessions” listed above, what were they confessions of? Were they of lesser charges to avoid being tagged as a rapist?

It certainly sounds like B had a hard life, but read this closer. I have to disagree with the folks at the Volokh Conspiracy, they are basing their conclusion on “B” ‘s testimony which may or may not be reliable. I’ll give them their point on a plea bargain, but the judge’s statement suggests that this didn’t involve violence.

The fact that several anti-Israeli sites jumped on this naturally gives them suspicion, they’ve earned that suspicion for their denial of reality on other issues, but I would like to know more about those other cases. Is this guy just one of several who made a deal out of fear? Consider this story.

The idea that traumatised people, especially the victims of child sexual abuse, deliberately repress horrific memories goes all the way back to the 19th century and the theories of Sigmund Freud himself. But now some experts are saying the evidence points the other way. Professor Grant Devilly, from Griffith University’s Psychological Health research unit, says the memory usually works in the opposite way, with traumatised people reliving experiences they would rather forget.

Here is a thought, how many of those guys coped a plea during those days to avoid worse charges? How guys who didn’t plead were convinced by this stuff?

I’ll give Volokh that I may not know all the facts, but I don’t think he does either and one additional report doesn’t make the story complete, at least not yet.

The problem is that people are looking at an Arab v Jew issue. I think this case is less about that and more about a disturbed woman with issues and the men Jewish and Arab she has sent to prison over the years. Is this an abused woman who was abused one more time or Duke on the Jordan?

I don’t know, and most likely when it comes down to it, neither do you.

Memeorandum thread here

The fine blogger Roxeanne de Luca takes exception with me and Stacy for our defense of the Arab man in this story, to wit:

What really appalls me, though, is the idea that since every man out there lies to get sex, it’s okay and cannot possibly be criminal. Humans could not have long survived, let alone created our civilisation, if we only did things that we want to do and used any means to obtain our goals.

I have to disagree, I’m not defending the man’s actions but I don’t believe it is fair or proper to call it rape with all it entails.

Israel can have whatever laws it wants but I think it is wrong, not because the guy is good, or the lady is evil but words carry meaning and the meaning of what happened certainly isn’t rape.

Oh and the meaning of the title, Roxeanne’s blog won’t allow a comment with the word rape, so I replaced it with “Cabbage” throughout.