Category Archives: Law

Right, Dangerous, and Chaotic

Juda-Maccabaeus

The lessons we should learn from all
the fighting in the Days of Old
when Providence bestowed Divine,
the Sanctuary purified:

“Let the let encircle all you hold
and don’t uproot the olive grove.”

So now Jerusalem, you know it’s not right
After all you’ve been through, you should know better than
To become the wicked ones
Almighty God once saved you from.”

– Mirah Yom Tov Zeitlyn, “Jersualem“

It is wrong to use violence against people who are living peacefully. Sometimes we have to, because we don’t know ways to solve our problems that don’t involve being violent to peaceful people, but that assault remains wrong.

Likewise, it is dangerous to take actions that have unknowable costs. Sometimes we do so anyway, because the alternative is so wrong or is itself dangerous, but those excuses do not erase the danger that we introduce.

Finally, it is chaotic to introduce changes against the wishes of a democratic majority. This is does not mean doing so is necessarily wrong or dangerous, but it randomizes the purpose of elections (which are to allow the people to fire officials who they find unbearable), generates annoying social movements, and distracts the broader society from the more important goals of economic growth.

In Washington State, where I live, the people directly voted on, and approved, laws to legalize both marijuana and gay marriages. These are certainly dangerous (and gay marriage more so, as for most of American history marijuana was legal). But banning the right to contract in both cases is certainly wrong. Fortunately, Washington State’s legalization of both forms of contract was orderly, without judicial fiat or even legislatorial arrogant bullying the process.

In California, on the other hand, unelected judges took the dangerous and chaotic path of legalizing gay marriage (but not marijuana) by fiat. One wrong was undone — the one that was the most dangerous — but in a chaotic way.

This case is now before the Supreme Court. The nearest analogy I can think of is Roe v. Wade, which likewise was a dangerous and chaotic method of abolishing a wrong (violent persecution of post-conception birth control). Of course, Roe v. Wade also legalized another wrong, infanticide, so it is unlikely that the dangerous chaos ensuing from even a reckless ruling on the California gay marriage case will be as bad as what was caused by the Roe v. Wade decision.

Men and the Rule of Law

Article III, Section 1 of the U.S. Constitution reads:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

This language is parallel to Article I Section 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

And Article II Section 1 Clause 1

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Articles IV, V, and VI do not “vest” “power,” so since the period of John Marshall these parts of the Constitution have been interpreted as create a Triune Government. Under this interpretation, the US has one government with three co-equal branches”: the Legislative (established by Article I), the Executive (established by Article II), and the Judicial (established by Article III).

There are multiple interpretations of how this works in practice:

Deng Xiaoping, the former paramount leader of China, believed that the U.S “has not one government, but three.”

A Marxist, who believes the government is the “execuive committe of the bourgeoisie,” would conclude that the American bourgeois have three executive committees, a structure intended to make the government less efficient

A victim of the American public school system probably belives the Legislature tries to write popular laws, the Executive tries to faithfully executive them, and the Judicial tries to faithfully interpret them.

There is some truth in all of these ideas, but all of them ignore the practical considerations of power and responsibility.

Important actors in all three branches must balance their priority sets with their limited resources, in a dynamic environment where others are trying to do the same. Actors who become sympathetic to their branches will try to aggrandize their branches, and protect them from delegitimization.

Regardless of one’s position regarding today’s ruling regrading health care reform, commentators on the left and right noted the heavy pressures the Chief Justice was under regarding these forces. Generally, commentators on the right complained about the Executive “pressuring” the Judicial (to threaten to delegitimize that branch), while commentators on the radical left spoke of “information operations” to defend the Judicial from delegitimization.

We tell children, the trainable retarded, and people we wish to lie to that we have a “rule of law, not of men” in this country. Sometimes, if we’re not paying attention, we even believe such blather.

Rather, we have are a rule of men, who have priorities with respect to laws, who are empowered and constrained by laws. This is the same thing as saying we have a rule of law, which are written and used by men, to empower and constrain men.

Daily Kos dumps Research 2000 / Research 2000 sues FiveThirtyEight

The story is developing fast

Research 2000 is a left-leaning polling firm that has been contracted by Daily Kos over the past few years. Typically, the Research 2000 / Daily Kos polls are the only ones that show “good” news for President Obama.

Here is R2K’s attempt to silence FiveThirtyEight:

Nate Silver Letter re: Daily Kos (6-29-2010)

Major Props to the folks at Daily Kos for acting quickly on this.

Thug Police

Via Slashdot, a really spooky story about a cover-up by the Seattle Police Department

Eric Rachner, a Seattle cyber security expert and one of the golf players, wasn’t satisfied when the city dismissed charges against him after a possibly illegal arrest for refusing to provide identification.

Rachner discovered through sleuthing that police had withheld video-recorded evidence in his case.

Rachner also hired Seattle attorney Cleveland Stockmeyer to look at his case and probably others where arrests might have been illegal or where police claimed to have destroyed valuable arrest videos that weren’t, in fact, erased.

“How many people are sitting in jail who asked for their tapes and were told no, they can’t have them,” says Stockmeyer. “I don’t know. But I tell you we’re going to freaking find out.”

Thank goodness there are heroes like Eric Rachner to stand up to the Officer Crowleys of the world.

Inside Evony

Ars Technica has a great right up on Evony, who you probably know for their annoying ads…

In response, Evony LLC filed suit against Everiss last September in New South Wales, Australia. Since Bruce lives in England and Evony LLC is officially based out Delaware, this legal logic has more than a few people scratching their heads; one of the biggest points of confusion about this suit’s legitimacy stems from the fact that Evony LLC was established as a Delaware company (which can easily be done by anyone as long as they’re willing to pay $99 plus some state fees) a week after Everiss was threatened with legal action over the content of his posts.

Reading the claim against Everiss is more than a little surreal. Aside from denying any association with WoWMine or the Microsoft lawsuit, the document states that Evony LLC is the owner of Evony, and that the company is not based out of China. However, there’s a method to the plaintiff’s seeming madness: Australia is pretty hospitable to “the defamation tourist.”

It gets even better. Read the story of the advertisements, or their intellectual property fraud.

A Question for Joseph Stack

Apparently, Joseph Stack flew his plane into an IRS building, out of concern that the Treasury Department was stealing from the middle class.

If Mr. Stack thought the right bomb, in the right place, at the right time could change the policies of the Treasury Department, why didn’t he fly that bomb into Mr. Geithner’s office?

Perhaps he hoped enough paperwork would be destroyed by attacking the bureaucracy that others would be sympathetic to future attacks on the Treasury Department?

Certainly a small-scale attack on the IRS bureaucracy will not lead to any change in policies in the way a successful attack against the Treasury Secretary would. However, it would be interesting if CNN or other news outlets follows up on this in one year, and reports the number of businesses that were not audited because of this act of terror.

Corporate Free Speech is a Fundamental Human Right

Today, in the greatest victory for Free Speech in a century, the Supreme Court ruled that Corporations (for-profit and non-profit, owned by shareholders as well as controlled by union members) are free to exercise political speech

From the Volokh Conspiracy:

This rhetorical tactic is most often used by liberals and leftists to criticize rights advocated by conservatives and libertarians. However, it’s important to understand that the same ploy can easily be turned on rights favored by the political left. Consider, for instance, the right to use contraceptives upheld by the Supreme Court in Griswold v. Connecticut. Contraceptives, after all, have no rights. They are inanimate physical objects, like any other property. Under the Connecticut law banning their use, women were still free to avoid pregnancy (e.g. — by abstaining from sex, or by using the rhythm method). They just couldn’t use this particular type of property to do it. It’s easy to see that any such critique of Griswold would be specious. After all, contraceptives are just a means that women use to exercise their rights to reproductive choice, albeit a particularly effective one.

The same point applies to corporate speech and property rights. When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.

And in a wonderful coda, the outrageous persecution of pro-family activists in California was cited as a great example why free speech must be protected. Wonderful!

The Circus

Shannon Lov at Chicago Boyz has two posts attacking the upcoming trial of Khalid Sheikh Mohammed, “KSM,” who, according to himself, is the most dangerous terrorist in the history of civilization. The titles, “The Worst Kind of Trial” and “How Obama is Bringing Martial Law to America,” gives you a taste of the tone.

Of course, the trial is a circus. It is designed to be. It is designed to get people to pay attention to it.

Becuase the real objective is the introduction of regular and systematic military trials for terrorists we capture oversees. While the far-right, far-left, and media machine pay attention to the circus, the United States Government grants the military universal jurisdiction for crimes against the United States.

This is a huge deal. It would be controversial if it was talked about. So it won’t be.

Pay attention to the circus instead.