Saturday, September 24, 2005

Enemy Combatants

The Bill of Rights is still good law

Jose Padilla remains classified as an enemy combatant, in custody in a naval brig in South Carolina. To hear some of the analysts and amicus curiae, it may seem that the same fate hangs over every law-abiding American citizen, just as in George Orwell's 1984. George W. Bush stars as Little Brother. It may be true that the president, the brains of his operation (Dick Cheney) and the court fool (Donald Rumsfeld) aspire to hold such power. But so far, the federal courts have not conceded it to them. It is the specific details known about Jose Padilla that makes him, in particular, an enemy combatant.

There is probably nobody in the United States (with the exception of potential sleeper cells working for al Qaeda) who would want Padilla walking the streets a free man. But there has been a lot of debate over whether he should be tried in the criminal courts, or kept in military custody by order of the president. For now, the United States Court of Appeals for the Fourth Circuit has ruled that the president has the authority to treat Padilla as an enemy combatant. Padilla v. Hanft .

The big worry about this case is, how much power does a president really have to detain U.S. citizens arrested on U.S. soil as "enemy combatants" and hold them indefinitely without trial? Can the president decree that anyone he wants to put away is "an enemy combatant" and therefore deny that person access to the courts, to an attorney, to contact with family? What if the president makes a mistake? Is there no review process for whether a person is rightly classified as an enemy combatant? Are they locked in a nightmare adapted from a Franz Kafka novel?

What if the president tries this against people on a politically-motivated "enemies list"? There have been such lists in American history. Ask Charles Colson – he knows all about the Nixon administration's enemies list. It was only by the grace of God, and the courage of an FBI administrator who turned in the conspirators, that Nixon was obliged to leave office, and Colson went to prison.

But those who are worried about the civil liberties implications can exhale, and inhale again. The meaning of a ruling like this lies in the details, not in the headlines and TV sound bytes. The Fourth Circuit court did find Padilla's enemy combatant status constitutional. But the decision was on narrow and precise grounds. Further, it is clear that any American citizen similarly detained does have the right to go to court to determine whether the president acted properly in classifying an American citizen as an enemy combatant. In the absence of direct collaboration with the military arm of a declared enemy, no citizen may be so designated.

First, the court relied on specific facts. The decision did not rest on anything so nebulous as an indefinite "war on terror." According to the record before the appellate panel, Padilla "took up arms against the United States" in Afghanistan, "was recruited, trained, funded, and equipped by al Qaeda leaders" and returned to the United States with a specific mission to "continue prosecution of the war in the United States by blowing up apartment buildings in this country." Accordingly, the court referred to the World War II era decision, Ex parte Quirin, 317 U.S. 1 (1942). This case concerned a United States citizen, who entered the country with orders from the Nazis to blow up domestic war facilities. Like Padilla, he was captured before he could execute those orders. The Supreme Court allowed a military trial for Haupt, the citizen referred to, because "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war."

IF (and it is a big if considering who is running the executive branch of our government) – IF these specific facts are required by the courts to approve classification of American citizens, arrested on American soil, as enemy combatants, then this decision is not the end of the Bill of Rights. The courts have not, as yet, accepted the notion that any citizen, arrested on any theory of law or evidence, in any American city, may be declared an "enemy combatant" at the whim of the president. The sole purpose cannot be simply to avoid the inconvenience of a criminal trial, a legal defense, and a burden of proof.

This hopeful reading of the decision is fortified by the panel's discussion of a civil-war era case, Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Supreme court ruled that Milligan could not be subjected to military trial for his activity as part of an anti-union secret society, since his crimes had no connection to the Confederate army. "No usage of war could sanction a military trial... for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . ."). If Milligan remains good law, and the Fourth Circuit court decision accepts that it is, then only those associated with the armed forces of a declared enemy, with which the United States is at war, can be classified as enemy combatants.

It is common knowledge that the Confederate States of America were an illegal armed conspiracy against the United States, which raised an army to futher its subversive purposes. (There were at least as many citizens in the confederate states, who remained loyal to the United States of America, as there were citizens in states that never joined the Confederacy, who nonetheless sympathized with the rebellion). The CSA was a far more serious threat than al Qaeda has ever been. Milligan was subject to criminal trial in a civilian court for covert activities in support of the Confederacy. Because he was not carrying out military missions, in cooperation with the CSA's military forces, he was not subect to military trial. In modern terms, he could not be classified as an enemy combatant – Congress had and has no authority to grant such a power to the president. As the Court in Quirin explained, the Milligan Court’s reasoning had particular reference to the facts before it, namely, that Milligan was not "a part of or associated with the armed forces of the enemy”" The Fourth Circuit panel also examined Ex parte Endo, 323 U.S. 283 (1944), reviewing the detention of a "concededly loyal" citizen, not an enemy combatant. The Supreme Court concluded that detaining Endo was not within the powers of the president or congress, because detention of a concededly loyal citizen bore no relation to the prevention of espionage and sabotage. The Fourth Circuit court observed that Padilla’s detention, by contrast, emphatically does further the purpose "to prevent any future acts of international terrorism against the United States."

Constitutional law, as applied by the federal courts at this time, accepts that an American citizen who has direct contact with an enemy military force, and accepts combat or sabotage assignments from that military, may be detained as an enemy combatant. The president has no authority to designate an American citizen as an "enemy combatant" for any other reason. Anyone so designated has a well-established right to appeal to the courts, to challenge the factual and legal basis for detaining them.

Wednesday, September 21, 2005

Beating the Bushes

...after the hurricane

George W. Bush has a good heart. He doesn't hate anyone. He doesn't callously watch disasters on the horizon and consign thousands of people to death, evacuation, separation, starvation. When he flies into a disaster area and hugs a survivor, he means it sincerely. Unfortunately, the road to hell is paved with good intentions. In the case of George W. Bush, the good intentions are utterly disconnected from the real world. His entire presidency has resembled a child locked overnight in a candy store, or a teen-ager playing with a video game. He hasn't a clue why bad things happen to good people. He has even less clue what he should do about it. But he wants to always look like a man of action, whether he's doing any good for anyone or not.

He has always down-played obstacles and difficulties. That can be a valuable attribute of a commander, but only when the commander has the strategic skill to win, the persistence to make any effort required, never asking anyone to perform any job they would not or could not do themselves. Most of all, a successful commander in the face of daunting obstacles must know that the obstacles are REAL, and know HOW to remove them. That is what justifies confidence. That kind of commander is justified by their success, not by their breezy optimism. Commanders who know the price that must be paid, and pay it, are winners. George W. Bush is a very consistent loser. He never expects to pay any price for any reason.

He was raised on movies, and he appears to honestly believe that a good one-liner is as good as getting the job done. That is why he thought it was OK to put political cronies in charge of FEMA. Real life is not a movie. He promised Iraq would be quick and painless. Now that he has been proven wrong, he talks of making sacrifices and staying the course for a long, hard struggle. Nobody who cheered our initial incursion even thought about a long hard struggle. They cheered because it seemed cheap and easy. Because George W. Bush honestly believed it would be cheap and easy, he made no preparation for obvious military contingencies.

When asked later why he didn't commit the forces necessary to crush the possibility of an insurgency, he whined "I thought they would stand up and fight." He never considered they might run away, to fight another day. That's not how it was in the movies. Veterans return from rotation in reserve units have expressed great frustration with American civilian life. Soldiers are fighting and dying and suffering, but we haven't missed a cup of designer coffee. Our troops are committed to a seemingly endless struggle, but the civilians are deciding which expensive new form of TV to buy this year. That is precisely the war our president promised our civilians, and committed our troops to.

When it came to preparations for Katrina, George W. Bush's entire administration was ready to do everything on the cheap. First, don't pay for preventive measures to strengthen levees and prevent disaster – it is more important to cut taxes. Second, don't pay for preventive measures to strengthen levees and prevent disaster – it is more important to keep fighting in Iraq. Third, be optimistic that the damage from this hurricane won't be too bad – because we don't want to spend money. Fourth, don't rush supplies and trained personnel into the area, because we don't want to spend money.

Millions for spin control, but not one cent for security...

Now that the resulting mess has been thoroughly displayed to the entire population of America, the president did two things right. He admitted that the federal response was unacceptable, and he openly acknowledged that the buck stops at his desk. Then he proceeded to demonstrate the financial acumen that required his daddy's friends to save him from bankruptcy every time he went into any kind of business. We didn't spend $14 billion for flood control between 2000 and 2005. Now we are going to spend over $200 billion for clean-up and restoration. Where will that money come from? The president has no clue, no clue at all. He hasn't given it any thought. He just knows that he must write a blank check in order to restore some credibility to this pathetic administration.

Should we raise taxes? Or rather, should we temporarily roll back some of the tax cuts he put in four years ago, long enough to pay for the recovery? Oh no, those tax cuts were a signature of his administration. They were his biggest pay back to the cabal that turned this incompetent fool into "the front-runner" for the Republican nomination for president. He can't touch the tax cuts. So where will the money come from? "We'll have to cut other programs." Why didn't he mention which programs? Probably because he has no clue where any of the money for any program is going now. Also because he hadn't given any thought to making cuts anywhere to pay for the recovery. Also because any program he might put on the line would ignite loud protests. His real policy, as always, is to do nothing and hope it will somehow all work out in the end.

It gets even worse. When pressed on how to pay for the recovery, the president actually said "We'll have to cut unnecessary spending." A cute phrase. What unnecessary spending would that be? Why has he been spending our money unnecessarily in the first place? Last year, he was cutting money to prepare for natural disasters from the FEMA budget as "unnecessary spending." A fiscally prudent policy would be to spend what is necessary, no more and no less, in good times. In times of disaster, or war, we would of course need to increase taxes temporarily to pay for the urgently necessary additional spending. Or, a fiscally prudent government might set aside reserves for emergencies. George W. Bush has done none of the above. He doesn't believe in reserves. Every time he sees one, he gives it away to his friends. Save for a rainy day? It's always sunny at the Crawford Ranch! He is demonstrating once again that he is not in charge of anything. His evident thinking comes down to What, me worry?

In the meantime, we are mortgaging the credit of the United States of America to the banks of China, Korea, Japan, and anyone else thrifty enough to collect interest on our profligate fiscal policy. Does anyone catch the irony? For years, Republicans have been charging Democrats with "tax and spend." As soon as the Republican Party gets control of the White House and both houses of congress at the same time, they borrow our nation into the biggest annual deficits, the largest national debt, in our entire history. At the end of Bill Clinton's administration, we were on the verge of paying off the national debt for the first time in living memory. George W. Bush has treated the U.S. Treasury like a credit card to be maxed out, with no thought of how to earn the money to repay it.

The administration of George W. Bush did not create Hurricane Katrina. They may actually have turned it from a Category 1 into a Category 5 by ignoring global warming. The data on climate is too complex to ever tell for sure. It would have been a good idea to be cautious, to take preventive measures, rather than laugh it off until the evidence becomes overwhelming. The waters of the Gulf of Mexico were 2-3 degrees above normal last month. That is enough of a difference to fuel a powerful hurricane.

The administration of George W. Bush did create the horrendous aftermath of the hurricane, by every policy it has put into place, or allowed to wither away, in the past five years. Hmmm... that sounds almost Marxist. George W. Bush tried to usher in the withering away of the state... and when we needed our government to come through for us, and lead in a program only a federal-sized government can fully and rapidly handle, it wasn't there.

What are we doing now? FEMA orders truckloads of ice, in order to appear to be doing something right, sends trucks all over the country because FEMA doesn't know where to unload it. The cost for three days of this is running $9000 per truck. FEMA says in the rush to meet needs, it ordered too much ice, and now it is going to store it for future disasters??? Store ICE for future disasters? Then FEMA orders more ice, to be trucked to Louisiana and out to Maryland by way of Georgia. No doubt those responsible will be angrily denounced by the president. But if he were doing his job with any competence, they would have been doing theirs.

Well, they are spending money, and they are making speeches, but they are not doing the hard work we pay them to do. They are not getting our money's worth TO the people who need help. Neither are they sorting out HOW to pay for what everyone agrees we MUST do, if only our government were DOING what we know they must. But their priority is not to help. Their priority is to make themselves look good. They need to be able to talk about what they are doing, or at least how much they are spending. Throwing money at problems? Is this a REPUBLICAN administration?

Was government policy after Katrina racist? Not directly. George W. Bush would not go out of his way to consign people to hell on earth just because they have dark complexions. He really appreciates Condoleeza Rice and Clarence Thomas. He genuinely wants the praise of those black preachers who find homosexuality and abortion more pressing concerns than homelessness and hunger. On the other hand, George W. Bush's administration is completely callous about people who don't have money. (Most of the black preachers singing the praises of Bush DO have money, as well as palatial homes and luxury cars). For many reasons, some of them historical, others more recent, people with dark complexions make up an overwhelming portion of the people in New Orleans who had little or no money, even before the hurricane. The effect is exactly the same as if the administration intended to be racist. But the key is not, play the race card. The key is, FOLLOW THE MONEY.

George W. Bush has never successfully administered a business, he has never accomplished anything in public office worth talking about. He has a gift for gab and a sincere belief that everything is going fine, regardless of the facts. The initial and ongoing response to Hurricane Katrina are just one more symptom. True, the suffering of a million of our fellow citizens should not be used for partisan political advantage. But our suffering fellow citizens are doing to get darn little benefit, for the $200 billion our president plans to spend, if we don't fix the political atmosphere that has gripped Washington for the past five years.

Saturday, September 17, 2005

Constitutional Rights

Keep It Simple Citizen

During senate hearings on his nomination for chief justice of the Supreme Court, a question from Senator Joseph Biden led John Roberts to make a very appropriate reply. He pointed out that federal judges apply the law as it is, not in accordance with campaign promises made in order to solicit support for their confirmation. That is probably not what the pressure groups making the most enthusiastic noise about Roberts's nomination want to hear. They have always sought judges who would keep promises to themselves, rather than apply the law as it is. But it speaks well of Judge Roberts.

Our constitutional rights are sacred, and fundamental to our existence as a nation. These rights would be a lot easier to preserve if we could keep them simple. Judges do not need to wrap them up in complex language. Nor do the federal courts need to paint them in broad sweeping language. American citizens and residents would be much safer with a concise application of the obvious. Oratory may be pleasing to the winning party, but it does not make for good precedent to rely on in future cases. A few examples:

There is no constitutional right to abortion. Nor does the constitution confer a right to commit homosexual acts.

There IS a constitutional right of the people "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Justice Louis Brandeis expounded in 1928 that the Framers of the Constitution "conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

We each have a well-established right to make our own medical decisions, without the government telling us what treatment we should or should not take. That is part of being secure in our persons. There are, of course, "reasonable" searches and seizures of our persons. If, in my natural state, I am inclined to smash the skull of any other person who comes my way, I may be seized, restrained, possibly even medicated, without my consent.

The Supreme Court ruling in Roe v. Wade simply established that during the first trimester of pregnancy, it is not reasonable for the state to seize the person of a pregnant woman, either to require or forbid her to choose abortion. The line of "reasonable" government coercion had to be drawn somewhere. That is where the court drew it. During the second trimester, state regulation is more reasonable. During the third trimester, state intervention, or prohibition, has only one constitutional limit: the state may not REQUIRE a woman whose life is in danger to sacrifice her own life in order to save her baby.

It is no small matter that this right equally forbids the state to require a woman to abort her pregnancy. If it is none of the government's business, it is none of the government's business. Think about that, if you hold any fear that some future paternalistic regime might decree that women deemed unfit must submit to abortion, or that fetuses deemed unfit must be aborted. That would be unconstitutional, wouldn't it?

Constitutional rights are not about what is the right, or best, or most prudent choice. Constitutional rights are about who should hold power to make a decision: the individual, or the state? We all know that either one is capable of making mistakes, and both have done so. We as a people have surrendered certain powers to the state, by written constitutions, and reserved others from the reach of any branch of government. That always arouses the anger of whoever wants to use the power of the state to accomplish some purpose, when the state has no constitutional power to act.

We each have a well-established right to be secure in our homes. In Lawrence v. Texas the Supreme Court ruled that private consenting homosexual acts are not a "reasonable" purpose for the police to enter someone's private home and arrest them. It is true that Justice Kennedy's language was much broader than necessary for this simple purpose. Spare us the oratory and flourishes, a simple statement of where the constitution forbids the state to go, and what is a "reasonable search and seizure" would be sufficient. The state remains free to regulate or prohibit homosexual acts outside the privacy of the home. For that matter, the state remains free to regulate or prohibit heterosexual acts outside the privacy of the home – although probably not in lawfully rented motel rooms. The state remains free to enter a private home to suppress adult sex with a child, whether it is homosexual or heterosexual.

There is no constitutional right to serve as a troop leader in the Boy Scouts

As everyone knows, the Supreme Court rejected the lawsuit claiming such a right. It was filed by an Eagle scout who, after graduating from high school and entering college, joined a gay student organization. The constitutional principle at stake had nothing to do with whether homosexuality is or should be a crime. It had nothing to do with whether homosexuality is sinful. The jurisdiction of the Supreme court turned on one fundamental principle: the right to freedom of association. This right, like many others currently under attack, is not explicitly stated in the federal constitution.

The First Amendment. does say that "Congress shall make no law... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble..." The Supreme Court has ruled for over a century that these rights create a right of the people to associate for any private, peaceful, lawful purpose. Neither the federal government, nor, since adoption of the Fourteenth Amendment, the state governments, may interfere in this right to association.

In the case of Boy Scouts of America v. Dale this meant that the Boy Scouts can set whatever membership standards they choose. The government may not define who is eligible, or create a "right" for an individual to join an organization that rejects them. Why not? Because "the Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people." It is not a commercial organization. It is not a public accomodation. It is a private organization.

In the earlier case of John J. Hurley and South Boston Allied War Veterans Council, v. Irish American Gay, Lesbian And Bisexual Group Of Boston, this same principle of free association meant that organizers of a traditional St. Patrick's Day parade may not be required by the government to include organizations or messages that they do not wish to include. Maybe their decision to exclude a group is wrong, but it is none of the government's business to intervene.

In neither case did the Supreme court take any position on homosexuality. Why not? Because that is not a valid issue under any clause of the constitution. Constitutional rights do not bend and vary according to the viewpoint of the parties appearing in court. A principle is a principle. It applies at all times, in all circumstances. Chief Justice Rehnquist quoted approvingly from a case that struck down criminal penalties for burning the American flag, when he wrote the decision that upheld the right of the Boy Scouts to set their own membership standards. Those who attack certain principles, because they disagree with a specific outcome, should be very cautious. Most of us find that each enduring principle serves some purpose that is very important to us.

As Judge Roberts plainly stated, the law, especially the constitution, does not change because a new justice has been elevated to the court. If the judges could keep the principles simple, it would greatly increase public respect for the court's decisions, and its role in safeguarding our republic. If the media could talk more about principles and less about the feelings of the appellants, that would increase public understanding of what a decision really means for all the rest of us.

Wednesday, September 14, 2005

Offending God with our Intelligent Designs

"Why not try Intelligent Design? What are the scientists afraid of? Can't their theories stand up to the controversy?"

Those questions are being asked at school board hearings all over the country, by the very tiny minority of people who really think it is worth the trouble to bother. (Let's be honest: the majority of American citizens really are not expending energy on either side of this debate.) These questions can be answered with a bit of common sense. Never mind what the scientists are or are not afraid of. There is a plain and simple answer which has nothing to do with science:

Intelligent Design is an utterly blasphemous doctrine. It is an insult to God, and to every monotheistic faith on the face of the earth!

It is particularly demeaning to the Christian faith. We are assured by Paul that it is through Jesus Christ that all the worlds were made. But "intelligent design" obscures this fundamental truth. Unlike their sinister cousins (who espouse that hideous hybrid "creation science") the ID advocates are coy about the name of the designer. And that is a problem. Just who IS this intelligent designer? Are they talking about the intergalactic computer AC, from an Isaac Asimov story? The last line of the story is "Then AC said, 'Let there be light,' and there was light!" Are we going to write textbooks about how this computer set off the Big Bang? I don't think so.

Let's be straight about this. To those who know there is a Creator, that Creator has a name. It is not "the intelligent designer." It is a name so holy that it was hidden in the letters JHWH, pronounced in various ways. It can be indirectly referred to as Adonai, meaning "my Lord," or simply as The God, or to Trinitarians the name of Jesus may be invoked. To traditional Lakota is it Wakan Tanka. In some traditional west African languages it is Chukwa; Chukwa is supreme even to those who pray to intercessors carved in wood. No language or religion in the world adores a skilled watchmaker in a cosmic laboratory with all the latest equipment. That is an occasional theme in science fiction. It is not good science. It is not the fruit of faith.

There are many very improbable measurements in the scientific record. These do suggest that our existence in this universe is not a mere accident. These facts should be taught, routinely, but only the facts. For one example, if the strong nuclear force were about 5% weaker than it is, the isotope of hydrogen known as deuterium would be impossible. That would make a series of other thermonuclear fusions impossible, which would mean no oxygen or carbon would ever have been made. Life as we know it would be impossible. But if this same force were 2% stronger than it actually is, stellar cores would blow up before any oxygen or carbon were made. Besides, only a very special resonance between helium, beryllium and carbon atoms, accounts for the amount of carbon in the universe. However, if the same resonance existed between carbon, helium and oxygen, so much carbon would have been transformed into oxygen that life would still be impossible.

Fortunately for us, all these forces and resonances are set just right. Why are they set just right? As a matter of science, we don't know. Fred Hoyle, a highly skilled astronomer and a convinced atheist, remarked that "a common sense interpretation of the facts suggests that a superintellect has monkeyed with physics." And don't be hard on Hoyle for doubting that God is; without Hoyle's years of research, we wouldn't know these facts about the strong and weak nuclear forces, and the resonance between certain elements in the cores of stars. Believers owe a great debt to Hoyle. But what believers have, that science cannot provide, is a revelation of truths beyond the scope of science.

Let's not be shy about who or what Hoyle's superintellect might be. Let us not demean our holy and awesome God by reducing his august majesty to that of a mere "superintellect." Leave that to the science fiction writers. Further, do not DARE to subject the existence of God to a scientific test. If you have a Ph.D in some branch of science, don't you dare to suggest that your scientific training somehow adds to the certainty that, when God told Moses "I am" – he meant it. Paul wrote "We walk by faith and not by sight." Why are people of faith looking to science to prove what we already know?

There are certain pompous fools who proclaim in the name of science to have proof that there is no God. The names Dawkins and Bozarth come to mind. Their strongest supporters can be found among the theologians of the Southern Baptist Convention. SBC does not deny that God is, and is with us. But SBC theologians agree that science leaves no room for God. Therefore they reject well established science, just as Bozarth and Dawkins reject God. The whole debate is incredibly silly.

C.S. Lewis explained the relationship between prayer, or faith, and events in the natural world, when he wrote the series of columns known as The Screwtape Letters. This book is probably the best exposition of Christianity since the four Gospels. It is certainly the easiest for mere Christians to understand. "If the thing he prays for doesn't happen, then that is one more proof that petitionary prayers don't work; if it does happen, he will, of course, be able to see some of the physical causes which led up to it, and 'therefore it would have happened anyway.' Thus, a granted prayer becomes as good a proof as a denied one that prayers are ineffective." (That was logic from the mouth of a devil, but believers must rise above this logic, not get snared by it.)

Stack up everything science has discovered about the empirics of the universe, the manner in which elements are made in the core of stars, the radiation from the initial burst of light at the first moment of time, the various forms of life and their relation to each other. It all amounts to "some of the physical causes" which resulted from the initial command. A human can look at this evidence and say "it would have happened anyway," or that it "just happened randomly." A human can also look at it and say "this is what we can observe in the natural world, as the result of God's commands creating the heavens and the earth." The question, which of these two perspectives is the truth, cannot be found in science. The science would be exactly the same either way.

We need to keep science classes focused on what science is competent to reveal. Science is not competent to fill in the gaps in our scientific knowledge. Science is only competent to tell us what has been observed by human sight, measured by human hands, detected by instruments of human design. Science classes should not be teaching that there is no God, or that science disproves Genesis, or that we live in a morally neutral universe. For all we materially know, that may be true. But science cannot prove it. Science also cannot prove that God is. The question, if there is a question, lies totally outside the scope of science.

When children have spent Monday through Friday learning astronomy, and then show up at Sunday school spouting "everything began with a big bang," Sunday school teachers merely need to point out that God revealed this to Moses in Genesis 1:3, long before we had telescopes to predict or detect this event. When the kids say "life began in the seas," we must be prepared to show them that God explained this to Moses in Genesis 1:20. If a science teacher told their students that Jonah could not have been swallowed by a whale, because of the screen of baleen at the back of the whale's mouth, anyone familiar with the Bible will point out that Jonah was swallowed by a great fish. God could have chosen, or made, any kind of great fish God chose.

When biology class teaches recent evidence that our ancestors went through a "genetic bottleneck" about 50,000 to 200,00 years ago, any pastor worth their salt can tell those same students "That is probably an empirical trace of being in the garden east of Eden for a long time." But we do not need this sort of exact parallel. We simply need to recognize that science has made a very precise study of the material world, which we can rely on for empirical results and interpretations. God lies before, after, beyond, as well as throughout that universe.

There is no series of experiments to test for the existence of God. God is not a hypothesis. We should step letting well-intentioned educated fools treat God as a matter for scientific investigation. We must be free to talk about the Creator, not an intelligent designer. We should do that in churches, mosques, synagogues, temples, tabernacles, where we can freely NAME the Creator, not by sight, but by faith.

For those who wish to read on this in more depth and detail, click the link on the left side of the screen that says "Biblical Evolution." That is a shamelessly self-serving thing for me to say, since the link leads to a web page about my own book, With God All Things are Possible: A Third Look at Creation.

Saturday, September 10, 2005

Choosing Life: Thanks to Roe v. Wade

Having the right to choose doesn't
tell you which is the right choice.

I love Charles Colson. Not only is he a human being and a child of God (distinctions that he and I share in common with Osama bin Laden, Mother Teresa, and Charles Manson), but his columns are always a great inspiration to read between the lines. Consider his Breaklines piece, "Getting Wise to the Lies: Why Young Women are Choosing Life." It is a wonderful thing to choose life. Colson has identified a very important trend in our national culture, but he has totally missed out on why and how it is happening.

Colson cites surveys which show that "Twelve years ago, 49 percent of all women between age 18 and 29 thought unrestricted abortion should be the law of the land. Today, just 28 percent of young women hold this view." Very few women, or men, have ever favored "unrestricted abortion," but take these statistics at face value: since 1973, women have had the right to choose, and as a result they are choosing life.

Unfortunately, Colson still views everything about abortion through the dark glass of a "war" that has to be "won." To be fair, so do NARAL and Planned Parenthood. These two fanatical viewpoints, each more concerned with "winning the war" than with allowing women to make healthy choices, have fed on each other for at least 20 years. Both fail to recognize that our culture is moving toward greater reverence for life precisely because of Roe v. Wade.

Pro-Choice women have daughters,
and Pro-Life women have abortions

I am old enough to remember when abortion was a criminal offense in most states. Some had begun to loosen their laws – Ronald Reagan signed a bill legalizing first trimester abortions in California. Where there were severe criminal penalties, women went to back alleys for abortions, with clothes hangers and caustic chemicals. That often killed both fetus and mother. The images were just as graphic, and just as horrible, as any photos of aborted fetuses. Oh, and rich women flew to Switzerland, even women who had said they would never have an abortion, even devout churchwomen, even women whose fathers and husbands were demanding everyone else suffer criminal penalties.

However sincere he may be, Colson can't expect to be taken seriously when he says that "since pro-choice women aborted their daughters, those daughters didn’t grow up to advocate for abortion rights." I don't remember the last time I talked to a pro-choice woman who did not have one or more daughters. Most pro-choice women have never had an abortion at all. Most of those I've met were either Roman Catholic or evangelical Protestant. They don't advocate abortion. They support a government of limited powers, one that doesn't reach into every intimate aspect of our lives. In fact, many of the young women who are pro-life are themselves the daughters of pro-choice mothers. Somehow they made it through the birth canal and all the way to 18.

Roe v. Wade never said that abortion is a good, wise or commendable course of action. It simply said, the first trimester of pregnancy is too intimate, too personal, to impose criminal penalties on the woman concerned. The Supreme Court properly interposed itself to remind Congress and the state legislatures that their authority has limits – just as Alexander Hamilton envisioned in The Federalist Papers. The seven justices who made the ruling also were clear that by the third trimester, removing a viable baby from a healthy mother is not an abortion, it is a delivery. If, and only if, the mother's life is in danger, the state may not require her to risk her own life for that of her child. She does, however, have the right to make that choice, and some women have.

Abortion is not a virtue

I am glad to see those who have made a virtue of abortion losing ground. Of course the director of Planned Parenthood finds that the "enthusiasm" is down. Abortion is nothing to be enthusiastic about. It is hazardous, it is often painful. Abortion carries considerable emotional scars, even when a woman is certain it is the right choice. It is the interruption of the natural process for bringing a new life into the world. The more free women are to make their own choice, without the long arm of the law around their neck, the more women are choosing life.

It is only the prospect of women dying, with coat hangers perforating their uteruses, that turns abortion into a "cause" anyone could be enthusiastic about. If our prisons were filling up with women who had abortions, that might whip up some passion also. If women and doctors were being hung from makeshift gallows in front of clinics, 80% of women and 60% of men would demand repeal of all criminal penalties. But they wouldn't all line up to have abortions.

We need to deal with new information on the real harms and hazards of abortion without setting off knee-jerk reflexes. One "side" of this misbegotten "war" immediately cries "so we must overturn Roe v. Wade." The other "side" therefore denounces the new information as untrue. Truth is not the property of political campaigns, to be wielded or denied according to the prejudices of each. We need a political atmosphere that allows the truth to speak for itself. This information, if true, provides sound rational reasons why a woman should choose to carry her pregnancy to term, unless there are compelling reasons to terminate it.

What is a compelling reason? Pastors, doctors, medical ethicists, concerned citizens, have a right to advocate on that point. It is called freedom of speech. The Supreme Court has never exempted speech about the dangers or evils of abortion from First Amendment protection. During the first trimester, the woman who is pregnant, without whom the fetus could not come to term, must be the ultimate arbiter. Like it or not, none of us can take the morning sickness, the pains and labor, on ourselves. God may well have something to say, but He can speak for himself, directly to the woman concerned.

Fund the babies, not lobbying campaigns

Two pre-teen young ladies at my church asked me one Sunday if I would sign a petition to Congress about abortion. It was a spontaneous, hand-written petition, and it wasn't specific as to what Congress should do. I carefully explained that I could not sign it, because the only thing that Congress, or any state legislature, seems able to do about abortion is to adopt criminal penalties, or try to.

In the absence of criminal laws, right to life advocates have to put their time and money where their mouth is. What if all the millions of dollars now going into political campaigns, lobbying, perverted attempts to "swing" the Supreme Court, were put to more effective use? These funds should be available so that women considering abortion can be told

Whatever you need so you can bring this baby to term, we will provide it to you. We know that it takes a village to raise a child, or at least an extended family. Some mothers don't even have a family to provide support. We are willing to BE that village/family for you. Pre-natal care, top quality delivery, diapers, clothes, furniture, food, taking care of the baby one or two days a week so you can get a break... We have the heart, the mind, the time, the funds, the sense of priority, to work through this with you.
Perhaps churches could begin by taking the money many now contribute to political campaigns, and devote the same funds locally to this very purpose. Individual church members might do the same. (This suggestion will make Colson and every "right-to-life" lobbying group howl. When they do, it will certainly be very revealing about their own moral relativism on life, politics, and fundraising.)

Of course it is better if women do not run any risk of pregnancy, until they have established a covenant that will provide a stable, two-parent home to raise the children. We should not compensate for our collective failure to realize that vision, by threatening pregnant women with prison sentences. Likewise, it is very good if a pregnant woman has a supportive husband who is doing his part, concerned parents looking forward to the birth of their grandchild, brothers and sisters who will help, a strong church home, and all the other things that help make raising a child a little easier, and even more of a joy. But if a pregnant woman doesn't have those, it doesn't help much to say "keep it woman, or we'll lock you up."

Remember, the number of abortions performed in the United States was higher during the Reagan and Bush years than the Clinton years, because 1993-2000, more women were more optimistic about being able to deal with having and raising a child. The highest abortion rates in the world are in Latin American nations where the procedure is prohibited by law. Congress can't help resolve this one. Lobbying for new laws isn't going to improve anything. Only people willing to show how much they care, by reaching out to help with the overwhelming responsibilities of bringing a child into the world, can bring the number of abortions down. Women have the right to choose. Reach out to help a troubled woman make the right choice.

Tuesday, September 06, 2005

A Federalist View of the Roberts Nomination

A Federalist View of the Roberts Nomination

As Supreme Court Justice Antonin Scalia has pointed out many times, federal judges are appointed, rather than elected, and have tenure for life, precisely so they can apply the law rather than follow the popular will.

Alexander Hamilton wrote in The Federalist Papers #78 that appointment of judges for lifetime tenure, subject only to good behavior, "is certainly one of the most valuable improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws."

In light of these fundamental foundations of the American republic, it is literally obscene for any interest group or lobbying organization to be running television commercials, or similar publicity campaigns, as to any nomination of any person to serve on the Supreme Court. It is pathetic for interested organizations to issue press releases one day, running over with praise for some memo where the nominee seems to have agreed on their pet issue. It is equally pointless for the same lobbyists to pompously announce that some equally obscure legal brief has motivated them to withdraw their endorsement. Who cares?

The endorsement or objection of anyone but the United States senate is constitutionally irrelevant, and of only the most remote secondary value practically. Mass mailings and self-promoting sound bytes are not a significant influence on the outcome. (Neither are articles like this one). Further, it will be a rare voter who decides whether to re-elect an incumbent senator based on who they did or did not vote to confirm for the United States Supreme Court. Voters have more pressing concerns, that can be more coherently expressed in casting their ballots.

A good rule for Supreme Court nominations would be: No person who has taken a public position that any precedent of the Supreme Court must be retained without change, or must be overturned, is qualified to sit on the court. If nominations and confirmations are all about how a justice will vote on this or that pet issue, then we as a people and a nation have already lost. The court by definition is no longer an independent arbiter and guardian of the supreme law of the land, but a pliant instrument blowing in the winds of political preference.

The president and the senators, no matter how much they may try to influence the atmosphere, mood and direction of the court, are appointing and confirming a justice who will henceforth be answerable to neither. Turning again to Hamilton, this independence is “peculiarly essential in a limited constitution.” Limitations on legislative authority “can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the tenor of the constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.” Every supreme court justice without exception has surprised or disappointed the president who appointed them, as surely as King Henry II regretted choosing Thomas a Becket as Archbishop of Canterbury. Have we forgotten that Earl Warren was appointed Chief Justice by President Dwight David Eisenhower, at the urging of Vice President Richard M. Nixon?

It is therefore futile to try to "sway" the court by judicial appointments. George Washington University's Jeffrey Rosen points out that the senate might do better to ask Roberts about the issues that will come before the court in 2015 than about the controversial cases of the past fifteen years. Fortunately, the prescience to frame or answer such questions does not exist in the human mind. But we can be reasonably sure that John Roberts's greatest impact will be on the resolution of future controversies, not atavistically rolling back well settled law.

Judge Roberts was clerk to 2nd circuit appeals court judge Henry Friendly. In his younger days, Friendly was clerk to Justice Louis Brandeis, and helped write Brandeis's opinion in Olmstead v. United States, which laid the foundation for our right to privacy rooted in the Fourth and Fifth Amendments. Friendly is known as a judicial conservative, who hesitated to rule for the outcome he personally favored, if the legal analysis necessary to get there would set a bad precedent for future decisions. Well, what does that tell us about Judge Roberts? About as much as all the rest of the rhetoric hanging like a cloud over the coming confirmation hearings.

If I were a United States senator, I would like to ask the nominee a question about the Olmstead case. I would ask

Judge Roberts, in Olmstead v. United States, Chief Justice Taft wrote a majority opinion that, since telephones and wiretaps were not known to, nor explicitly prohibited by, the framers of the Constitution, the 4th amendment could not define a wiretap from off an individual's private property as a search or seizure. Justice Brandeis, joined by three other justices, including Oliver Wendell Holmes, Jr., asserted that the Framers "conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." As we know, that asserted right later came to be adopted by a majority of the court in many succeeding cases. Without giving an opinion on the outcome of any past or future litigation, what is your analysis of that philosophical clash? Can the framework of a constitution expand to apply original principles to new developments that the authors could not have anticipated? If not, how durable an instrument can it really be?
There is another question I would like to ask, with apologies for the polluted political atmosphere that even raises it.
When the Supreme Court decided McCollum v. Board of Education, the only Roman Catholic sitting on the court, Justice Frank Murphy, joined the 8-1 majority in affirming that "The First Amendment has erected a wall between Church and State which must be kept high and impregnable." Archbishop Cushing of Boston responded "I am at a loss to understand how the Catholic member of the Supreme Court could go along with that opinion." I know that thousands of elected and appointed public officials, American citizens of the Roman Catholic faith, have served our nation with complete integrity, and without having to choose between their civic and spiritual allegiances. But at a time when bishops have taken it upon themselves to blackmail or bribe public officials, to coerce their conduct in office, by manipulation of the confessional, and threats to withhold Holy Communion, I find it unfortunately necessary to ask your thoughts on the implications of Archbishop Cushing's remark. Does a Catholic member of the Supreme Court have an obligation to follow the wishes of an ecclesiastical hierarchy? Does this take some precedence over his or her understanding of what the supreme law of the land mandates?
John Roberts's career offers no reason to ask that question, no cause to doubt the integrity of his conduct in office. But the times, and the irresponsibility of certain bishops, requires that the question be openly asked.

The strength of the court as an institution is our best hope. Roberts's recognition that a judge must be humble enough to listen to fellow judges speaks volumes. What the court does really is the product of nine minds deliberating, not an electoral contest. Perhaps the best measure of what kind of justice Roberts will be lies in his remarks to a group of law students last winter, reported in Time magazine September 5: "Deciding cases was a lot harder than I thought it would be. I kind of thought that in most cases that it would be pretty obvious... that this person should lose, this person should win, and you'd spend most of your time writing the opinions. I've found that I have to spend far more time than I thought I would just getting to that first step – what the right answer should be." One can ask for no better work ethic from a man or woman entrusted with expounding the supreme law of the land.