Is Roe Good for Democrats?

Sanford Levinson and Jack Balkin debate whether Democrats should stop fighting for Roe in this week's edition of Debate Club.

Even the Left is Too Far to the Right

MK Avraham Shochat (Labor) is delaying his retirement to prevent the appointment of Ruth Gavison onto the Supreme Court. Apparently, his replacement will be to his right, and will likely support Gavison's nomination.

When I heard the left is opposing Ruth Gavison I was surprised. Gavison was a founding member of ACRI, Israel's version of the ACLU. Her substantive positions are fairly liberal, as one would imagine.

So why the opposition? Aharon Barak, the Chief Justice of Israel's Supreme Court explained that Gavison, who he feels is eminently qualified, has an "agenda." What's he's referring to is Gavison's open opposition to judicial activism.

Amazing. A liberal scholar with positions probably on par with Ruth Bader Ginsburg is being denied a seat on the Supreme Court because she has openly called for a reduction in the Court's unlimited power. Just unbelievable.

Cross-Currents has a good post on this topic.

Bush: Israel's Best Friend Ever?

Months ago, I had an argument with DovBear about whether Bush is a great President for Israel. Obviously such a question sounds a little strange. What does it mean for a US President to be good for another country?

We disagreed on this fundamental point. He argued that a President that makes Israel do what's in its best interests is a President that's good for Israel. This argument struck me as odd. His definition is dependent on the answer to another question, namely what is good for Israel. So under his definition it would be impossible for two people who disagreed on what's in Israel best interests to agree on whether someone is a good President.

I argued that a President who allows the Israeli democratic machine to function is a good President. Israel is a sovereign state, with a democratic government fairly responsive to the people. A foreign leader should not impose his will on the people. So a good President is someone who lets Israel do what it wants, even if he feels those actions are not in its best interests.

This concept does not apply across the board. One could plausibly argue that a good President for Syria would be one that forced Assad out of Lebanon or made him implement human rights reforms. Why? Shouldn't the best President for Syria be the one who gives it a free hand?

No. Syria is not a democracy. The people cannot elect their leaders and so they cannot (directly) influence policy. A good President for Syria is one who gives them that option. If they choose to elect a dictator and support terrorism, that's their choice. We can, of course, use all type of pressure, military included, to force them out. But such actions would make the President a bad President for Syria.

Coming back to the key point: DB supported Clinton because he pushed Barak to make the Camp David and Taba offers. I disagreed precisely because of the pressure he put on Barak. Bush, for the most part, has let Israel do what it wants. That in my eyes makes him a good President for Israel.

Note: I am not saying the President cannot pressure Israel. The US gives Israel all kinds of political, military, and financial support. A President would be well within his rights to make Israel sign a peace agreement. But he would not be a good President for Israel.

Meeting Old Friends

We all have stories about how lost touch with friends from our childhood. Maybe it was because of distance or because we no longer had anything in common. And there's always the story about how we later met up with him and how awkward the moment was. Well, no one tells a story better than Josh. Check it out.

The First (Unpublished) Federal Decision on Abortion

Here's a speech by one of Judge Friendly's clerks, Judge Randolph of the DC Circuit. For the first time he makes public an unpublished opinion (the law was changed so the question was mooted before the decision could be published) by the eminent Judge Friendly. Essentially Friendly responded to the argument that the Constitution protected a right to privacy by pointing out that the theory that people should be allowed to whatever they want in the absence of harm to others (a Millsian concept) is not a constitutional principle and even if it was, the rights of the fetus should be taken into account. Roe, of course, ruled just the opposite.

Even the snippets we have in the speech far exceed the polemics of Roe. Roe is one of the worst decisions of the 20th century, not just because it reached an unconscionable result from a separation of powers perspective, but also because it extended an already contrived constitutional principle to even more absurd grounds without even explaining how the principle properly applies. How does abortion fall within a right of privacy? What about having an abortion is private? The decision? Well, would the action of running around naked in the street fall within this right because the decision to do so was private? And it's not enough that the state has a right to ban nude walking for other reasons. In the absence of those reasons would walking around naked be a private act? I can't imagine anything more public.

Roe led to decisions like Lawrence, which opened the door for all types of judicial intrusions into the domain of the legislature on the ground of protecting "privacy" or "liberty." Goodridge, the decision of the Supreme Judicial Court of Mass. that required the state to recognize same-sex marriage, was only possible because of Roe and its offspring. While liberals complain that Roe must be upheld or society will crumble, I believe it's the duty of the Supreme Court to overturn it, if just because it's a poor decision.

Mr. Miyagi Has Bowed Out for the Last Time

Pat Morita, who was most famous for his role as the dimunitive Mr. Miyagi in The Karate Kid, passed away this morning at the age of 73.

Update: Check out Bill Simmons' tribute to The Karate Kid trilogy.

More on Difficulty in Learning

A commentor made this argument:

Unfortunately I missed the begining of this argument so I was unable to respond to each comment individually. However, I will try to respond to some general arguments that were made as well as lay out my basic argument.

My Basic Argument: (this argument is only valid if you agree with my first statement if you dont there is no purpose of reading my argument and you have hashkafic issues to work out)As a frum jew, we believe the ultimate conclusion decided by teh Gemora is not only the final word but rather it is the emes. It is the truth we seek when learning. Consequently, we dont just take arguments and statements at face value but we analyze them under a microscope (sorry for teh cliche but its late and i cant articulate well at this time of night) to be certain that there is flaw or loop in the conclusion. Every decision has to be 100% correct. (This is also the reason why there are so many machlokasot in the Gemora. Naturally people will continue to argue if they are seeking to attain the proper meaning i.e. the truth) In contrast the american legal system is sadly a craps-shoot. As a Justice Cardozo so eloquentally said (I think it was him)law is decided by what teh judge eats for breakfast. This delineates the weak backbone that our legal system is butressed by. THere is no emes. There is no truth they are trying to attain. Judges just want to decide the case at hand as best as they possibly can while keeping time in the back of theri mind. they dont want to sit on each case for too long. any decision that is rational on its face will suffice.

I illustrate this extreme distinction to make the following point: whenever the conclusion attempting to be reached must be flawless the task to reach the conclusion will be extremely arduous. The thinking has to be deep, sharp, clear, etc. You cannot half-ass an answer when you are seeking truth. On teh other hand, if you only have to reach the most logical conclusion out of several possibilities (not neccessarily a flawless conclusion)your thinking doesnt have to be at its highest level. It need not be flawless. There could be holes in the logic.

Ill sum up my argument to make it clear: when attempting to seek teh truth (as in Gemora) a much more thoruogh analysis is required. Hence the conclusion is harder to reach and usually harder to grasp (at least at first). The reasoning is a fine line. Furthermore, gemora is not totaly finalized; it evolves whith each generation (every jew has their own chalek in learning) so we arent just reading other peoples decisions but we are also formulating arguments (sometimes new arguments) in an attempt to find the truth.

responding to the language barrier argument:The hebrew used by many achronim is much easier than the legalese used by proffessors in law review and other articles. As mentioned before by someone they intentionally write confusingly to show their brilliance.

The basic argument seems to be that searching for the truth is more difficult than deciding between a few different possibilities. This is especially true if the decisor is only looking for any rational decision because his argument need not be flawless.

I disagree for a few reasons. First, I think the commenter overemphasizes the concept of legal realism. Not all judges just randomly decide what decision to make. Judges have to apply legal concepts to the facts at hand. Yes, we sometimes have different reasonable alternatives, but the judge is trying to find the best one.

Second, many judges do look for objective truth. If judges are working to ascertain the original understanding of the Constitution, they are looking for a single idea. Stopping short of that idea would be a violation of their oath to uphold the Constitution. Any judge who does this is looking for objective truth is the same vein as a serious student of the Gemara.

Third, I also fail to see why having reasonable alternatives makes something easier. If a judge is faced with two equally plausible readings of a statute, he has to make a decision. In many cases there is no mechanism to find the correct reading (if such a thing exists). He has reached the end of the process. In Halacha we do the same thing. Sometimes we have equally plausible readings of a Rishon and we have to choose which one makes more sense. We lack the tools to reach the correct interpretation because no one can accurately determine his intent. In both cases we end up going on intutition.

Let's try to parallel Halacha and constitutional interpretation. If the judge is an originalist, he'll be looking for objective truth. The Halachist does the same thing. Both groups analyze the works of earlier scholars. Both groups analyze the text to find new meanings. I don't see why one is easier.

Women and In-Depth Learning

I had another conversation (related to the post below) about women learning Gemara. I contended that, given how women have reached the highest levels in all the other fields, that I see no reason why they couldn't become talmudic scholars. I'm not taking a position on whether they should, just that they could.

Basically his thesis was that men and women think differently. Our minds work differently. Men think more rationally, women think more "artsy" (not sure what he meant by that). Since Gemara is very rational, men can understand it, while women can't.

One of my arguments was that women do just fine in law school. I've met some pretty smart women, and I have no reason to believe if they were given years of proper training in Torah that they could be on the same level as any regular Yeshiva guy. As noted below, he argued that the level of difficulty is very different and that while women can think rationally on the basic level needed for law school, they cannot go beyond the surface and think deeper.

Obviously I disagree. There are some pretty deep rational fields (philosophy for example) where women do just fine. But that wasn't my problem with his argument. If someone wants to say that men and women think differently, fine. If he argues that men are better engineers because their minds work that way, and women better social workers because their brains are wired like that, OK. I might not agree, but I can see the argument.

But to contend that women can think rationally only on a lower level is just a fancier way of saying they are dumb. One key element of intelligence is the ability to think deeply. If women can't do that, they are just not as smart as men. Law school is not easy. In most cases it requires rational thought. To say that women can accomplish that, but can't think on a higher level is just to say they aren't intelligent enough to think on that level. I've seen no evidence of that.

Rav Chaim and Posner

One of the most difficult books I've ever read is Richard Posner's The Problems of Jurisprudence. Maybe I wasn't as familiar with Posner or legal theory at the time, but I read large chucks without having the slightest clue what he was talking about.

On another note, I was arguing with a friend today about whether shuir (classes we had in Yeshiva) was more difficult than law school. At the end we both agreed that law school is conceptually easier than the more difficult shuirs.

The point of disagreement was whether shuir is more difficult than high level legal theory. Law school is for the most part basic legal thought. It's like the basic shuirs we had when we started Yeshiva. It takes a while to get the thinking down, but once we have it, the concepts aren't difficult.

So here's the question for anyone who has ever done advanced studies in any field: do you feel that Rav Chaim (or any comparable work) is more difficult conceptually than whatever you are studying? Honestly I never attended a really difficult shuir on a consistent basis, but I have learned the more difficult achronim and I don't see them being more difficult if we remove the language barrier and we are able to work through the unclear language.

So what does everyone think?

Get Your Mind Out of the Gutter

A friend called today to tell me about how he had to make a doctor's appointment. Beforehand he spoke to the secretary to give over his insurance information. Here's the conversation:

"What's your insurance number?"

"A3V...."

"Wait, what was after the 3?"

"V as in Venus"

"You mean P?"

They both had a good laugh.

Political Shakeup in Israel

With Sharon leaving Likud, yet another Israeli government will end before its time. In fact only one government has ever completed its four year term, the first Begin government (1977-1981).

What do new elections portend for Israel? Well, the system is broken that's for sure. It lacks stability and grants too much power to minority parties. The US' winner-takes-all system is better suited to deal with diverse populations because it forces the politicians to compromise on key issues.

How will the new Sharon party do? Well it seems. Sharon is the most popular politician Israel has seen in years (maybe decades). He accomplished the impossible, getting out of Gaza, despite the internal pressure in his own party. Sharon is an excellent politician who has moved to the center in his old age. With Peretz heading Labor and Bibi probably running the Likud, the two traditional parties will move farther to the extremes and the void in the center will belong to Sharon. Shinui, which used to occupy the center (or purported to), will be relegated to the margins, as only the strict anti-establishment and anti-religious will vote for them.

I have a feeling that with Sharon's name, the parties' centrist positions, the extremism of the large parties, and the big names, Sharon's party will win big in March. Personally I hope they adopt Bibi's economic free market policies, which can only help the country. But either way this is a victory for Sharon.

Put a Space in your URLs Please

I'm kind of busy today, but I want to pass on something I read on Volokh.

Here are some domain names that might be getting the wrong message across:

whorepresents.com, expertsexchange.com, penisland.net, therapistfinder.com, and molestationnursery.com.

Seriously, who came up with these names? Did he not notice what the name looked like when he typed it in? Did he not care?

The Bounds of Historical Inquiry in Schools

Wow, that's a boring title. I guess this post is going to be about that somewhat, but it isn't going to be a treatise.

The Massachusetts Department of Education requires that all its schools teach about the Armenian Genocide. What's that you ask? Walk through the Old City of Jerusalem and you'll see the posters all over. It is alleged that during WWI, the Turks embarked on a campaign of extermination against the Armenians, and over one million died.

To date there is a still a dispute over whether those deaths were a result of genocide, with the minority taking the view that they weren't. But the Massachusetts Department of Education does not allow the minority view to be taught in its schools.

So a teacher and high school student decided to bring a suit against the school system on the grounds that such a restriction violates their free speech rights. I'm no scholar but I must have missed the part of Constitution which guarantees teachers the right to teach what they see fit. There are some bounds I'm sure.

But here's the point of the post: Let's say a teacher wanted to teach Holocaust denial. Let's say he passed out the screeds of Zundel or Irving. Could the school stop him? Does they have that right?

I would say yes. Volokh was correct that we should not bar the voicing of opinions that are contrary to our understanding of historical events, even if the case of the Holocaust (at least in the US). But I believe the school system has a right to decide what can be taught in its schools. It's not a free speech right because the government is not stopping the teacher from espousing the views, but only preventing him from doing it in the classroom. I'm sure this issue is more complicated than I make it seem, so let's move on.

When should minority opinions be taught? I would assume most sensible people would have a problem with Holocaust denial or the works of David Duke on slavery. But we can't proscribe every minority opinion. I would draw the line at where the opinion is espoused by a respected person. In the case of history that would mean someone with the requisite training (a Ph.D. if he's really in the minority) and respect within his community. A recognized historian like Raul Hilberg can argue that less than 5 million Jews died in the Holocaust. A drooling lunatic like David Irving, who speaks at neo-Nazi rallies and can't find a Jewish conspiracy he doesn't like cannot. We don't have the time to research every single opinion and we have to draw the line somewhere between legitimate opinion and insanity.

Who Said It?

"While I understand the dire need to "reign in" todays teenagers and instill clear and uncompromising standards of Tznius, not only with regard to the exact number of inches or centimeters that are permitted but also in regard to the sense and feel of Kol kevuda bas melech, nevertheless, presenting mussar as halachah and chumras as psakim is not the way to do it. That was the mistake of the first woman in history, Chava, when, after touching the aitz hadas, said to herself "I crossed the line already - i touched it and didnt die, so I may as well eat it." The Kli Yakar explains, that Adam added a "siyag" and told Chava that she is not allowed to touch the tee. But Chava did not understand that touchign was just a siyag, and she thought that when she touched, she already "crossed the line" of doing the aveirah, and she didnt die, so she may as well eat."

Bonus points if you can tell me who's he's criticizing.

Shabbos in the Village

No, no, this post is not going to be some post about how I met some transgendered naked he/she on my way home from shul, although it could be about that (and maybe should). It's going to be about my first Shabbos in my apartment.

Wow, it's too bad blogging on Shabbos is not allowed. This post would have been a lot more fun and a lot more bitter if it was written last night.

My roommate and I decided to stay in our apartment, located in the fine East Village, for Shabbos. He had done it before, so I figured everything would work out fine.

It didn't, although in the long run everything turned out OK.

My roommates uncle is a caterer and he sent us some ready made meals, like brisket, stuffed cabbage, meatballs, etc. So we were good for Friday night. We decided not to make chulent for Shabbos day, going with cold cuts and salad (which was a good choice). I wasn't so happy, but I'm not exactly culinarily- inclined and my roommate wasn't going to do it, so I decided to make the best of it.

Candle lighting in NY was 4:17, which put sundown at 4:35. We were going to have meatballs and brisket, and the meatballs were in the fridge so we knew we could warm it up quicker. At about 3:45 I realized no one took the brisket out of freezer yet. OK, so we had 45 minutes to defrost and warm up ice cold brisket. We quickly took the brisket and meatballs out and dumped it into our nonkosher oven (double wrapped of course, which makes warming it up take even longer).

Here was our problem. Our oven is about 800 years old, with one of those gas lines that never shuts off. We figured leaving on the oven for the entire day might not be such a good move. So we only had 45 minutes to warm up our food or we were only eating challah.

My roommate then realized we have a crock-pot. So why not put the food into the crockpot as a warmer? Great idea! So at 4:20 (brisket still ice cold) we plugged in the crockpot and put our food in. Then we noticed that the pot smelled like burning rubber. Which is a problem when we're living in a rent controlled apartment and not really supposed to be here (well, that's not totally true, but I'll explain another time). So setting off the fire alarm could be a really bad idea. So we had a dilemma: eat cold food or take a chance with the burning crock-pot? Screw it, we said (maybe I said), we want warm food! So we left it in.

At that point we had to daven mincha because sundown was right around the corner. Of course since neither of us davens here, we weren't sure which way to face. We spent the next 5 minutes trying to figure that out, but we both have a horrible sense of direction so we gave up and just faced whatever direction made the most sense.

We started davening and about 1 minute in my roommate let out a moan. What happened? I realized it too. We never made a Shabbos belt. There's no eruv in the village and no eruv hatziros in the building (or so we thought). So we couldn't carry out keys outside the building or even outside our apartment. So we couldn't lock our door.

We decided we'd leave the door open and go to daven. So we had three problems. We couldn't lock our door. We might have no food for the night. And our crockpot might catch on fire. Ah, good times. Oh, and we had no way back into the building. When we got to shul, there were only three people. So we left the building, taking those risks, to not even daven with a minyan.

Basically the rest of Shabbos went well, except I turned off the bathroom light (making going to the bathroom so much more fun!) and my roommate left his fan off so the lunatics yelling outside made sleeping more difficult (for him, I sleep like a rock).

Well that's it.

Isiah Thomas is a Bad GM

Bill Simmons, aka the Sports Guy, verbalizes what every Knick fan has been thinking about Isiah Thomas' moves over the last two years. What the hell is he thinking?

Here's some choice quotes:

"He has two overpaid centers who can't rebound or block shots: Eddy Curry and Jerome James. Amazingly, the James Era is already over -- Brown is routinely DNP-ing him. There wasn't even a honeymoon period with this one, just straight to the divorce. Unprecedented. Meanwhile, Curry has a mysterious heart problem that scared the Bulls enough that they practically gave him away. Good times all around."

"[Isiah] added three killer contracts for guys who played the exact same position (Rose, Jerome Williams and Maurice Taylor)."

"[Isiah] gave away his only center last February (Nazr Mohammed), then spent $30 million last summer on someone who was infinitely worse (James). "

"[Isiah] spent $55 million on a shoot-first point guard (Crawford) when he already had one, then traded for another shoot-first guard (Richardson) one year later."

Read the whole thing.

Interesting Discussion on Originalism

Over at theUniversity of Chicago Law Blog there's a debate raging in the comments of a Cass Sunstein post over interpretation and originalism. Check it out.

Preferential Treatment in Lakewood

Here's a pretty harsh article by the chairman of the Lakewood Improvement Association. He makes some interesting points. He's right about how the community has completely segregated itself and wants to have no contact with the outside world. It's true, for the most part, that the only contact they have with non-Jews is when the latter does menial work. It's true the schools are exclusive. It's true the community has political power that they sometimes can exercise to get what they want (although the Jewish community would tell you the police is out to get them). It's true that Jews are going to go all out to buy from a fellow Jew, even at a higher price. And it's true that some people in the community have no qualms cheating the government out of tax dollars.

But some of the complaints are way over the top. He's complaining that the prices of the houses are going up? People really are upset that they can sell their house for three times what they bought it? Here's an example that stinks a little too much of anti-Semitism:

"By allowing this to continue, by 2010 the demographics will have shifted so greatly that what once was a racially and socially diverse community will be a predominantly Orthodox Jewish community."

No one is stopping non-Jews from moving in. It's just that Jews are willing to pay the high prices for houses. Jews are willing to overpay for businesses. What's wrong with the market working itself out? Why can't Jews move together? Must every community be diverse?

Our children are affected due to the private schools that exclude the rest of the children within the community.

I don't get it. Private schools are private. They don't have to let everyone in. No one is stopping the non-Jews from starting their own schools.

they have lived here for any substantial amount of time, they know that businesses are being bought. People are offered money to move out of their homes.

How terrible! People are actually offering other people money for their houses? We have to find a way to stop this.

Hotels, motels and restaurants that were once community-owned and community-cherished are now solely the property of the Orthodox community to do with as they please.

Are non-Jews denied a room at these motels or a table at these restaurants?

Overall, he makes some good points. It's correct, certainly from his perspective, to bemoan the lack of cohesiveness in the community. It's OK for him to criticize illicit uses of political power. But it seems like he has a problem with the community becoming excessively Jewish. What exactly is his solution? Stop letting Jews by houses? Kick Jews out? I fail to see where this is going.

Update: Forgot about the best part:

"...and that they don't defile their sick with the blood of our sick."

I think LkwdGuy says it best:

"Exactly. Except before Pesach when we use your blood for our matzah."

Volokh on Holocaust Denial

Volokh makes an interesting argument against Holocaust denial laws. His basic thought is that banning academic opinions is counterproductive because we know what is fact from academic research and debate and when one side of the argument is closed off, we cannot be sure if the prevailing opinion is truly correct. That's certainly a pragmatic way of looking at protections of free speech.

Wow Law School Can Be Hard

Look at the time of this post. Normally I'd be in school, but not working. Tonight I'm actually doing work, and that's after writing eight pages of my note (article for my journal) during the 7 hours of class I had today. Now I have to do some serious research on the Full Faith and Credit Clause of the Constitution and figure out whether the Defense of Marriage Act violates the requirement of comity between states. Yeah, don't worry if none of that makes sense to you, it doesn't make sense to me either.

With the semester winding down I have tons of work to do for my classes, especially since I haven't been taking them all that seriously. Now I have to catch up. G-d I feel like a 1L all over again.

It's About Time

A new agreement between the Major League Baseball Players Union and the owners finally puts some teeth into the league's steroid policy. The first failed test is a 50 game suspension, the second costs 100 games and the third gets the player banned for life. The penalties this past year were pathetically weak (10 day suspension for first offense), but this set seems just right.

Saudis Lift The Boycott

As per a condition to receive World Trade Organization membership, Saudi Arabia will no longer abide by the Arab League's economic boycott of Israel. Is this evidence that the Saudis finally came to the conclusion that Israel isn't going away? I doubt it, but it shows more and more acceptance of Israel in the Arab world. Israel has trade relations with a few Arab countries, but if it were to begin trade with Saudi Arabia, the holiest Muslim country, that would signify a major improvement in Israel's standing in that part of the world. While this move should have happened decades ago, better late than never I guess.

Number Two for ARod

As predicted, ARod won the MVP, although by a fairly small margin. Two factors probably played prominent roles: he plays defense (well) and his team came in first place. The voters got it right this time, unlike the Colon pick for AL Cy Young.

Why Support the Torture Amendments?

Andrew C. McCarthy argues that we shouldn't. As he puts it, the amendment "is two parts grandstanding and one part suicide." The affirmations against torture are meaningless because torture is already illegal under US law. It is also useless because even though the US has signed and ratified the Convention Against Torture, it did so with the express reservation that the convention not conflict with the fifth, eighth, and fourteenth amendments of the Constitution. Since those amendments have been consistently interpreted to only apply to criminal prosecutions, the CAT, as accepted by our government, does not apply to enemy combatants. The McCain amendment does not change the status quo, though, as it reaffirms our commitment to CAT.

But the change that is relevant is that interrogation techniques "shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." As it stands, the manual forbids any force during interrogation. McCarthy is right that it is foolish to create a broad rule forbidding force (even well short of torture) in all circumstances.

A McCarthy article last year argued that forms of torture should be used in certain circumstances. McCarthy continues to support the idea that the taboo against torture should be reevaluated to fit the reality of the modern day terrorist war, where intelligence is the number one protection against the slaughter of thousands. We must balance our commitment to the protection of human dignity with the need to protect our citizens. Can we just pay lip service to security to ensure no terrorist has to face indignity? I would think not.

I'm not advocating widespread torture and agree with the idea of a torture warrant first proposed by Alan Dershowitz. But anyone who believes that certain methods of physical and psychological coercion should not be used even when the probability of obtaining life saving intelligence is high, should not be running our government.

Is Bush a War Criminal?

Eric Posner deals with the question of whether it's fair that Saddam should be put on trial but not Bush. He goes through the litany of charges that are thrown at Bush, and shows that it's difficult to pin on him war criminal status. But his major focus is not whether Bush is a war criminal, but whether it would make sense for states to try him as one. And to this question he answers no, because many of Bush's wrongs were policies of previous American administrations, not to mention leaders of other (even democratic) countries. Furthermore, trying Saddam can accomplish other worthwhile political goals.

Such is the fate of international criminal law. Because much of the law is based on custom (notwithstanding the ICC), and there's little agreement as to whether a norm has been sufficiently followed to fall into that category, there can be little prosecution in the international realm on international criminal grounds. It's difficult to justify prosecution of war criminals for a violation of international law unless one admits that the trials are just political and are not based on any form of international law.

However, Saddam's trial is in Iraq and is being prosecuted by the people of that country. So we avoid the problem of having the victor punish the loser. If Bush is a war criminal and the US would be trying Saddam, perhaps the claims of unfairness would have some teeth (although Saddam would be a fair greater criminal). But the people he harmed are trying him. The grounds on which he is being tried are the breaches of international human rights, but Saddam never allowed the people to exercise their will by outlawing the methods of murder he utilized. Perhaps as a strictly legal matter, his trial violates due process (if we assume international criminal and human rights law do not really serve any purpose), but as a political and moral matter the people of Iraq trying Saddam is completely just.

A Husband and Wife Both Have Responsibilities

My cousin told me about this article he read in Lakewood (not verbatim):

When a husband and wife are fighting, life must go on. The wife must continue to make her husband's dinner. And the husband, no matter how upset, must eat it....

Afternoon Cartoons in Iran

Check this out. Propaganda at its finest. And they start young too.

(Hat Tip: Amshinover)

Roe v. Wade: The Most Important Decision in History?

With so much emphasis placed on determining Alito's position on Roe, I'm wondering about the status of Roe as a landmark case in constitutional law. Although no one will openly admit it, Roe is used today as a litmus test to see if a nominee's positions are out of the mainstream. There are many other important decisions, so why is Roe so important?

What does Roe represent to the Left? It guaranteed women the right an abortion in early term pregnancies through finding a constitutional right. But I don't think that finding the right by itself explains the Left's infatuation because most Americans are willing to enact laws that would give them the same right.

I believe Roe is a starting point. It is the decision that epitomizes reproductive rights and freedoms; and those freedoms garnered women the ability to control their life. A women who can decide when and where to end a pregnancy is a women who is free to live her life as she sees fit. She can decide to have a family or not to have a family. She can choose career over children. These freedoms are the central element of feminism.

The overarching concern of the Left is equality (not liberty since they conflict). A woman can only be equal if she not only has the same rights, but also the same impediments as men. Men do not have to stop their career if the birth control fails. Only an iron-clad, guaranteed right to abortion can truly equalize women and men in the eyes of the intellectual Left (and by that I mean the people who actually understand that overturning Roe will not end abortion in the US). It is not enough to leave the abortion question to democratic deliberation because there's a chance these freedoms will be constrained.

So in essence a nominee who opposes Roe is a nominee who opposes women's equality.

Rioting in France

Given the riots all over France, I think an earlier post of mine might be apt. It'll be interesting to see how France handles this problem.

Judaism and Strict Constructionism

Richard Silverstein at Tikkun Olam argues that the Halachic system is at odds with strict constructionism. He brings down the famous Talmudic passage in tractate Baba Metzia 59a, where despite divine support for the position of one of the rabbis, the Halacha was decided according to the disagreeing majority. From this story he concludes that strict constructionism and halachic interpretation are inconsistent:

"So to the strict constructionists I say: our body of law has been around a lot longer than yours (constitutional law). And if “the law is according to the majority” (i.e. that the law is decided through contemporary judicial deliberation and not through channeling the Framers) is good enough for the Talmud, you might want to sit and ponder why you’re at odds with one of the world’s great legal traditions."

In a symposium in Commentary Magazine, Alan Dershowitz in essence made the same point (using the same story).

My understanding of the analogy goes like this: G-d had an original intent but we follow the opinions of the later generations, even when it conflicts with that intent. Applied to the Constitution we would say that even if the framers had an intent, we ignore the intent and later generations decide the law. In other words Halacha is a precedent for a living Constitution.

The analogy is flawed, and I believe that his argument also rests on a flawed assumption and a lack of understanding of what strict constructionism means.

First, strict constructionism has nothing to do with framers intent. It's simply another way of referring to textualism (although not all textualists are strict constructionists). Textualism means interpreting the text according to its simple meaning. When the text is unclear, that's when textualism ends and another interpretive method must be employed. Many judicial conservatives will supplement textualism with originalism, which deals with framers' understanding (not intent) but the two need not go hand in hand. Hugo Black was a textualist, but was not an originalist. People too often confuse these terms.

Second, he assumes that since G-d decided the question one way and the majority decided the question differently, that they are ignoring his intent. But originalism is not about pretending we are James Madison. The task is to determine how the principles were understood and apply those principles to the facts today. Madison might have done it one way, but we can apply them differently and still be originalists. So the Rabbis could have been basing their decision on G-d's intent, but just disagreeing with how to apply his intended principles.

Lastly, Halacha and constitutional law are very different in nature. One of the most common criticisms of originalism is that it makes the law too rigid. An originalist interpretation of the Commerce Clause would make much of federal law and all administrative agencies unconstitutional. Clearly our society cannot survive that way.

But the founders were prescient enough to provide us with a tool to change the Constitution if it's arcane: The Article V Amendment power. If the Commerce clause, interpreted according to its original understanding, is insufficiently broad enough for a federal government in modern society, the Constitution can be amended to give Congress that power.

Halacha has no such process. All Halachic decisions are judicial and cannot be overridden democratically or through amendment. So Halacha requires flexibility and broad interpretation to avoid becoming irrelevant. Therefore a different mode of interpretation must be employed. The systems are sufficiently different to make any such comparisons moot.

Alito is Not O'Connor? Who Would Have Thought?

The People For the American Way just issued a new press release pointing out that Alito is to the right of O'Connor on some issues. They list a few cases where Alito's decision would have left in place a more conservative statute, which somehow implies that Alito is more right-wing.

Here's a choice quote:

"Alito’s confirmation to the Supreme Court would unquestionably shift the Court far to the right, to the detriment of all Americans. "

All Americans? Uh, why would shifting the Court to the far-right (which Alito's confirmation will not do as Jack Balkin correctly argues) hurt all Americans? Don't some Americans have far-right positions?

Who writes this tripe?

Halacha and Transfer

There's a debate raging (ok maybe not raging) on DovBear's blog about Halacha (Jewish law) and transfer. For the politically uninformed transfer is a euphemism for removing the Arab population from Israel and the West Bank; in other words, ethnic cleansing.

What exactly does Halacha mandate regarding transfer? Well, to start transfer is a state issue, not an individual question. What's the difference? Let's say Halacha prohibits the permanent sale of land in Israel to non-Jews. This Halacha will apply in two different situations. First, any individual who follows Halacha would be obligated to discriminate against non-Jews and not sell him the land. That much is probably clear.

However, should the State of Israel pass a law outlawing such sales? That's a different question and one I would answer in the negative. It's the same by Shabbos (Sabbath). Every individual Jew must follow the laws of Shabbos. But I do not believe the government should mandate Shabbos observance.

Transfer is a public question. Expelling every non-Jew who denies our right to the land (and doesn't follow the sheva mitzvos b'nei Noach/Noachide code) is a policy only the state can carry out. So the age old question of whether the government should apply Halacha is relevant here. I believe it shouldn't because forcing Halacha on an unwilling populace is counterproductive and would decrease observance.

Besides for the question of whether the public policy of the State of Israel should be guided by Halacha, there's also an issue of the relevance of the question in the first place. Halacha, like all systems of law, apply legal norms to fact situations. The applier is someone fluent in law and with good judgment and a proper understanding of the factual circumstances. If the applier is missing the facts, he cannot give a decision, because the facts are integral.

The transfer question is, as legal terminology would put it, not ripe. The State of Israel is not going to take upon itself the strictures of Halacha any time soon. So all we have right now all hypothetical predications about the ramifications of transfer. These ramifications are facts relevant to the decisions. So any legal decisor who issues a ruling without these facts is giving an incomplete decision and one that isn't binding.

A supporter of transfer might argue that the Halacha has already been decided because the Rishonim (early legal scholars whose opinions carry great weight) are unanimous. I don't think that's true, but that's not relevant anyway. The Rambam (Maimonides) lived over a thousand years ago. His opinion did not take into account many of the factors involved in transfer. This is not a knock on him, but just the reality. Every legal decision applies only to its facts.

Subsequent scholars or judges apply these decisions, called precedents, to new and distinct factual situations. In other words, the Rambam's position will be looked at and weighed if this question ever comes up. So if and when that occurs, then the legal scholars can weigh all the facts and apply all the precedents. But until then, the question is merely academic.

I'm not saying we should ignore the Rambam. G-d forbid. His opinion is a precedent, like the past decisions of the Supreme Court. When the Court receives a question it does not just look at the precedent and apply it because the facts of the earlier cases are necessarily different from the facts in the case in front of it. Every case is different.