LawCulture

Avoiding the Dare

      Some months ago, I blogged about "the dare doctrine," suggesting that South Dakota's law banning all abortion except to save the life of the mother was akin to a game of chicken, daring the Supreme Court to void South Dakota's own interpretation of the breadth of the privacy right in our Constitution.

      Yesterday,  a majority of South Dakotans voted to repeal that state law.  I note the back and forth here.  The Supreme Court in 1973 decides Roe v. Wade, not a popular decision then, but one that whose subject matter (permissive abortions) had been gaining currency in the state legislatures. From 1973 onward, some describe the anti-choice/pro-life movement as a "backlash" against an "activist" Roe court. Since then, state legislatures and the U.S. Congress constantly debate how to put fetal rights back on the table.  Constitutional amendment? State laws restricting access to abortion? The latter took hold (see Casey) and grew stronger until in 2006, South Dakota legislators pass the law that restricts all abortions except to save the life of the mother. This openly defies Roe v. Wade, pitting the sovereign state of South Dakota against the Supreme Court. Which sovereign decides the scope of the privacy right? Instead of taking the constitutionality of that law to court, South Dakotans mobilize to repeal the law that their elected officials voted onto the books. This is an instance where truly "the people" are sovereign and have spoken -- not the elected officials purporting to speak for the people, and not the courts who, in issues of fundamental rights, also purport to speak for “the people” as individuals as against the tyranny of the majority. The people of South Dakota had the last word on their constitutional rights … at least for now.

Election Day -- Swinging the Vote

Folks over at blackprof.com have posted this ad for comment, apparently run by the New York Republican State Committee. Is this a sign of desperation? It surely is "old school," as Christopher Bracey says. But I'll bet the folks conceiving of this ad are hardly old -- part of a new generation unashamed of harnessing racism for political ends. Are those promoting these ads hoping that the public will not get the message of racial antagonism?  Is there an upside to these ads?  Maybe ads like this should make us grateful for the First Amendment insofar as it encourages racists to show their true colors (pun intended).

Battle of Fundamentals

As a student of the visual, I could not help but be startled by this photograph on the front page of Sunday's Boston Globe. It reminds me of so many other incarnations of two-dimensional larger-than-life Leaders. Engrave his head in stone and he could be from the Soviet era rather than the 21st century digital revolution. Put his voice over a megaphone and blast him through the public squares, he could be from, well, just about any other fundamentalist or totalitarian regime that aches to get inside the head of the people, to control thought and action. That the caption of this photo is "Bush Brings Faith to Foreign Aid" only furthers the parallel. This is not an image of a leader who seeks to persuade through rational discourse or democratic dialogue. It is an image of a leader who lords over the crowd and says "follow me, because I say so." Like the discourse of religious fundamentalism, there is nothing about this image of the "leader of the free world" that implies "freedom."

Hamdan and the War Crimes Act

I posted on this issue at the new Georgetown Law Faculty Blog, which is here.

Was it something we said?

[The NYT reports on the latest Pew Research Center poll]:

"Global Image of the U.S. Is Worsening, Survey Finds"

Oops.

The bad news: "As the war in Iraq continues for a fourth year, the global image of America has slipped further, even among people in some countries closely allied with the United States, a new opinion poll has found. "

For instance, "Support for the fight against terrorism led by the United States is also down, Pew found. Although strong majorities in several countries expressed worries about Iran's nuclear intentions, in 13 of 15 countries polled, most people said the war in Iraq posed more of a danger to world peace."

The good news: "Many respondents distinguished between their largely negative feelings about President Bush and their feelings about Americans in general."

War & Law

Following up on my last post about Bush Admin blurring of the lines between violence and law-- consider the various official responses to the three suicides of Guantanamo inmates. Camp Commander Admiral Harry B. Harris Jr. insisted that the suicides were "not an act of desperation, but an act of asymmetrical warfare waged against us." Then the NYT reports that Gen. Bantz J. Craddock, commander of the United States Southern Command, thinks the suicides "may have been timed to affect the Supreme Court decision on the Hamdan case. 'This may be an attempt to influence the judicial proceedings in that perspective.'"

So, I think I get it. The Guantanamo inmates didn't kill themselves because being detained indefinitely -- maybe forever-- made their lives seem not worth living; they killed themselves in order to strike out at the United States. More specifically, they killed themselves so that they could strike the US from within by making the Supreme Court feel sorry for them, which could in turn influence the Court in the Hamdan case. So a defeat for the Administration in Hamdan would actually be a cleverly planned victory for the terrorists.

I think this actually makes sense to someone.

Delivering "justice" to Zarqawi?

President Bush's statement on the death of Zarqawi: "Last night in Iraq, United States military forces killed the terrorist al Zarqawi.  At 6:15 p.m. Baghdad time, special operation forces...delivered justice to the most wanted terrorist in Iraq." (emphasis added).

Zarqawi's death is difficult to mourn. He was a brutal terrorist, and there's no reason to doubt that the air strike that killed him was justified. But though it was justified, was it really "justice"?

You might say that Bush was merely using a figure of speech-- that "justice," in this context, simply meant that Zarqawi got what he deserved. But I don't think it was just a figure of speech. On the contrary. Clausewitz saw war as "a continuation of politics by other means." Bush takes it a step further, seeing war as form of law by other means.To Bush, war is a form of law, and law is a form of war.

This administration has repeatedly sought to blur the boundaries between law and violence in the context of the war on terror, both through efforts to "legalize" various forms of violence (including once impermissible forms of violence, through the torture memos, for instance) and through efforts to militarize law and legal process (consider the Administration's largely sucecssful efforts to conceptualize Padilla, Hamdi, et al. as enemy combatants).

I'm not sure "militarizing law" is the right way to put it- but think of the term "lawfare," used to suggest that "the enemy" is using international law aginast the US as part of a "war" against us (and also used to suggest that those who raise legal objections to US war on terror tactics are somehow aiding the enemy). 

I'd be the first to say that the boundaries between "law" and "violence" or "force" are inherently blurry and socially constructed - but the administration's efforts to further blur those boundaries strikes me as both interesting and disturbing.

A Sustained Attack on the Culture of Death

Last December, the Stanford Law Review published a pro-death penalty article by Cass Sunstein and Adrien Vermeule, with a response by Carol Steiker. Sunstein and Vermeule argued that even if capital punishment violates someone's right to life, it is still morally obligatory if through deterrence it would save more people than it kills. My colleague Eric Blumenson has just posted an article on SSRN outlining heretofore unanalyzed logical and moral problems with the Sunstein-Vermeule approach. Importantly, Blumenson's article is relevant not only to the Sunstein-Vermeule specific death penalty argument, but to the similar, lesser-evil logic behind post-9/11 proposals to "violate the human rights of some in the name of human rights for all." The article pointedly shows whats wrong with this thinking, and how radically life would change in a country that took the Sunstein-Vermeule rationale to heart.

The generals vs. generalissimo Rumsfeld

Los Angeles Times Rosa Brooks:

A 4-star defense of the republic

April 21, 2006

WHEN SIX recently retired generals criticized Defense Secretary Donald Rumsfeld's handling of the Iraq war and urged his resignation, the Bush administration reacted as if the generals had announced an impending military coup. Within days, administration loyalists were suggesting that the generals had been disloyal not merely to Rumsfeld but to American democracy itself.
The rest is here.