The Black Madonna

Religious Freedom, but apparently not for Supreme Court Justices

This entry originally appeared in The Black Republican.

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The Supreme Court will hear the pledge of allegiance case sent up from the 9th Circuit Court of Appeals. It was painful enough to imagine SCOTUS taking on this case, knowing how it butchered the last two rulings it made in May. (The sodomy and UM admissions cases.) But it became a real migraine when I got to this:

Justice Antonin Scalia said he will not take part in the case. He did not explain why, but Newdow had challenged Scalia's impartiality based of remarks Scalia made at a 'Religious Freedom Day' observance this year. Scalia said the issue would be better decided by lawmakers than judges.

Scalia's absence sets up the possibility that the remaining eight justices could deadlock 4-4. That would affirm the 9th Circuit's ban on the religious reference, which would apply to 9.6 million schoolchildren in the nine states the court oversees: California, Oregon, Nevada, Montana, Washington, Idaho, Arizona, Hawaii and Alaska, plus Guam.

Considering the facts that the Court probably won't change course in mid-stream, and that they probably would have dispensed with it without hearing it if Scalia had been on the bench, expect them to issue another ruling that ignores the Constitution. I'm very afraid there'll be little of the document left before we're able to appoint new justices to replace the activists sitting there now.

An irony of the situation is, of course, that Scalia is apparently being guilted into excusing himself because he spoke up away from the bench, thereby proving that the Justices who interpret the Bill of Rights apparently have little chance to excercise those rights themselves - at least when you're forced to play by the rules imposed by liberal double-standards.

Trifecta, Part I

This entry originally appeared in The Black Republican.

Jacob Sullum surgically analyzes the differences (of which there were few) and similarities (of which there were many) between the ban on partial-birth abortion and (another) proposed ban on assault rifles.

Another difference between the two bans is that supporters of the abortion bill are more honest than the anti-gun activists about what they're trying to accomplish. President Bush, who is expected to sign the bill soon, called it "very important legislation that will end an abhorrent practice and continue to build a culture of life in America." That "culture of life" presumably will include the recognition that D&E abortions are just as bad as D&X abortions. If killing a fetus is murder, doing it hidden from view does not make it OK.

During the debate over the bill, Sen. Sam Brownback (R-Kan.) displayed a photograph of a 21-week-old fetus who had suffered from a birth defect that was surgically corrected in the uterus. "Is little Samuel's hand the hand of a person," he asked, "or is it the hand of a piece of property?"

Sen. Brownback has entered the realm of abortion debate that is seldom tread upon - the contention that in order to rationalize the practice of abortion, one is not required to prove that a woman has a right to "privacy" (a word that does not appear in the Constitution) - one must merely reason that abortion cannot be regulated because the woman controls the property rights to her own womb. I find it ironic that the clause that guarantees this right ends with the phrase, "without just compensation".

As a result of this revelation, I suggest Congress pass a law declaring eminent domain (based on future income taxes) over every fetus in America, and which requires any woman unwilling to carry a child to term to accept a reasonable sum as "just compensation" for the purchase of the fetus by the federal government in lieu of an abortion. Upon delivery, the 13th Amendment would require the federal government to free the child of his indentured servitude, and since he was now a ward of the state, he could be offered for adoption or placed in appropriate foster care.

Sounds reasonable, doesn't it?

Trifecta, Part II

This entry originally appeared in The Black Republican.

Now we turn - merely as an interlude, of course - to the heart of the matter. Daniel Henninger lays out for us a scene very reminiscent of the last time the Supreme Court made a judgment over the worth of a human soul.

The men who made the American Constitution understood that nothing in the pristine vapors of their nation was so special or unique as to ensure that Jack would never despise the opinions of Tom--and more than anything would like to shut Tom up, for starters. It is clear in the Federalist Papers that the Founders, above all, tried to reduce the destruction often done to civil life by political factions. I don't know that James Madison is spinning in his grave over the factionalism washing through U.S. politics, but surely he is heaving heavy sighs.

Of course, there are also differences. In 1860, the problem had permeated all facets of the two very different cultures that then existed in our country. The problem was resident in our homes, our fields, and our legislatures. Nowadays, it simply exists in our courts, where most people assume they have no rights other than those that are argued by a high-priced lawyer, or adjudicated by a federal judge.

I think many people who don't get paid for waging politics are becoming quite frustrated with dysfunctional legislatures that are now polarized--as in Congress or in California--essentially along the cultural faultlines created by 30 years of allowing judges to pre-empt the broader community's ability to discover, or re-examine, its social beliefs. These legislators have become little more than clerks to judges and the complainants in their courts--the law as not much more than a brief. When this happens, citizens lose their status as voters or electors and become mere courtroom spectators. How can this be good?

The question is, will Americans continue to allow this "war" described by Mr. Henninger to rage in their courts? Or will they rise up in defense of their "public property rights"?

Trifecta, Part III

This entry originally appeared in The Black Republican.

I had meant, in Part III, to link to a decisive op-ed piece describing the failure of legislatures of the various states to impose their will - and ultimately, the will of the people - over the objections of an unelected clique known affectionately as "the court system". Unfortunately, I lost track of the link, and you get Howard Fineman instead.

The president isn't the only Bush working the Red State voters hard on cultural issues. His brother is, too. In Florida, at Gov. Jeb Bush's urging, the Legislature empowered him to order the resumption of tube feeding to a severely brain-damaged woman named Terri Schiavo, who had been in a vegetative state for 13 years. The governor sided against Schiavo's husband and with her parents, who wanted her kept alive. More important, Bush sided with anti-euthanasia forces, who share many ties and sympathies with those who oppose abortion.

As a family, the Bushes are making a political and moral statement: We are for the sanctity of life, as the Catholic Church defines it, and against legal powers that would extinguish it. (Except in the case of the death penalty, which the church also opposes.)

If it sounds like a Holy War at home it is, and the Bushes are hoping that red is the color not just of blood but of victory.

I don't have much to say to Howard, except that I think he hasn't quite whitewashed all the disgust out of his "journalism", and he's treading quite close to anti-papism. And I'm not surprised by either.