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22:52
Western Civilization: Not only the best Plame thread out there, not only the best political thread for a good long while, but possibly the best thread that has ever been published on the web.
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21:43
When the history of the fall of the Soviet Union, a fascist empire, is written, more than a footnote should be given toKarol Józef Wojtyla the bishop of Rome and head of the Roman Catholic church since 1978, the first non-Italian pope in 455 years and the first ever from a Slavic country. His crusades against political oppression have been widely praised, and his trips abroad—90 by the year 2000—have attracted enormous crowds (some of the largest ever assembled). With these trips, John Paul has covered a distance far greater than that traveled by all other popes combined. They have been an outward sign of the efforts at global bridge-building between nations and between religions that have been central to his pontificate. The journeys also played a role in the final years of the Cold War, when his nonviolent activism spurred movements that contributed to the peaceful dissolution of the communist Soviet Union in 1991. John Paul's constant efforts to reach out to people of other religions, most notably Jews and Muslims, culminated in a dramatic trip to the Holy Land in March 2000.
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20:24
The Framers, as we have seen, divided with regard to the necessity of courts inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power 'shall be vested' and to which nine classes of cases and controversies 'shall extend'. While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them with all the jurisdiction they were capable of receiving, the First Congress acted upon a wholly different theory. Inferior courts were created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them, diversity jurisdiction was limited by a minimal jurisdictional amount requirement and by a prohibition on creation of diversity through assignments, equity jurisdiction was limited to those cases where a 'plain, adequate, and complete remedy' could not be had at law. This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it was within their power to confer or to withhold jurisdiction at their discretion. The cases have generally sustained this view.
Pursuant to the Supremacy Clause, if the federal Congress passes a law which is in conflict with a state law, then the federal law preempts the state law. That seems to be the basis for Pub. L. 109-3, which arguably conflicts with Florida state courts' judgments and procedures. The mere fact that such regulations conflict is immaterial. The federal Act would trump any state regulation under the Supremacy Clause.
I can otherwise find no reason why 109-3 should be considered to be unconstitutional. It is not a bill of attainder. It singles out one party not for punishment, but for another reason. It was passed pursuant to Congress' plenary power to delimit the jurisdiction of inferior federal courts. This power has been determined to exist in Article III.
The main accusation of unconstitutionality arises when one considers that the intended result of the law - its intention that the federal court review the case 'de novo' - was essentially to turn a federal District Court into an appeals court of the state courts. Is this invalid? I've found nothing to suggest it is.[W]hat is the role of the Constitution, and the courts, in actually preserving state autonomy? The Constitution's primary protection of state autonomy is not the Courts; it is democracy and the checks and balances contained in our federal constitution. When the federal government gets too powerful, ultimately the people have the power to remove the political representatives which have made it too powerful and replace them with representatives who promise to devolve power to the states. If federal taxes are too high, if bureaucrats interfere unduly with local school boards, if the regulatory burden on business becomes excessive, our founders expected that the first line of defense would be at the ballot box. To guarantee that the people could check the powers of the federal government, the founders carefully crafted checks and balances among the federal branches themselves. The Constitution contains a series of clearly defined protections to keep the judiciary, or Congress, or the Presidency in check. No similarly well-defined protections of States Rights exist. For this reason, the judiciary has had great difficulty arriving at a principled rationale for protecting state autonomy.
Ultimately, the validity of the 'de novo' requirement in 109-3 is a matter for public opinion, not law.
We might object that the Tenth Amendment requires all powers not explicitly given to the federal Congress to be left to the states. But Congress' plenary powers to delimit or extend the Article III jurisdiction of the federal inferior courts, combined with the Supremacy Clause, suggest that the law's requirement of 'de novo' review, notwithstanding the state court proceeding, is authorized. There are, in other words, no protections in place with respect to the ability of state court decisions to be appealed to federal District Courts in the federal Constitution.
We can therefore assume, as did Judge Whittemore, that Pub L. 109-3 is constitutional, at least for purposes of determining the merits of a TRO. And there is absolutely no doubt in my mind that Judge Whittemore ruled correctly in this case, since the evidence clearly supports the de novo conclusion that there is no basis for any allegation that Terri Schiavo's due process rights were violated with respect to the application of 765.401, Fla. State. You don't like that law? Change it.
But if you do change it, you better be a citizen of Florida, not a Republican Senator from Washington, D.C. The hypocrisy of a party ostensibly known for championing states' rights falling over itself to impinge upon the will of a state will, I believe, come to be seen as the converse side of the new world we have entered since September 11, 2001. Since that date, we have preemptively attacked and liberated a fascist Islamic state, not to better ensure the welfare of its citizens according to a particular dogma with respect to which rational persons may differ, but to afford them the opportunities which total liberty may afford. For the Senate Republicans to spurn in Florida precisely the same paradigm of liberty that we have attempted to enforce in Iraq is to succumb to the same hypocrisy that torments precisely those states which presently suffer under the tyranny of Islamism, the same tyranny against which we fight. We are only qualified to fight that fight if we have rid ourselves of the same temptation to understand law as a dogma of transcendent welfare, rather than what it should be: a gateway into unbounded opportunity.
Pub. L. 109-3 may well be constitutional. But it certainly does not attempt to compromise the law of Florida, which the people of that state have determined is to govern their affairs. If it had, it would have had problems which the Supremacy Clause could not have prevented, the same problem which a federal law pertaining to abortion would have had: under precisely which of Congress' enumerated powers would such a law have been passed? Neither, judging by the recent polls, is Pub. L. 109-3 itself representative of the will of the people of the United States as a whole. I submit that this one Act of Congress against the wishes of an unwilling state will come to reverberate for years, perhaps decades, and will create a massive revolt against the movement that created it. Some tell us that "only God can take a life". I predict that in reply the people will say:Who knows? Maybe my life belongs to God. Maybe it belongs to me. But I do
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know one thing: I'm damned if it belongs to the government. ARTHUR
HOPPE
21:18
During a January 2000 court battle in which Bob and Mary Schindler sought to wrest Terri's guardianship from Michael Schiavo, the Schindlers repeatedly conceded that their daughter's brain damage was extreme. ''We do not doubt that she's in a persistent vegetative state,'' Pam Campbell, then the Schindlers' lawyer, told the court. Later, Michael Schiavo's lawyer, George Felos, asked Mary Schindler, ''Is Terri in a vegetative condition now?'' to which she replied, "Yes. That is what they call it.'' ... Michael Schiavo has also been cast by detractors as an adulterous, heartless husband who wanted to remove Terri's feeding tube in order to access her trust fund. But testimony from court files documenting the 12-year struggle over Terri Schiavo's fate tells a far more complex story. Beyond accepting that their daughter was in a vegetative state, the Schindlers had, years earlier, encouraged Michael to date. When the Schindlers later accused Michael of greed, he offered to donate Terri's entire trust fund to charity. Up until a bitter falling out in 1993, Michael Schiavo and the Schindlers were united in efforts to rehabilitate Terri. They moved in together after Terri's collapse in February 1990, and Michael called the Schindlers ''Mom and Dad.'' A year later, the Schindlers encouraged their son-in-law to get on with his life and date. They even met some of the women he saw. ''I looked at that as maybe he was starting to take a step in the right direction and get his life back together,'' Bob Schindler said in a 1993 deposition. "He's still a young man. He still has a life ahead of him.'' The Schindlers later said that they urged Michael to see other women because they ultimately hoped to gain guardianship of their daughter. ... [T]he Schindlers ... said he wanted to kill Terri for her money. But in 1998, when one of Terri's court-appointed guardians noted this conflict of interest, Michael offered to donate Terri's estate to charity, as long as the Schindlers stopped fighting his decision to remove Terri's feeding tube. The Schindlers rejected this proposal. All but $50,000 of the award has since gone to Terri's care and court costs. If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: ... (b) The patient's spouse ... (d) A parent of the patient[.] Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. [A] proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
Since everyone else in the universe is writing about Terri Schiavo, I might as well put in my 2 cents. Firstly, the stereotype of Michael Schiavo as the evil villain twirling his moustache as his wife struggles on the railway tracks needs to be put into perspective:
Secondly, the ineptitude of the Florida legislature is striking. 'Terri's Law', passed on October 31, 2003 (Ch. 2003-418, Laws of Fla.) states as follows:The Governor shall have the authority to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient if, as of October 15, 2003:
This Act was hastily passed by the legislature to try to mitigate the effect of another state law, 765.401, Fla. State (2004). 765.401 states:
(a) That patient has no written advance directive;
(b) The court has found that patient to be in a persistent vegetative state;
(c) That patient has had nutrition and hydration withheld; and
(d) A member of that patient's family has challenged the withholding of nutrition and hydration.
Isn't there a little bit of a disconnect going on here? There can be no doubt that the Florida Legislature, on October 21, 2003, had it been much more focused and better advised, could have crafted a statute that might well have prevented the Florida Supreme Court from taking the position that 'Terri's Law' as enacted violated the Separation of Powers. Whereas the law passed by the legislature, permitting the executive to issue a 'one-time' stay in order to directly affect a judgment made by the judiciary, was clearly unconstitutional, a law which would simply have amended state statute 765.401 would have had a much better chance to pass muster, and could have simply made removing nutrition and hydration from patients in a persistent vegetative state illegal without a living will. The legislature would have been quite within the scope of its power to pass such a law. That, ironically, is precisely what the legislature tried to do on March 23, 2005. This time, obviously cowed by overwhelming public backlash against the federal bill, the Florida legislature failed to amend state statute 765-401 by 21-18. Pub. L. 109-3, which the federal Congress passed, at least does not make the Separation of Powers error, demonstrated by Senator Frist's clear comment that "nothing in the current bill or its legislative history mandates a stay". (151 Cong. Rec. S3099-100 (daily ed. Mar 20, 2005)(colloquy between Sens. Levin & Frist)). Yet there is a strong argument that the federal law too, is probably unconstitutional - under which exactly of Congress' enumerated powers is it entitled to force a federal District Court to review, de novo, the judgment of a state court?
The case is certainly a tragedy, but what has become dangerous about it is the lengths to which a state legislature, at least, will go to slam their faces right against the Constitution. We're a nation of laws, and like it or not, Florida law is completely clear. If the people of Florida don't like it, they can change it. But to have Florida attempt a neanderthal brushstroke over the Constitution represents a depressing move. Don't the Florida Republicans who support such moves sense the irony in the fact that the most ardent critics of the set of laws enabling Michael Schiavo to act as he has have been autocratic Islamic states?
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20:35
Ah, George Bush. The Texas chimp. How could he possibly have been so insensitive, so uneducated, in his state of the union address on Jan. 29, 2002, to denounce Iran's leading role in an “axis of evil.” Iran part of the "Axis of Evil"? After all, Persia used to be a worldwide cultural center. What is true of Islam is true of Iran generally - the conversation that Greece was having with Persia has been dominated by Herodotus' focus on Xerxes. But such a conversation was as deep as an ocean, which was ignored by Herodotus, and which is occulted within history. The exchange of religious ideas in the millenium before Christ could not have reached its apex without the religion of Zoroaster, perhaps the world's first true 'religion', in the modern sense. Zoroaster was supposed to have instructed Pythagoras in Babylon and to have inspired the Chaldean doctrines of astrology and magic. It is likely that Zoroastrianism influenced the development of Judaism and the birth of Christianity. The Christians, following a Jewish tradition, identified Zoroaster with Ezekiel, Nimrod, Seth, Balaam, and Baruch, and even, through the latter, with Christ himself. [...] Although Pythagoras cannot have been a pupil of Zoroaster, there are striking similarities of doctrine between Iran and Greece. Anaximander's world picture corresponds to that of the Avesta. Heraclitus seems to have been impressed, in Ephesus, by the practices of the Magi, if not by their theory on the fiery nature of the soul. This would account for the emergence, in 5th-century Greece, of the belief in the heavenly fate of the soul.
("Zoroastrianism." Encyclopædia Britannica. 2005. Encyclopædia Britannica Premium Service 7 Mar. 2005, http://www.britannica.com/eb/article?tocId=9184). Not to mention the writers who during Europe's dark ages were creating masterpieces. Iranian culture is perhaps best known for its literature, which emerged in its current form in the 9th century. The great masters of the Persian language—Ferdowsi, Nezami, Hafez, Jami, and Rumi—continue to inspire Iranian authors in the modern era.
("Iran." Encyclopædia Britannica. 2005. Encyclopædia Britannica Premium Service 7 Mar. 2005, http://www.britannica.com/eb/article?tocId=230069). Now, look at you. You're a horror state, a hell on Earth. But y'all better tense up and wait for the ass-whoopin. The end is coming. There is a wind that is whistling underneath your doorjam and into your closed hallways. Nothing will keep it out. Your political prisoners will not go quietly into that good night, it seems. Nor will your common people long tolerate a nightmare imposed upon them once they realize they have the power to awake. [D]ue to the public´s realization of the events surrounding the boy´s circumstances the cemetery was stormed [in protest] and his burial did not take place.
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21:13
Delacroix 1830
Itjihad 2005.
It occurs to me, on a tactical level that others may find cynical, that the appearance of such women at moments of extreme revolutionary danger like this may be almost consciously conceived in order to confound the (male) soldiers of the oppressive regime (in this case Syrian soldiers or Hezbollah). These soldiers may be on the ground, observing, and may be ordered to terminate the demonstration, or demonstrators. But look at the photograph. Place yourself in the shoes of one of those soldiers. How much harder is it to carry out such orders with her in the picture? They may at least hesitate. Be confounded at least for a short time. Even, perhaps, break down and join the demonstrators. This kind of thing almost certainly happened in Berlin when the Wall fell and during the Russian Revolution of 1989. In any event one can only admire the heroism of the men and women. We are so used to the sanitized Western version of this kind of demonstration. But we need to remember the type of autarky these people are demonstrating against. Demonstrating like this in that sort of environment is a deadly serious matter. This young women, like the men (behind her, in this photograph) is placing herself in danger of losing her life.
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22:06
We can rightfully celebrate not only the increased freedom of women today, but U.S. foreign policy. “Afghanistan has appointed its first female provincial governor in keeping with the new government's policy of promoting women to positions of power”. This is not merely fortuitous. I predict that this will be repeated in Iraq. Compare this event with the ‘democratic’ process in a country that the U.S. hasn’t invaded yet: “Only men are being allowed to take part in the elections. Saudi officials said there was not enough time to establish separate polling places for women. They said they hope women will be allowed to take part in elections scheduled to be held in four years”.
Yet the current weltschmerz against ‘fascist imperial aggression’ is so shrill that feminists would likely reject targeting Islamic countries not only for liberation but also, more troublingly, for approbation.Several speakers at the [Conference on the Status of Women being held at the United Nations] questioned the idea that violence against women is worse in Islamic societies than in others. Yakin Erturk of Turkey, the U.N. special rapporteur on violence against women, says [...] ‘attention has turned to Muslim countries as if there's a specificity there which promotes and perpetuates violence against women. I think it is good to demystify this perception, because it is not Islam or Christianity or any other religion but a coalition of conservative forces who speak on behalf of these religions that is [an] obstacle to women's rights’.
This watery tautology, however, serves neither my argument (that such events as Habiba Sarobi's appointment are a direct and predictable result of liberation), nor Erturk’s (that Islamophobia blinds the West to the fact that we have problems of gender inequality of our own). But does Ertuk really mean to say that elections in the U.S., and for that matter in Turkey, share the same features with respect to gender as those in Saudi Arabia? It is hard to sustain such bloviation, and even this U.N. ‘rapporteur’ must acknowledge that “women in many Islamic countries are lagging behind in the quest for equality, partly because Muslim countries tend to be less democratic”, and that, indeed, “across the Muslim world you find less democratic institutions available to allow women to exercise their rights”.
So there is hope for more categorical statements yet. One of the participants at the Conference is Ayesha Imam of Nigeria, who explains that in Muslim societiesthere are the major issues of ‘honor’ violence or ‘female genital cutting’ also known as female genital mutilation. In the first case, a woman may be beaten or even killed by members of her own family if she is raped because the violence has dishonored the family. ‘The woman embodies the honor of the family’, says Imam. She says such honor violence may even result if a woman simply talks to a person the family disapproves of. In some cultures, cutting off part of the female genitalia is a common practice and is attributed to Islam.
Yet even Ayesha Imam, who courageously points a finger at such practices, seeks to present a solution not in terms of moral condemnation, but of health issues.[O]ne way to deal with the issue is to ‘focus not on trying to stigmatize cultures or values of cultures as wrong or evil or immoral, but focusing on practices which harm people in health terms, in dignity terms, in rights terms whilst validating the cultures themselves’.
The message that seems to be coming out of this Conference is that Islamic ‘values’ are never wrong, merely unhealthy, and deserve healing, not condemnation. Why are these women so keen to tiptoe around these issues and not tread on anyone’s toes? Why is it so unpalatable to make a moral judgment?
By contrast, Irshad Manji, whose book I am currently reading, has no problem exploding Islamic mores (and non-Islamic ones too). While I am sure that she would recoil in horror from many of my own opinions, I cannot sing enough praises about her courageous book, since it pierces the walls of Islam with dialog and dissent instead of skirting them. Thomas Friedman today notes that “[y]oung Arabs and Pakistanis are now downloading [her book] in private and discussing it. This week she was approached by a small Arabic publisher who operates in Lebanon and Germany - and has just opened in Baghdad - offering to publish her book in Iraq! ‘I can't help but appreciate the symbolism’, she said. ‘Baghdad was the seat of the Islamic enlightenment from the eighth to 12th centuries. It was a crossroads of goods, services, big ideas’.”
Irshad Manji’s focus on dissent is, according to her, nothing new within Islam, but in fact is rooted in Islam’s very history. This tradition of free thinking she calls ‘itjihad’.In the early centuries of Islam, thanks to the spirit of ijtihad, 135 schools of thought thrived. Inspired by ijtihad, Muslims gave the world inventions from the astrolabe to the university. So much of what we consider ‘western’ pop culture came from Muslims: the guitar, mocha coffee, even the ultra-Spanish expression "Ole!" (which has its root in the Arabic word for God, "Allah"). What happened to ijtihad? toward the end of the 11th century, the "gates of ijtihad" were closed for entirely political reasons. During this time, the Muslim empire from Iraq in the east to Spain in the west was going through a series of internal upheavals. Dissident denominations were popping up and declaring their own runaway governments, which posed a threat to the main Muslim leader -- the caliph. Based in Baghdad, the caliph cracked down and closed ranks. Remember those 135 schools of thought mentioned above? They were deliberately reduced to four, pretty conservative, schools of thought. This led to a rigid reading of the Koran as well as to a series of legal opinions -- fatwas -- that scholars could no longer overturn or even question, but could now only imitate. To this very day, imitation of medieval norms has trumped innovation in Islam.
As any student of history knows, Irshad Manji is downplaying the contribution of Islam to the West. Without Islam it is completely possible that Western civilization may have known no philosophy or science whatsoever, at least until hundreds of years after they were being rediscovered by medieval monastics. And this golden age of free thought within Islam is itself being prepared today for a big-time revival. Irshad Manji is hardly Nixon going to China here, since she is a gay woman who lives in the West, not an imam who lives in Saudi Arabia. But the fact is that even the extraordinary figure of Irshad Manji is not alone in her willingness to speak up against Islam’s unacceptable practices against women. The practice of ‘itjihad’, long rooted in Islamic thought and tradition, is alive and well among many Muslim women today. Many women of Islam are now practicing a revitalized faith, a faith which does not abandon Islam, but shakes its foundations. Such women, not the apologists of the U.N., are the driving force behind a new generation of young Muslims who may in the end save Islam itself.
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