Category Archives: Courts

Elena Kagan wants to criminalize criticism of Elena Kagan

I don’t mind that Elena Kagan is a lesbian. I do mind that Elena Kagan wants to criminalize criticism of her lifestyle:

“We should be looking for new approaches, devising new arguments,” Kagan declared, according to video of the event reviewed by POLITICO. She seemed to count herself among “those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence. Such statutes may still be constitutional,” Kagan assured the meeting. She pressed for “new and harsher penalties against the kinds of violence against women that takes place in producing pornography, the use of pandering statutes and pimp statutes against pornographers…perhaps the initiation—the enactment of new statutes prohibiting the hiring of women for commercial purposes to engage in sexual activities.”

My view of freedom is much closer to that described in a recent post of The Metropolis Times:

At my local college campus, we have a man who visits and tells students that wearing the color pink will send them to Hell, and that God hates homosexuals, Catholics, Mormons, liberal Christians, Buddhists, sororities and fraternities and a large number of other things.  Invariably, a group of students will spontaneously form and argue with him.

This is the only country in the entire world where none of the people involved are breaking the law.

…. unless Elena Kagan gets her way.

Against The Racial Gap

It goes without saying that the Iraq War, as it has been fought since the “occupation” was begun, has been a disaster. Thousands of American lives have been lost in the persuit transition the Sunni Arab regime of Iraq into a liberal mandarin democracy. In terms of American lives lost, the Iraq War has been the greatest foreign policy disaster since 9/11… if not the Vietnam War. The Iraq War, 2004 till now, is the greatest stain on George Bush’s legacy.

The Case Against George Bush

The decisions fo Chief Justice John Roberts and Associate Justice Samuel Alito, alone, make up for Bush’s errors in other places.

The goal of our time is “shrinking the gap,” saving from lawlessness that portion of humanity stuck in tribal warfare and murderous violence. An important part of thsi is shrinking the Afro-Islamic Gap, using everything from a military-industrial complex to mass humiliation to save lives and make the world a better place.

However, there is a gap in America too. Most egregiously, tens of thousands of infants are put to death every year in abortions. In April, the Supreme Court took the first steps of ending recreational infanticide within the United States.

Now, more great news: the Supreme Court has sharply limited the ability of school districts to use race as a factor in school assignments.


A Ghettoized Community

It’s impossible to talk about race in America without describing the population known as “black,” so here goes. American blacks generally form a hyrbid population, with about a 20% ingression of caucasoid genetics into an otherwise 80% negroid population. (By comparison, Tiger Woods is 25% negroid while Barack Obama is 50%. Turkish “Turks” are about 20% Turkik and 80% Anatolian/”Greek”.)

An old and regrettable policy in the United States has been to regard as “black” anyone with any negroid blood, and to then use this designation to determine public services. (A variation on this are is to regard anyone with any non-caucausoid blood as a “minority.”) Whatever the motives of the racialists who created and enforced the plan, the effect has been the same: to minimize the exposure of “blacks” to the market system and instead enforced a ghettoized economy of rents and duties on them.

There is a reason that “African Americans” (those “blacks” whose ancestors were slaves in the American South) perform poorly as a population, and it is neither their genes nor their past as slaves (they share both with their higher-performing Afro-Carribiean fellow citizens). Rather, it is the history of race-based separation that they have faced in America, from the end of reconstruction to now, rather devised (largely) by American Democrats who felt that blacks were unable to compete with whites before Brown v. Board… to (largely) American Democrats who felt that blacks were unable to compete with whites after Brown v. Board.

The Supreme Court’s decision today is a powerful blow to a racialist America, and a large step forward in the integration of all Americans into the Core.

Thank you Chief Justice Roberts, Justice Alito, Justice Kennedy,Justice Scalia, and Justice Thomas.

Thank you, President Bush.

Thoughts on Mike Nifong’s Disbarment (and why he should be executed)

Mike Nifong, the prosecutor who falsely charged undergraduate students at Duke University with rape in order to help his re-election campaign, was disbarred this afternoon. He had already resigned, from the witness stand, yesterday.

I am happy this much has been done, but generally saddened by what has not and will not be done.

  • I regret that Mike Nifong will not be imprisoned for his crimes.
  • I regret that Crystal Gale Mangum, Nifong’s co-conspirator, will not be charged.
  • I regret that Jesse Jackson, who offered to pay Crystal Gale’s bills even if she was lying, will not be charged.
  • I regret that the above three thugs will not be prosecuted as sexual predators and be listed as such, for the sadistic way they used the sex act to terrorize youths.

For that matter, I regret that Mike Nifong will not be executed by the State of North Carolina.

Capital punishment is both a harsh and a severe punishment. It justly reflects society’s verdicts that some crimes are so harsh they can never be undone or forgotten, while it humanely avoids caging persons like dogs for decade upon decade. It reduces crime, saving innocent lives for every guilty life taken.

Some new core states, like China, execute corrupt officials who pervert justice for their own ends. Thus reduces corruption and increases public trust in government. However, Mike Nifong’s nightmarish rule as prosectur shows (as if there were any doubt) that terrible corruption is not limited to places “over there,” but exists here in America, as well.

It’s been said that “the new Core sets the new rules:” in other words, the days of Europe influencing foreign laws are ending while the days of successful, developing countries influencing the world has started. Let’s hope this is the case. Let’s hope that in the future, criminals like Mike Nifong can get the justice they deserve.

Obvious Genius

There are so many things right with KSR v. Teleflex (pdf version) that it’s hard to know where to begin.

First, let it be said that patents only exist in this country because they “promote the progress of science and useful arts.” And second, well, I’ll let Anthony Kennedy’s unanimous decision speak for itself:

Helpful insights, however, need not become rigid and mandatory formulas; and when it is so applied, the TSM test is incompatible with our precedents. The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

The question is not whether the combination was obvious to the patentee but whether the combination was obvious to a person with ordinary skill in the art. Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not thesubject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

The Court hasn’t signifiacantly ruled on patent law for a while, so the country’s patent laws have essentialyl been written by lower courts. These courts have brought upon one disaster after another, making patents easy to get and turning them into cash cows for rentier, vampire companies. Companies that actually innovate and make new products are sued into the ground (or merely for a few hundred million) by lawyers who dredge up this or that new patent.

This doesn’t merely hurt honest businesses, of course. It also drives up the cost of computing, throwing friction into the economy and hurting the poor worst. For instance, take the great open source projects Linux and OpenOffice. Linux aims to provide a free alternative to Windows and other operating systems, while OpenOffice is a completely-no-cost riff on Microsoft Office. The harder it is to challenge patents, the easier it is for anyone to threaten to shut down those operations unless they are somehow paid money. This adds to the cost of doing business of every company that would use Linux and OpenOffice, and of course most seriously harms those least able to pay high prices charged by the rentiers and their friends.

Besides being good for honest businesses, good for consumers, good for the economy, and good for the poor, this ruling is good for the Gap. The Core requires would-be entrants to live under hte same patent regime that they do, so the easier the laws in the Core, the easier it is to enter the Core. Likewise, since 9/11. the New Core has been pushing highly developed countries like the United States to relax patents. This ruling helps to tie the New Core and Old Core closer together.

Thank you Anthony Kennedy, and thank you Supreme Court!

Gonzales v. Carhart alone justifies the Second GW Bush Administration

Thank God for Justice Alito.
Thank God for Justice Roberts.

The best-of highlights from the ruling, courtesy of Justice Ginsburg:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey,between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (“Congress could … conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U. S., at 850)).

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.

Thank God for the Re-Election of President George Walker Bush.

PS: Remember my mock report of the imposition of Curia on the Untied States? Well, the Kos Kids aren’t joking.

The United States, the united States, and 300 Million Americans

In two posts, “Nine and Ten” and “MA v. EPA: To Be or Not to Be Soveriegn,” Curtis tackles the question of state sovereignty.

For background: in a recent case, the the Supreme Court (happily but obviously politically) rediscovered the sovereign state right of Parens Patriae. In the case, the Supreme Court acknowledged that States have sovereign rights but that they do not have the power to pursue those rights. Therefore, the federal bench must be especially sensitive to state concerns.

The points that Curtis ,makes on his blog echo those of ,Alexander Chisholm, Executors v. Georgia (1793), a SCOTUS case from when Washington was President. (Indeed, it is so old that there was not even “majority opinions” yet!) The controversy has been irrelevent since Amendment XI was ratified in 1798, but it is important in this discussion for what the Justices thought of the sovereignty of states.

Selected quotations are below the fold, but if I may summarize the justices

  • Chief Justice Jay: State sovereignty exists regardless of whether a state may be sued or not
  • Justice Blair: State sovereignty is forfeited to the extent that the Federal government gained sovereignty
  • Justice Wilson: Individual bind their sovereignty to the government, as states bind their sovereignty to the federal government
  • Justice Cushing: Questions of sovereignty are philosophical and irrelevant.
  • Justice Irdell: States are sovereign to the respect that the United States is not.

In other words, I think Curtis sums it up well when he writes:

Individuals are sovereign + States are sovereign + the Federal Government is sovereign… Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign

Well said!


Chief Justice John Jay:

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former…

It is plain then that a State may be sued, and hence it plainly follows that suability and State sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court.

Concurring, Justice Blair:

And if a State may be brought before this Court as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed, there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court, and if sovereignty be an exemption from suit in any other than the sovereign’s own courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

Concurring, Justice Wilson:

The only reason, I believe, why a free man is bound by human laws is that he binds himself. Upon the same principles upon which he becomes bound by the laws, he becomes amenable to the courts of justice which are formed and authorised by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise?

Concurring, Justice Cushing:

But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?

Dissenting, Justice Irdell:

Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them. Of course, the part not surrendered must remain as it did before.

Crystal Gail Mangum and Mike Nifong

Last year, for the second time in her life, Crystal Gail Mangum claimed to have been raped by three men. For the second time, there was no trial. But for the first time, media attention encouraged the North Caroline Attorney-General Roy Cooper to say the word: “innocent.”


Inmate Intake: MANGUM, CRYSTAL GAIL

Ms Mangum’s false accusation was horribly compounded by the gross incompetence, negligence, and capricious maliciousness of Durham North Carolina prosecutor, Mike Nifong. My fellow college students — indeed, all Americans — hope that the surest measures are taken against Mike Nifong so that justice may be served.

Hopefully, Jesse Jackson, who said that “his organization will pay the Duke scandal accuser’s tuition regardless of whether she’s telling the truth or not,” will doubtless comment soon.

Parens Patriae

I’m more sanguine about Massachusetts v. EPA (the “global warming case”) than Ed Whelan. While the court’s four liberal justices got the result they wanted (pushing the EPA closer to regulating CO2 emissions), they had to dig pretty deep into paleoconservatism for a justification how to do it. To get states-righters Anthony Kennedy’s fifth and decisive vote, the court resurrected a rather hard-edged “Father of the People” interpretation of Amendment X.

In the case, the Court decided that because States are the Fathers of their People, but are unable to resort to armed invasion to protect their people, their pleas must be listened to more readily by the Court than if the States were just land-owning persons or societies.

Amendment X, the states rights amendment, maintains the United States as an open society. It allows the sort of local experimentation and resilient networking that makes the United States an exceptionally agile country.

Amendment X is also despised by tyrants of all stripes. Both Leftist and Rightist factions happily trample on the freedom of states and citizens in order to push their through own agendas . That the court’s liberals are now retreating to Amendment X to defend their agendas is a good sign for freedom, liberty, and decentralized government.

The Individual Right to Bear Arms

Lively, T. & Taylor, D. (2007). Court strikes down D.C. ban on guns. Washington Times, 10 March 2007, http://washingtontimes.com/metro/20070309-102401-2730r.htm.

Order matters.

The Articles of the Constitution are in a logical order, with the center of government (the Congress) coming in Article I, the servant of the government (the Presidency) described in Article II, and the interpretor of the government (the Supreme Court) outlined in Article III. The remaining four original articles, IV, VI, VI, and VII, are essentially housekeeping, outlining how the union should function given the three branches previously described.

The Bill of Rights are outlined the same way. The critical rights of expression — starting with the preemption of a Church of the United States, prohibiting prohibitions on worship, and making its way to freedom of speech, press, assembly and petition — come at the beginning, while rules of how to read the Constitution (Amendments IX and X) come at the end.

The second-most important amendment of the Bill of Rights, which protects the right of the people to possess guns, reads as follows:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed.

And means that there is an individual-right to possess weapons. As the D.C. Court of Appeals ruled:

A federal appeals court yesterday struck down the District’s 30-year-old gun ban, ruling that the right to bear arms as guaranteed in the Second Amendment applies to individuals and not only to militias.

The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well,” the 58-page ruling said.

Alan Gura, an attorney for the plaintiffs, called the ruling a “tremendous victory for the civil rights of all Americans.”

One of the upsides of this freedom – taken from Columbians by the local government and restored by the federal — is that crime will drop. The expected force difference between a 300 pound man and a 100 pound woman, say, is now negligible. Both can pull a trigger.

Thank you, D.C. Court of Appeals.

Sexual Predator Faces Prison

Ex-wife who made false rape claims faces prison,” by Richard Savill, Telegraph, 30 September 2006, http://www.telegraph.co.uk/news/main.jhtml;jsessionid=QQCRTELZSKFN1QFIQMGSFGGAVCBQWIV0?xml=/news/2006/09/30/nrape30.xml (from Mangan’s).

A woman who falsely cried rape against her former husband was facing jail yesterday after being convicted of perverting the course of justice.

The judge told Henderson she had “forced the two men to appear in a public court, face complete strangers and give evidence and be cross-examined about painful, embarrassing and intimate details”.

Mr Cooke told the court: “It was quite shocking to have three or four police officers arrest you, manhandle you and take you away for something you’ve never done.”

Adjourning sentence for reports, the judge warned Henderson, the mother of a daughter of 16 and a 20-year-old son, a soldier, that she could face a lengthy jail term.

Meanwhile, Elisabet Sunde, a European sexual predator who victimized in America, remains free…