The trouble is that to even my admittedly passing theological knowledge, the piece is dumb. Smart people shouldn't post it.
In short, even a non-scholar can recognize the slapdash biblical argument being touted as a non-sequitor. Glenn Reynolds should be similarly embarassed for posting this.
The problem with the foregoing sort of arguments being put forward by those who support gay marriage against those who oppose the institution on religious grounds is twofold. First, they attack the most ignorant of Christians (i.e., those whose knowledge and understanding of the Bible and church teachings are equally simpleminded), rather than addressing more sophisticated ones. This, of course, doesn't really prove much, except that even Reynolds et al. are more clever than the average ignoramus.
Relatedly, Christian condemnation of homosexuality need not exclusively depend on the Old Testament. The Christian case against homosexuality finds support in the New Testament book of Romans and over a thousand years of church teaching and tradition. This interpretation of Romans and Christianity's teaching and tradition on the subject of homosexuality might arguably be mistaken, or simply be irrelevant to how a modern nonsectarian state conducts itself; however, to proceed as if Christians were merely grounding their position in the law of the ancient Hebrews is mistaken to the point of misrepresentation.
This distinction between Old and New Testament techings is not a trifle from the perspective of many Christians either. For example, the mocking congressional speech discussed in Rickey's post cites a passage from Deuteronomy for the proposition that wives who do not come into a marriage as a virgin should be stoned to death. That same passage goes on to condemn those who commit adultery to death as well. Yet Jesus himself abrogated this very portion of the law:
[1] Jesus went unto the mount of Olives.
[2] And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them.
[3] And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,
[4] They say unto him, Master, this woman was taken in adultery, in the very act.
[5] Now Moses in the law commanded us, that such should be stoned: but what sayest thou?
[6] This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.
[7] So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
[8] And again he stooped down, and wrote on the ground.
[9] And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.
[10] When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? Hath no man condemned thee?
[11] She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more.
I cannot help but note with some genuine humor that the folks so eager to throw the Hebrew law in Christians' faces stand in the shoes of the Pharisees.
Secondly, the comparative proposition being put forward is argumentatively flawed. The basic premise of the argument is that if one accepts the Old Testament's condemnation of homosexuality, then one must endorse all other moral teachings located in the Old Testament as well, or else be guilty of cafeteria Christianity. But, of course, if a Christian were to cite Deuteronomy 5:17 in support of the proposition that murder is morally wrong, no one would derisively countercite Leviticus 11:9-12 and think it a sensible let alone clever refutation. In short, we all readily accept some principles from the Old Testament while discarding others and seldom if ever think twice about it. Some teachings have survived into modern Christianity and others have not.
I am not certain that there is such a thing as a convincing argument either for or against gay marriage, inasmuch as everyone more likely than not is proceeding on moral intuition in this area. But there certainly are bad arguments. This business about marriage as understood in terms of the Old Testament isn't just a bad argument, it is the worst argument that I have yet heard. It's the sort of discourse that not only fails to convince, but fails to convince one to even go on listening.
Update: In the original post, I wrote that:
In short, we all readily accept some principles from the Old Testament while discarding others and seldom if ever think twice about it. Some teachings have survived into modern Christianity and others have not.
This produced at least one disgruntled reply in the comments. "Simon" wrote:
. . . [A]ppropo your comment that "some teachings have survived . . . while others have not," I'd love to hear you explain how we should determine which of those teachings have not survived because they are bad teachings and which have not survived because we are all sinners.
I do not think, however, that such hard work is in order in this case. For Christians, these topics were resolved by the foundational texts. Consider Mark 7:1-23, in which Jesus is reputed to have expressly stated that, "[t]here is nothing from without a man, that entering into him can defile him" in the specific context of Jewish custom and practice regarding food. No such utterance excusing homosexuality is to be found in the New Testament, however. Indeed, as noted, Paul's letter to the Romans appears to contemplate such behavior as sinful.
Nonbelievers, no doubt, are less than convinced by scriptural and doctrinal arguments. Moreover, even if one does seriously regard the Christian faith, arguments more sophisticated than "God Hates Shrimp" might be put forward that cast homosexuality in a more favorable light. In the comments, "Ruidh" attempts to do just that concerning the segment of Romans under discussion. But the foregoing concessions do not gainsay that "God Hates Shrimp" is a ridiculous and ridiculously ignorant argument. It simply is not a counterargument to the traditional position on homosexuality adopted by Christians.I have posted my own views on the movie over the course of three posts in the last few days, which may be viewed here, here, and here. Since their original posting, additional updates and/or comments have been appended to them.
I find the controversies surrounding The Passion to be fascinating. However, I am afraid that I am going to have to cut short any further discussion for the time being, as I am off to see another movie. Interestingly, the makers of the film in question are using a weblog to promote to it, which I have never seen before. I do not imagine that Club Dread will arouse nearly as much passion as Gibson's film, but I look forward to it nonetheless. Much to my surprise, Broken Lizard's last film, Super Troopers, was very entertaining.
Update: If you only see one movie this year, make it Club Dread—if you are a masochist! Mere words cannot describe the sheer godawfulness that is that movie. I have read microwave instructions that were funnier.
lawyers for transexuals houston, texas
Somehow, I doubt that the searcher in question found what "he" or "she" was looking for. That my site turned up in the search results at all is, no doubt, a textbook example fo the problem that weblogs are creating for Internet search engines. I would love to know what this person's legal problem is though.
A few moments later during his recitation to the court, [convicted murderer Robert] Ivey asked the judge for credit toward his sentencing because of his conscientiousness in having spent "seven hours" cleaning up the crime scene and the victim's body.
(Story via News of the Weird.)
Unlike others, I was not personally moved by this film in any fashion. However, this almost certainly is not a poor reflection on the movie itself, which is undeniably intended to have an emotional impact on the Christian viewer. It just so happens that my own Christian faith is (rightly or, more likely, wrongly) rather detached and depersonalized.
I was also not moved by the film's violence as some have been. Writing of the The Passion, Roger Ebert, for example, opines that:
The movie is 126 minutes long, and I would guess that at least 100 of those minutes, maybe more, are concerned specifically and graphically with the details of the torture and death of Jesus. This is the most violent film I have ever seen.* * * Note: I said the film is the most violent I have ever seen. It will probably be the most violent you have ever seen. This is not a criticism but an observation; the film is unsuitable for younger viewers, but works powerfully for those who can endure it. The MPAA's R rating is definitive proof that the organization either will never give the NC-17 rating for violence alone, or was intimidated by the subject matter. If it had been anyone other than Jesus up on that cross, I have a feeling that NC-17 would have been automatic.
Other movie critics have made much the same observation, but fully intended their assessment as criticism. Some have evinced the opposite conclusion, agreeing with the descriptive claim regarding the level of violence but nonetheless finding such a portrayal edifying to some degree. For example, Tom Smith writes that:
If you are any sort of Christian, it's hard to see how you could not find the movie a moving experience, the way a punch in the stomach is moving. To call the movie violent is a ridiculous understatement. It should have been rated NC-17, not R. Yet, I think there is something legitimate in depicting sadistic violence as being as evil as it is, even apart from any religious significance.
I do not, however, share the widespread agreement concerning the level of violence. The violence of the film does not strike me as being particularly unique in degee. Films like Kill Bill, Vol. I positively revel in gore from start to finish, no matter how affected or stylized. The realism of the violence in The Passion is also not particularly unique. Movies like Saving Private Ryan and HBO's semi-related series Band of Brothers pulled no punches in their depiction of war.
What, perhaps, is different about the The Passion is not so much the presentation as the story itself. Other movies present and, sometimes, even dwell on violence in lurid detail in advancing their story arcs. However, in The Passion, which revolves almost exclusively around the crucifixion, the violence is the story. Other movies, no matter how graphic, provide some respite from troubling celluloid events. Unless viewers avert their eyes, The Passion offers no such comfort. Perhaps, its relentlessness accounts for viewers' seemingly greater disgust and horror for the on-screen death of one Jew than for the millions of deaths involved in a film like Schindler's List.
I also suspect that much of the horror evoked by the violence featured in The Passion stems from a predisposition shared by members of the target audience. Christians revere Jesus as the messiah. Witnessing His vicious mistreatment likely arouses a depth of sentiment to which no other protagonist may lay equal claim. Ebert's intuition that "had [it] been anyone other than Jesus up on that cross . . . [an] NC-17 would have been automatic," perhaps, gets things precisely backward in the sense that it would be impossible to have a more sympathetic figure crucified.
Though intense and prolonged, the violence in The Passion is also of a different character than much of the violence elsewhere in cinema. Fight Club, for example, features a brutal, disfiguring beating, after which the protagonist chillingly explains that he "wanted to destroy something beautiful." Films like it and Natural Born Killers seem like little more than exercises in nihilism to much of the viewing public. The premise of The Passion, of course is redemption through blood. See, e.g., Matthew 26:28 (KJV). While the violence of this film is undeniable, it is in no sense gratuitous. Ultimately, to attend The Passion and come away complaining of the violence would be like going to see Days of Thunder and lamenting the omnipresence of NASCAR.
Some may think that the violence detracts from the film's message. Such a subjective claim is hard to evaluate, but one's perspective on this matter is likely shaped in large part by one's own theological leanings. The film's message may also be distorted by either anti-semitism or charges of anti-semitism, depending on one's viewpoint. My own view, having seen the film, is that one cannot plausibly condemn The Passion as anti-Semitic unless one simply thinks the Gospels' accounts are themselves a libel upon the Jews. Others, like Tom Smith, and Jonah Goldberg, seem not to regard the film as being anti-Semitic, but they do think that it could nonetheless inflame anti-Semites. This could be true, but The Passion isn't likely to create any anti-Semites and those who already truck in Jew-hating linger in a perpetual state of inflammation.
In my opinion, a film like The Passion would be greeted by charges of anti-Semitism even if it went out of its way to portray the Jewish establishment with greater sympathy. Christianity purports to supercede Judaism, a claim bound to excite some hostility. For that matter, if taken seriously, The Passion logically entails exclusivism, see, e.g., John 14:6 (KJV), notwithstanding the intellectual contortionism that Christians have engaged in to avoid this conclusion. Doubtless, this is bound to be viewed as confrontational not only by Jews but by any non-Christian. In short, it is probably not possible to make a serious sectarian film about Jesus that does not offend Jewish sensibilities and those of other non-Christian communities. For this reason, I tend to regard the complaints centering on the film's portrayal of culpability for the crucifixion as between the Jews and the Romans as so much makeweight. Rather inaccurate counterarguments centering on Pontius Pilate from those who feel the film is unfair to the Jews reinforces this sense.
Much to my own surprise, what The Passion most reminds me of is Nikos Kazantzakis's maligned and misunderstood The Last Temptation of Christ, which, of course, was made into a film in the late 1980s. Although each goes about it in a dramatically different fashion, The Passion and Last Temptation both place heavy emphasis on Jesus's humanity and His suffering as a means of highlighting the grandeur of His accomplishment. I find The Passion's unrelentingly emotive exploration of Jesus's humanity to be almost quasi-Nestorian in nature, but Christianity has long dwelt on the passion of Christ (e.g., medieval passion plays). Moreover, there are certainly bits of Scripture that place Jesus's humanity on full display. See, e.g., Mark 14:34-36 (KJV). The Passion opens with the very scene depicted in Mark, in which Jesus "prayed that, if it were possible, the hour might pass from him."
Update I: Ipse Dixit provides an interesting take on the film from the perspective of someone who is "not a devout Christian." Among the more interesting observations is this bit:
The condescending twit assigned by the Curious-Urinal to review the film complains that Jesus' motivation for enduring all this pain and strife is largely absent . . . . This strikes me as being rather like going to see The Godfather Part III and complaining that Vito Corleone wasn't in it. This film isn't about why; it's about what.
In some measure, this is why accusations concerning anti-Semitism that are founded on lack of context fail to persuade me. It's also why claims that concentrating on the crucifixion distorts Christianity's teachings or the significance of Christ are not wholly persuasive, in my opinion.
Update II: Two Jewish reviewers offer radically different assessments concerning The Passion's alleged anti-Semitism. Interestingly, Jesse Walker shares sentiments similar to mine concerning the level of violence in the film:
And the gore? It is real, though anyone who comes to the theater expecting to see the Kill Bill of passion plays will be disappointed. All the blood will surely come as a shock to those who get their sacred art from interdenominational greeting cards and Touched by an Angel, but it shouldn't surprise anyone who's spent time in, say, an art gallery. Still, the critics seem obsessed with it. MSNBC.com's John Hartl, for example, appears amazed that the movie spent so much time depicting Christ's suffering and hardly any relaying the man's message: "It tells us next to nothing about Jesus, aside from the fact that he said a few things about loving one's neighbors and then died horribly." Hartl forgets that film is a visual, visceral medium, and that it needn't be driven by narrative or weighed down with explanations. I'd hate to see his review of Bosch's Christ Carrying the Cross or Goya's Arrest of Christ.
Leon Wieseltier's somewhat histrionic impression of the fim, on the other hand, goes some way to confirming my notion that those who condemn The Passion are really incensed by the Gospels themselves or Christianity in general rather than the movie. After previously denying any such thing, Wieseltier writes:
There is another problem with the insistence that a movie such as The Passion of the Christ can be intelligible only to a believer. When a non-Christian such as myself reads the Gospels, he is filled with a deep and genuine pity for the man who endured this savagery, and for his mother. (Jesus' mother is infinitely more affecting than his father.) In its meticulous representation of Jesus'[s] excruciations, Gibson's film is designed to inspire such pity. The spectacle of this man's doom should be unbearable to a good heart. Yet pity is precisely what The Passion of the Christ cannot inspire, because the faith upon which it is based vitiates the sympathetic emotions. Why feel pity, if this suffering is a blessing? Why mourn, if his reward for his torment, and the world's reward, is ordained? If Jesus is not exactly human, then it is not exactly dehumanization that we are watching, and that we are deploring.
Of course, this complaint goes not to the heart of The Passion but rather to the heart of Christianity's conception of Jesus as the Son of God and messiah. In short, Wieseltier's critique is an attack on Christian theology in general, not Mel Gibson's particular brand of the religion or depiction of events.
Update III: The charge of anti-Semitism regarding The Passion largely rests on the comparative depictions of Caiaphas and Pontius Pilate. John O'Sullivan offers a very interesting take on the matter at NRO:
Pilate is portrayed as a sympathetic character, they argue, who wants to spare the innocent Christ but who yields to the demands of Caiaphas and the mob that He should be crucified. Caiaphas, however, harbors no such reluctance. He agitates clearly for Christ's death. And this is undoubtedly what Gibson's film shows—just as it is also undoubtedly the account in the Gospels.But is it anti-Semitic? For what the critics miss is that this account makes Pilate a far worse villain than Caiaphas. After all, Caiaphas believed that Christ had committed the ultimate sin of blasphemy by claiming to be the Son of God. As a leading representative of religious laws that condemned adulterers to death by stoning, he was almost bound to call for His execution. Caiaphas is making a terrible mistake. He may also have corrupt political motives for his actions. But he is plainly sincere in believing that, however conveniently, he has the law of God on his side.
Pilate is on much weaker ground. He condemns to death a man he believes to be innocent—and he does so, moreover, in a shifty manner that seeks to fix all guilt for the murder on Caiaphas and the mob and to exculpate himself.
From the standpoint of the New Testament, according to the traditional teaching of the Christian church, and in Mel Gibson's movie, Pilate is by far the greater villain. . . .
Update I: I note that this Newsweek story also relies on sources like Josephus and Philo of Alexandria in a fairly uncritical fashion while dwelling on the motives of the authors of the Gospels in some detail.
There is at least one other peculiar passage in the article, when it states that:
The accusation about eating Jesus' flesh and blood—obviously a Christian image of the eucharist—does not appear in any Gospel trial scene.This is true in the most literal sense: it does not appear in the indicated scene. But the concern over consuming Jesus's flesh was evinced by Jews in one of the Gospels. See John 6:51-52 (KJV). To read the Newsweek article one would think that the entire notion was made up of whole cloth. Ignorance of Scripture combined with credulousness of non-biblical sources does not make for a very useful discussion.
Another curious claim is made by the article:
The climax comes when Caiaphas asks Jesus: "Are you the Messiah?" and Jesus says, "I am . . ." and alludes to himself as "the Son of Man." There is a gasp; the high priest rends his garments and declares Jesus a blasphemer.* * * And it was not "blasphemy" to think of yourself as the "Messiah," which more than a few Jewish figures had claimed to be without meeting Jesus' fate, except possibly at the hands of the Romans. The definition of blasphemy was a source of fierce Jewish argument, but it turned on taking God's name in vain—and nothing in the Gospel trial scenes supports the idea that Jesus crossed that line.
This claim occurs in the same passage as the previous one that I criticized, which gives a misleading impression that this too must not appear in the Gospel trial scene. Except, of course that this charge concerning blasphemy does so appear. See Matthew 26:63-65 (KJV).
I think that these two criticisms, which, as noted, appear in the very same passage of the Newsweek article, are quite telling. In the first, Gibson is criticized for including material that does not appear in the trial scene in the Gospels, notwithstanding support in the Gospels for the accusation. In the second criticism, Gibson is criticized for something that does appear in the trial scene in one of the Gospels. In short, Gibson is damned if he does strictly adhere to the text and damned if he doesn't. There seems to be no pleasing his detractors.
(Link via Judith Weiss.)
Update II: More nonsense about Pilate appears in the New York Times, where Edward Rothstein remarks:
The contrast is evident even in the treatment of Jews. Mr. Gibson goes far beyond the Gospels. He makes Pontius Pilate, historically renowned for his brutality . . . ."
I simply love how everyone is a scholar of classical antiquity all of a sudden.
(Link via David Post.)
Update III: Yet more on Pilate from Slate's David Edelstein:
Pilate, whom historians identify as a surpassingly cruel ruler responsible for crucifying many thousands to maintain his authority, is portrayed as a sorrowful, even-tempered man whose wife (Claudia Gerini) shows acts of loving kindness toward Mary (Maia Morgenstern) and Mary Magdalene (Monica Bellucci). Pilate is shocked by the Jews' brutality and by the determination of the priest Caiphas (Mattia Sbragia) to see this so-called blasphemer executed. While Pilate wrinkles his forehead, searching his tender conscience, sundry Jews lean into the camera and hiss or keen through rotted teeth.
Whether the portrayal of Pilate is accurate or fair is one question, but whether Pilate was "surpassingly cruel" is quite another. Edelstein never gets around to quoting any of the "historians" who think Pilate was so. And he certainly doesn't address the dearth of evidence on this score or even note who the few ancient sources are, let alone explore any of their biases. Most of this Pilate-related nonsense that is being pedaled in the wake of The Passion simply depends on the ignorance of the reader for its thesis. Whether the reviewers are similiarly ignorant or outright disingenuous remains an open question in my mind.
(Link via Tom Smith.)
As would-be defendant Evan Schaeffer explains:
For the past way-too-many hours, a man from Europe who claims to have lawyers all over the world (including Florida) has been trying to get me to remove this innocuous post from my blawg. The post, which was about the Talking Heads, included a federal criminal court decision [United States v. Abner, 825 F.2d 835 (5th Cir. 1987)] in which the man's name was mentioned. A few weeks later, thanks to the power of Google on the steroids of blogs, Internet searches for the man's name began to return my post—with its references to the man in the text of the criminal case. This he doesn't like.However, the e-mails were apparently just a warning sign. Not only has this mysterious European gent declared "I wish you would not say that" in so many words, he is threatening Schaeffer with legal action. A lawsuit would, of course, be traversing a legal road to nowhere under the circumstances. His name is, after all, in a published legal opinion; so his cries of "Give me back my name" are a trifle misdirected when aimed at Schaeffer.
Nonetheless, I can understand how even a clearly frivolous suit has the potential to make one's daily existence resemble life during wartime, which is clearly not a good thing. So rest easy, Mr. Schaeffer, if push comes to shove in federal court, I will stay up late assisting with the necessary response—pro bono.* As my recent psychological profile revealed, I am a firm believer in dismissing groundless suits; rest assured, I will show no compassion in zealously pursuing your defense. I will file dilatory motions until plaintiff's counsel is blind from overload and his mind is reeling. I will bury him in cities of paper that leave him struggling for air. I will do everything short of burning down the courthouse to advance your defense.
In the meantime, you may take some solace in the fact that the criminal case you discussed on your blawg involved illegal currency transactions rather than more serious crime (e.g., offenses involving drugs), so at least we have good reason to believe that your Internet nemesis and plaintiff-in-waiting is not some psycho killer. Believe me, when it is all said and done and we have had our day in court, we will look back and reminisce about what a day that was.
* In a perfect world, I would even be happy to walk it down to the courthouse. But it is a big country, and this potential plaintiff might file his suit in any of the number of jurisdictions under heaven. So you will have to furnish any travel expenses, if you want me to appear in person.
Braveheart was gaudily violent, in spurts. This one is crimson carnage from the moment Jesus is condemned, half an hour into the 127-min. film. One of his eyes is caked closed from a beating by Jewish goons, but the Romans are the pros. They take their time applying 80 or so wince-worthy lashes to his body, and the camera pays avid attention to the whole draining spectacle. He falls three times, which is fine for Catholic fidelity but wasteful and redundant as movie drama.Inspired as much by Renaissance iconography, the Stations of the Cross and the Sorrowful Mysteries of the Rosary as by the Gospels' terse narratives, Gibson portrays Jesus' agony and death in acute and lavish detail. In the end, all that gore tends to blunt not only the story's natural power but even the sense of horror at what a god-man has to endure to save all men. The Passion may be unique in movie history in devoting most of its length to the torture of one man who doesn't fight back. He takes a flaying and keeps on praying. This is Gandhi as Rocky. It's Bloodheart.
What is the audience for this Passion? Many Christians—who would appreciate the message—may be repelled by the film's unrelenting bloodletting. The teen boys who make box-office winners every Friday night may like the blood, but they want their heroes to fight back and blow stuff up. Nor is this exactly a date movie. No, the audience profile for The Passion of the Christ is fairly narrow: true believers with cast-iron stomachs; people who can stand to be grossed out as they are edified. And a few movie critics who can't help admiring Mad Mel for the spiritual compulsion that drove him to invent a new genre—the religious splatter-art film—and bring it to searing life, death and resurrection.
It is sort of difficult to take Corliss seriously on matters of religion in film. In his review of Kevin Smith's Dogma, he opined that:
For all the fun it pokes at Catholic doctrine—that God is a woman (Alanis Morissette), that the last descendant of Jesus (Linda Fiorentino) works in an abortion clinic, that there was a 13th Apostle who was black (Chris Rock)—Dogma is a tortured testament from a true believer. In an age when not only belief in God but belief itself brings a smirk to hip, jaded faces, this is a film out of time, the most devout movie in a modern setting since Robert Bresson's Diary of a Country Priest (1951), and a worthy successor to The Last Temptation of Christ, Martin Scorsese's 1988 parable of doubt purified into faith. Love Dogma or dismiss it, but don't condemn the film for what it isn't. As Ben Affleck, one of the zillion-dollar stars in this $10 million film, says, "It's a rumination on faith. With dick jokes."* * * Smith calls the film "a bizarre mix of lowbrow jokes and highbrow concepts and then vice versa." Ain't it, though? He mixes poop and prophecy, scatology and eschatology; he crams his script with enough belly laughs for six Adam Sandler movies and enough citations of angelology and the Gnostic gospels to make a Jesuit's head split. This is a Shavian debate—Don Juan in New Jersey—with potty mouth. Dogma, recall, comes from the Greek word meaning "to think." And that's what Smith wants the viewer to do.
So Dogma is a cerebral encomium of faith, but The Passion is a creepy religious analog to The Texas Chainsaw Massacre?
Although I am quite interested in Gibson's film, I have largely avoided discussing it because its critics seem so unhinged from reality. For example, in an interview with Diane Sawyer, she relayed the concerns of one theologian who wondered with terrible seriousness if Martian visitors unacquainted with the complete story of the Gospels might miscontrue the film as being anti-semitic. Gibson's worthy reply was to the effect that, yes, they might—if they were from Mars.
These complaints about violence strike me as being similarly odd. Objecting to an apparently accurate depiction of Roman crucifixion is like objecting to the vivid and harrowing portrayal of combat in Saving Private Ryan or Blackhawk Down. I am reminded of an acquaintance of mine who refused to see Schindler's List, because she felt that the Holocaust was just too upsetting, too depressing a topic to endure. Yes, it is so much better to shut our eyes and put all of this unpleasantness out of mind.
YOU ARE RULE 12(b)!
While you might be a defendant's best friend, you aren't exactly polite to others. You have seven separate grounds on which to dismiss a plaintiff's case. You are a bit paranoid, since if you fail to raise your 12(b)(2,3,4, or 7) in a motion or a pleading with one of the other 12(b) defenses or a 12(e) motion, you waive those objections for the rest of trial. It is clear that 12(b) is the biggest bully of the rules of the civil procedure. While it is true that many states have modeled their motions to dismiss off of rule 12(b), are you sure that you truly want to model your personality after such an obnoxious rule?
Which Federal Rule of Civil Procedure Are You?
(brought to you by Quizilla)
The full text of Fed. R. Civ. P. 12(b) may be viewed here.
Next week the U.S. Supreme Court will hear a case to decide whether or not all Americans must have identification on them at all times. The case has been brought by a cowboy in Nevada who was asked to show ID while he was leaning against his pickup truck on the side of the road near his ranch. The police officer did not offer any specific reason why he demanded proof of identity. Having committed no crime, Dudley Hiibel, the cowboy, refused—and was arrested. He was later convicted for "Delaying a Peace Officer." In America, still a free country, citizens should not be required to provide identification papers at any whim of the authorities.In the case at hand, Mr. Hiibel gave the arresting officer a chance to justify his request. But when asked why he demanded identification, the sheriff's deputy said only, "Because I'm investigating." When asked what he was investigating, the policeman responded with a wisecrack: "I'm investigating an investigation." The argument before the U.S. Supreme Court is whether requiring identification at any time is a violation of the Fourth Amendment's protection against unreasonable searches and seizures or an invasion of privacy by the government.
Interestingly, the cowboy in question has a website that provides greater detail about the case. Among other things, the site has links to several of the filings that have been submitted to the Supreme Court. Both the ACLU and the Cato Institute have filed amicus briefs in the case supporting Hiibel's position. The Solicitor General of the United States has filed an amicus brief defending the state's law and the officer's conduct.
The statement of facts in the Solicitor General's brief suggests that this may be a closer case than the Times editorial indicates. Or at the very least it gives the impression that the case is not so factually lopsided as the Times's recital suggests. It states that:
On the evening of May 21, 2000, Humboldt County, Nevada Sheriff's Deputy Lee Dove received a report that a witness had seen an individual striking a female passenger inside a pickup truck. Dove drove to the location of the incident and spoke to the witness, and the witness directed him to a truck that was parked nearby. When Dove approached the truck, he observed skid marks in the gravel, suggesting that the truck had been pulled over in an aggressive manner. Petitioner was standing outside the truck and his minor daughter was seated inside. Based on petitioner's mannerisms, speech, eyes, and odor, Dove believed that petitioner was intoxicated.Deputy Dove told petitioner that he had received a report that petitioner had been fighting with the passenger, and Dove asked petitioner to identify himself. Petitioner refused, instead placing his hands behind his back and challenging Dove to take him to jail. Dove continued to ask petitioner for identification, and petitioner continued to refuse. Petitioner stated that he had done nothing wrong, and he continued to place his hands behind his back and to ask Dove to take him to jail. After eleven unsuccessful attempts to determine petitioner's identity, and after warning petitioner that his failure to provide his identity would result in his arrest, Dove handcuffed petitioner and placed him under arrest.
Whichever depiction is more accurate (or more legally relevant), the Hiibel case seems worth watching.
But I can't see how committed textualists can get around this:Article II, Section 2 saysThe President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
The key word here is "happen." A straightforward, textualist reading of this would lead one to conclude that only those vacancies that "happen," or occur, during a Senate recess can be filled by recess appointments. Unfortunately, that has not been the historical understanding.
And don't give me any garbage about how precedent has applied the terms. The very fact that precedent may stray from the plain words of the text, and the original understanding of those words is precisely why J. Scalia, inter alia, has said time and again that precedent is less important in his decision calculus than it might otherwise be. Precedent that is dissonant with the 'mandates' of textualism and originalism cannot dictate a given result. Right?
This seems to me to be a toughie for intellectually honest, politically conservative textualists. Well? What do the two of you say?
There are a couple of real problems with this criticism. The first is that it does not necessarily apply a textualist understanding to Article II, Section 2, Clause 3 of the Constitution. Ratification of the Constitution was completed in 1788. So in order to interpret this clause in a textualist manner, we must first have some sense of how the term "happen" was employed at the time that it was drafted and adopted. Language usage and meaning is not absolute; it changes over time. So if we engage in a plain meaning textualism that takes no account of differences in usage between yesterday and today, we will quickly be lead astray. See United States v. Lopez, 514 U.S. 549, 587 (1995) (Thomas, J., concurring) (observing in a Commerce Clause case that "interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems").
I get no sense from reading Trivial Pursuits' or Eugene Oregon's posts that they have undertaken the sort of research necessary to confirm that their usage of "happen" coincides with that of the Framers. They just assume that textualism means reading the text in a vaccum. But, of course, in order to understand a text we must generally understand its context as well, including the historical context of the language employed. To do otherwise would be like trying to read Shakespeare without acknowledging the differences in his English and ours. The jurisprudence of textualists consciously acknowledges this distinction. See, e.g., Lopez, 514 U.S. at 585-86 (Thomas, J., concurring) (consulting late-eighteenth century dictionaries concerning the definition of "commerce").
Furthermore, Trivial Pursuits and Eugene Oregon do not even bother to confirm that their understanding of happen reflects contemporary usage. They just assume their conclusion. It is not clear that even the modern usage of the word "happen" would not allow for the recess appointments in dispute. While "to occur" is one very prominent modern meaning of "happen," the third definition in the foregoing hyperlink includes "to . . . encounter." Hence, one might read the clause in question to mean that when the president encounters vacancies he may fill them. Trivial Pursuits and Eugene Oregon simply assume that the meaning is plain as day, but such clarity is not altogether clear even by way of contemporary speech. Textualism is not nearly so easy an exercise as they intimate.
The second difficulty with their critique stems from their disparagement of stare decisis and their apparent belief that textualism and stare decisis are incompatible. Although Trivial Pursuits does correctly indicate that precedent in constitutional law enjoys less prestige under a textualist understanding when it fails to conform to the text, no textualist argues that precedent enjoys no privilege or status. His criticism in this regard reminds me of the denunciations of "fair weather federalism" that are issued anytime conservatives think that states rights ought to give way to federal prerogatives. In short, this criticism depends on an absolutist form of textualism that no one has (or could) argue in behalf of without being regarded as a wild-eyed radical. Utter disregard for settled precedent in favor of textualism and originalism would work a judicial revolution in constitutional law.
Liberals often perceive such nuance as being awfully convenient. For example, the Supreme Court's Eleventh Amendment sovereign immunity jurisprudence has largely come at the expense of textualist interpretation. Instead of honoring the text, a majorty of the Court has seen fit to abide by longstanding precedent, e.g., Hans v. Louisiana, 134 U.S. 1 (1890), notwithstanding some erudite dissents by Justice Souter that would seem to demonstrate that the precedent in question rests on a mistaken historical understanding. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 100 et seq. (1996) (Souter, J., dissenting).
However, everyone's ox is gored by adherence to such imperfect precedent. For example, there appears to be little doubt that our understanding of the Commerce Clause has strayed from its textual and historical moorings since the 1930s. Lopez, 514 U.S. at 593-601 (Thomas, J., concurring). Conservatives and libertarians would certainly as a matter of policy preference be delighted to turn back the clock. However, stare decisis likely insulates the intervening decades' jurisprudence from revisitation. See id. at 601 n.8 (Thomas, J., concurring) ("Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean."); see also Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-59 (1992) (upholding the precedential status of Roe v. Wade).
This is not to say that textualism and stare decisis are not in tension with one another on occasion. Clearly they are at times. The extent to which the former must give way to the latter is indicated by the flexible standards concerning adherence to precedent articulated in Casey. Reasonable people may often find themselves disagreeing about the proper application of these standards, but the notion that such differences amount to intellectual dishonesty on the part of textualists is uncharitable. Indeed, such assertions are insupportable. Deference to historical practice and settled precedent that are potentially at variance with a proper textualist understanding is not hypocrisy.
Were they writing on a blank slate, textualists might well apply a textualist jurisprudence to the exclusion of all other considerations. The unelaborated state of the Ninth Amendment, for example, provides an ideal occasion for doing so. However, federal judges are not judicial philosophers engaged in some abstract intellectual enterprise divorced from the constraints of custom. As Justice Frankfurter once explained:
The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Sec.] 1 of Art. II.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).
It may be that Justice Frankfurter goes too far for some textualists, however, I think that the core of the sentiments that he conveys may be reconciled to textualism. Longstanding executive branch practice is akin to venerable judicial precedent. As with the latter, whenever the former exists, the Court is no longer writing on a blank slate. Accordingly, it must acknowledge the context within which it writes, even if a plain reading of the text might counsel a contrary result. To do any less would produce a radical counterrevolution in American jurispriudence. See Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) ("The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.").
Police arrested nine boys, all between 12 and 14 years old, Wednesday in the alleged plan to set fires and smash windows at Cupertino Middle School on Friday night, said Capt. Glenn Fortin of the Sunnyvale Department of Public Safety. All nine boys, whom authorities did not identify because they are juveniles, face charges of felonious conspiracy to commit arson and vandalism. Six boys believed to be the key instigators remained in Juvenile Hall on Friday; three others were cited and released to their parents. The three remaining boys, including the pair who warned officials, have been cleared of any wrongdoing.Alerted by school officials Wednesday morning, police said they found a written "operational plan" that assigned specific roles by name to a dozen boys and involved bringing a rifle, gasoline and walkie-talkies. . . .
* * * "It was very chilling (to have) children 12 to 14 years of age having that level of sophistication to create an operational plan to carry out an act of this level,'' Fortin said. He wouldn't discuss the boys' motives but said one youngster had been recently disciplined at school.
It appears from the story that these tykes' plan was scheduled to take place after school hours and that there was no intention to harm anyone. Of course, arson is almost certain to entail the risk of loss of human life. If no one else, it endangers the firefighters who must inevitably respond to the conflagration. Such simple calculations really do not strike me as being beyond the grasp of 12-14-year-olds.
Placed in this context, the reaction of the school's principle is astounding:
According to the handwritten plan, Principal Barbara Boone said, "The kids were supposed to bring stuff, like, one was supposed to bring a hammer to break windows. They were going to break windows and try to set anything they could on fire.''As she noted in a letter to parents, Boone said she found some relief that the accused students "made it clear that they only wanted to do damage to the school'' in the nighttime attack and "had no intention of harming any fellow students.''
"These were just a few kids who made wrong choices,'' Boone said, noting that 1,100 students attend the award-winning school. "We have a lot of kids who make right choices. And we have to work with the few who made wrong choices and try to reconnect with them, because they're going to need help and support.''
While I do not discount the possibility of rehabilitation or the necessity of earnestly attempting it, it seems to me that any behavioral correction must begin with a sterner characterization of criminal conspiracies that put human life at risk than "wrong choices." The juvenile justice system is the appropriate means of "reconnect[ing]" with such wayward youth.
Nothing lulls an attorney to the passage of time like the sound of his or her own voice. Few attorneys can tell you what time it is without describing how the clock was made.
United States v. Reaves, 636 F. Supp. 1575, 1579 (E.D. Ky. 1986).
I am in large part a textualist. That is, all things being equal, I adhere to the judicial philosophy elaborated by Antonin Scalia in his essay Common Law Courts in a Civil Law System, which may be found in a collection entitled A Matter of Interpretation. Therefore, my inclination is that this debate should begin and end with the text itself.
The Ninth Amendment in its entirety reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
My immediate reaction upon re-reading the text late last evening, expressed in the comments at Trivial Pursuits, was that this single sentence had no substantive content, that, like the Tenth Amendment, it merely states a truism, and that it is really no more than a constitutional rejection of the ancient legal maxim expressio unius est exclusio alterius.
I have since discovered that more than one federal court has adopted precisely the view that I have articulated. Consider, for example, the Sixth Circuit Court of Appeals' opinion in Gibson v. Matthews:
We agree with the district court that the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment "was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution." Charles v. Brown, 495 F. Supp. 862, 863-64 (N.D. Ala. 1980). Accordingly, Gibson's ninth amendment claim holds no merit.
926 F.2d 532, 537 (6th Cir. 1991); accord Lohman v. Township of Oxford, No. Civ. A. 91-7037, 1992 WL 95914, at *4 (E.D. Pa. Apr. 22, 1992) (unpublished opinion).
Charles v. Brown is likewise worth consulting. The district court wrote that:
Plaintiffs do not assert that their rights are derived from any constitutional source other than the Ninth Amendment, except that plaintiffs' attorney stated at oral argument that the Fourteenth Amendment should have been included in the complaint for the purpose of incorporating the Ninth Amendment for application to the states. There is ample authority for the principle that provisions expressing fundamental personal rights and found within the first eight amendments to the Constitution have in effect been incorporated into the Fourteenth Amendment and thereby been made applicable to the states. There is no authority, however, stating that the Ninth Amendment has been absorbed by this process.The rationale behind this becomes apparent after one engages in an analysis of the Ninth Amendment. In contrast to the first eight amendments, the Ninth Amendment does not specify any rights of the people, rather it serves as a savings clause to keep from lowering, degrading or rejecting any rights which are not specifically mentioned in the document itself. The Ninth Amendment does not raise those unmentioned rights to constitutional stature; it simply takes cognizance of their general existence. This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude. It is only to say, however, that unenumerated rights do not rise to constitutional magnitude by reason of the Ninth Amendment.
The foregoing interpretation of the Ninth Amendment is supported by the history of that provision, which reflects that the Ninth Amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution. 1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891). Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude.
495 F. Supp. at 863-64.
It seems rather clear from the foregoing that the plain language of the Ninth Amendment and its proper historical context unambiguously establish that the amendment is not substantive in nature. It is no more than a constitutional rule of construction.
Folks as diverse as Randy Barnett and Steve Dilliard seem to argue that such an interpretation cannot be right because the Ninth Amendment must mean something. Of course, even as a mere rule of construction it is hardly meaningless. Both reject Robert Bork's position; Bork opined that the meaning of the Ninth Amendment was too uncertain to serve as a source of substantive rights. He testified at his Supreme Court confirmation hearing that:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 249 (1989) (testimony of Robert Bork).
Perhaps, it would be more accurate to say that the Ninth Amendment, if interpreted as a substantive provision, would be little more than a Rorschach blot. The fact that folks like Barnett and Dillard would employ it to dramatically different ends is itself something of an indication of this. Doubtless others would read the Ninth Amendment in still more ways. The central truth of Bork's observation is that no textualist explication of Ninth Amendment rights is possible.
Dillard would essentially engage in an examination of the historical record in search of the Founder's conception of the nature of our unenumerated rights. I think that such an approach is no less problematic than Barnett's preferred solution. Any right may be stated at a high enough level of generalization to encompass just about any judicial result or construed in narrow enough terms to preclude any given result. The framing of the legal question and description of the right at issue makes all the difference. Just consider the difference in how the issues were framed in Bowers v. Hardwick, 478 U.S. 186 (1986), and Lawrence v. Texas, 123 S. Ct. 2472 (2003), for example.
Accordingly, it seems to me that what will be outcome determinative if the Ninth Amendment is employed to recognize substantive rights is nothing more than the political preferences of the sitting members of the Supreme Court. This is one area of the law in which the Legal Realist critique has genuine merit. To paraphrase Justice Holmes, the Ninth Amendment does not enact Mr. Randy Barnett's Libertarianism or anyone else's ideological predilections. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). How proponents of these substantive Ninth Amendment theories have convinced themselves that they are doing anything other than resurrecting Lochner in a different context is beyond me.
Where our unenumerated rights are concerned—whatever they might be—my intuition is that the legislative process is a better guarantor of their status and security than judicial decisionmaking, if for no other reason than that we, the people, may more easily revisit mere legislative enactments than the constitutional rulings of the federal courts. Doubtless some will find such a solution unpalatable. After all, rights, if constitutional in scope, are hardly a matter of legislative grace. But courts have hardly proven themselves to be infallible in securing even our enumerated rights, and the common law adjudicative process has a tendency to insulate the courts' decisions from reconsideration in a fashion that is not characteristic of legislative decisions.
Others might object to such a judicial abdication on the ground that it amounts to unfettered majoritarianism, which endangers the rights of minorities. Given the existing constitutional mechanisms for checking the will of the majority, such a concern seems misplaced. Likewise, it is ultimately difficult to conceive of a more feasible check on tyranny than democratic governance. As Learned Hand once observed:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.
The people may be an uncertain repository of our unenumerated rights, but that is precisely where the Ninth Amendment's actual text locates them. When, as here, we are confronted by a complete absence of judicially manageable standards, we have good reason to suspect that the Ninth Amendment contemplated that the people, through self-government, would see to their unenumerated rights. See Nixon v. United States, 506 U.S. 224, 228-29 (1993) (noting that "the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch").
Update I: Southern Appeal provides links to the opinions of others on this topic here.
Update II: Michael Rappaport has a nice post on this topic as well. Among other things, he notes that:
In contrast to the federalism interpretation, others have argued that the Ninth Amendment protects unenumerated, individual, natural rights that apply against the federal government even when it is exercising its enumerated powers. While there may be some support for this view, at present I am more convinced of the federalism interpretation.Without assessing the unenumerated rights position, let me just mention some of the complications of that view. Significantly, even if one does believe that the Ninth Amendment refers to unenumerated natural rights, it is not clear that this would allow judicial review to protect individual rights, whether they be marital privacy or the right to contract. First, it is not clear that the federal courts are supposed to enforce those natural rights. It is quite possible that the Framers would have thought that these natural rights should be protected through political action, such as the type of action by state legislatures that Madison and Jefferson tried to promote against the Sedition Act, or though revolutionary action, such as the Revolutionary War, which justified itself based on natural rights.
Second, some of these natural rights might be group rights. For example, Madison tried to include in the Bill of Rights the following provision: "That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution." Such a right was included in the great majority of state bills of rights, and Akhil Amar makes a strong case for showing that the Framers believed that this was a natural right (even though he does not persuade me that that right should override Article V of the Constitution).
Update III: Finally, as some additional food for thought that is relevant to Trivial Pursuits' concerns about majoritarianism and the importance of judicial review, Stuart Buck points to two articles that look interesting: Larry Kramer's We The People: Who Has The Last Word on the Constitution? and Michael Stokes Paulsen's The Irrepressible Myth of Marbury.
One gets the distinct impression that the superlative appellation is more the result of the GOP primary contest that Specter faces from a conservative challenger this year than considered judgment. Moore's latest effort for NRO does little to dispel this impression. While Specter, like any politician, may doubtless be subject to justified criticism, Moore's depiction of the senator is more caricature than accurate characterization. Now there is no gainsaying that Specter's challenger, Congressman Pat Toomey is more conservative. Indeed, that is something of an understatement. So it is perfectly understandable why political conservatives might prefer Toomey over Specter on simple ideological grounds. But rather than frankly say so, folks like Moore have stooped to misrepresenting Specter's politics. One wonders why.
Let's consider a couple of Moore's arguments. First, Moore portrays Specter as being so liberal that he would be a good ideological fit as Kerry's running mate. He writes:
Democrat strategists are considering Senators John Edwards, Evan Bayh, and former Senator Max Cleland. But they are overlooking a more ingenious choice: Arlen Specter of Pennsylvania.Hold on a minute, you're probably thinking. A Kerry-Specter 2004 ticket? Isn't Arlen Specter a Republican? Well, yes, but a Republican in Name Only (RINO). Over the past 25 years, no one in the United States Senate with an "R" next to his name has voted for so many liberal Democratic policies. Specter has about the lowest American Conservative Union rating of any other senator who bothers calling himself a Republican . . . .
* * * Perhaps his strongest qualification for the job is that he and Kerry agree on so much. They are two liberal peas in the same pod. A new TV ad running in Pennsylvania sponsored by my organization, the Club for Growth, notes that in recent years Kerry and Specter have voted together as often as 71 percent of the time. . . .
Now it is true the Specter has "about the lowest American Conservative Union rating" among GOP senators, albeit not the lowest. Specter has a lifetime ACU rating of 43%. Lincoln Chaffee's rating is slightly lower, while the ratings of other GOP Moderates in the Senate (e.g., Ben Nighthorse Campbell, Susan Collins, Olympia Snowe) are somewhat higher, ranging from 51-56%. However, it is more revealing to look at the ratings of various Democrats. With the exceptions of John Breaux (46%), Robert Byrd (31%), Fritz Hollings (37%), Zell Miller (65%), Ben Nelson (51%), and Mark Pryor (30%), none of the Democrats' ACU ratings rise out of the twenties. Indeed, the majority of the remaining Democrats' ratings do not even rise to the twentieth percentile. John Kerry's ACU rating is is 5%. Other notorious liberals have similarly low percentages: e.g., Barbara Boxer (2%), Hillary Clinton (11%), Jon Edwards (12%), Edward Kennedy (3%), Charles Schumer (6%). So if one takes ACU ratings seriously, as Moore appears to, it is pretty difficult to make the case that Specter and Kerry are political soulmates.
A second charge that Moore makes is that:
. . . [C]onservatives are quivering at the thought of Arlen Specter as the next Judiciary Committee chairman. He could probably do less damage as Kerry's running mate.
Moore cites Specter's failure to support the nomination of Robert Bork to the Supreme Court in 1987 as proof of this charge. Other conservatives have pointed to Specter's opposition to the appellate nomination of Jeff Sessions in 1986 and, more recently, his apparent refusal to support the nomination of Leon Holmes to the federal district bench. Of course, David Keene, the chairman of the aforementioned American Conservative Union and a Specter supporter, has rightly pointed out that Specter played a critical role in confirming Clarence Thomas as an associate justice of the Supreme Court as well. Moreover, even critics like Miller have conceded that, "[d]uring the George W. Bush administration, Specter has supported most of the president's picks for the federal bench." Indeed, if this Washington Times article remains correct, Specter has not voted against a single Bush nominee to date. Hence, while one might plausibly make the case that Specter's record on nominations is mixed, it is nonetheless a far cry from ultraliberal. Others have noted the mixed nature of his record, both on nominations and taken as a whole.
This is not to say that the difference between Specter and Toomey is not pronounced. Toomey has an ACU rating of 96%. But Specter is not a liberal let alone a Massachusett's liberal. Nor is he a Republican In Name Only. He is a GOP moderate. Notwithstanding these facts, yet another NRO detractor of Specter notes that principled conservatives could logically support Specter in his contest with Toomey:
A conservative could nonetheless support Specter in good conscience on the theory that Toomey would be likely to lose the seat for the Republicans, and that in today's circumstances that is not a risk that should be taken.
I offer no opinion on who would best represent the Republican Party in Pennsylvania. However, I recognize spurious charges when I see them. Stephen Moore is either blinded by his own ideology or dishonest. There is a very real difference between Specter and his challenger, but not nearly the difference that Moore suggests.
Previously, the attorney and that state disciplinary authorities had agreed to a one-year suspension of her license to practice law. The state's supreme court has apparently rejected this agreed sanction as being too lenient.
Prior posts on this general topic may be viewed here and here. For a recent and fulsome legal discussion of the issues involved, see Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 S. Tex. L. Rev. 307 (2002).
(Times link via Howard Bashman.)
The most interesting aspect of the case, however, is that the sexual act involved would have been illegal no matter what the ages of the participants were:
Singapore's 77-year-old chief judge has given an earthy defence of his country's notorious prohibition on oral sex—declaring the law should be upheld to safeguard Asian standards of decency.Jailing a 25-year-old former policeman for 12 months for receiving oral sex from a teenage girl, Chief Justice Yong Pung How said that despite growing permissiveness in some countries there were "certain offences that are so repulsive in Asian culture."
"There are countries where you can go and suck away for all you are worth," the judge said. "People in high places do it for all they're worth. I'm not an expert, but you read about it in the papers. But this is Asia."
* * * "This is Asia. That is why originally it was life imprisonment," said the judge.
* * * "Times have changed. Women are freer, they don't just run around the kitchen, as it were," he said.
"But ask any mother or your sisters and you'll get a different answer. No lady or woman would ask what aggravation is needed. . . . The offence itself is an aggravation."
Apparently, Chief Justice Yong Pung How's countrymen disagree with his stern assessment of Asian morality. Certainly the purported victim in this case (i.e., the underage female) disagrees—multiple unrelated criminal cases revolve around her sexual adventures.
Update: In one of the foregoing links, another oral sex case from Singapore is referenced:
In an earlier case detailed in the Straits Times a wife tried to punish her unfaithful husband by performing oral sex on him and then reporting him to the police.
The story does not elaborate on the outcome, but the text leaves one with the impression that the authorities blew off the charge.
By specifying the question presented as concerning the "rape of an adult woman," the Court left open at least two questions: May a state execute the rapist of a child (of either sex)? And, may the rapist of an adult man be legitimately punished with death?
The notion that the Supreme Court was leaving open this latter question is a trifle eccentric to say the least. Colb's contention to the contrary depends on a hypersenstive reading of the opinion's factual context that would reduce it (and any other case so analyzed) to its facts alone. Such a narrow construction would deprive cases of any binding precedential status beyond their immediate facts. Needless to say, there is no indication that the Court saw itself as rendering such a perversely narrow decision in Coker.
I think that Colb makes a similarly unjustified argument in her more recent column about statutory rape as well. She writes:
Such liability is controversial in a number of ways, but it also has some benefits that are often overlooked by critics, thus leaving us with a difficult dilemma that admits of no easy answers.* * * Though a statutory rape charge would not require proof of force or coercion, feminists observed, young girls were (and may continue to be) especially vulnerable to being raped by the adults in their lives. In one study, for example, seventy-four percent of women who had intercourse before age fourteen and sixty percent of those who had sex before age fifteen report having had a forced sexual experience.
In addition, prosecutors attempting to prove rape in court have historically faced significant burdens, such as corroboration requirements premised on the complaining witness's presumptive lack of credibility.
For many years, legal thinkers like Eighteenth Century British Jurist Sir Matthew Hale were convinced that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." Thus, rape law did not provide a reliable or efficacious vehicle for addressing most sexual violence, and it continues to be of limited utility for acquaintance rapes, as I discussed in an earlier column.
For this reason too, feminists may have viewed statutory rape laws as a godsend. As long as there was sexual intercourse and an under-age victim, the jury could convict. And more importantly, that possibility itself might deter real sexual abuse.
* * * [Setting aside it's deficiencies, statutory rape] has (and may always have had) redeeming characteristics, even from an enlightened perspective that takes into account the realities of prosecuting rape and of women's equality. It makes it easier, for example, to prosecute and thus to deter real rapists who count on jury skepticism about acquaintance rape allegations.
For starters, Colb's referenced empirical study provides a faulty empirical basis for discussing the sexual behavior that statutory rape laws address. She fails to cite the study by name, so it is difficult to assess it directly. However, the statistics cited lead me to conclude that its findings are of little or no value in this debate. The statistics that Colb cites on their face concern girls 14 and younger. Such a statistic is bound to include activity that would be defined as pedophilia and would legally constitute child molestation, which would generally be prosecutable under other laws in the absence of any provision for statutory rape. Including such figures naturally perverts the inquiry if teenage sexual behavior is what is at issue.
Moreover, most teenage girls remain sexually inexperienced altogether at the age of 15. Alan Guttmacher Institute, Teen Sex and Pregnancy (Sept. 1999) So if we expand our consideration of the topic to the very earliest teens, we are talking about teenage sex at the margins. According to the aforementioned Guttmacher Institute Fact Sheet, "[w]hile 93% of teenage women report that their first intercourse was voluntary, one-quarter of these young women report that it was unwanted." In other words, the teenage sex involved in discussions of statutory rape is predominantly not "nonconsensual" as the law understands that term. Other studies convey much the same impression regarding female teenage sexual behavior. In short, the statistics that Colb cites are not terribly pertinent and appear to be rather alarmist and misleading as well.
But even if her empirical claims were accurate, her argument regarding the primary benefit of statutory rape (i.e., that it makes it easier to prosecute the crime of rape) is legally nonsensical. What separates statutory rape from rape is that the former requires no proof of force and/or nonconsent. This undoubtedly does make prosecuting allegations of rape easier, but only at the expense of redifining rape. Intentional tort claims would likewise undoubtedly be easier to bring if the requirement of demonstrating the requisite intent was eliminated; however, they would no longer be intentional torts, now would they? The same is true of statutory rape. In this sense, it is a perversion of sexual assault law to preserve statutory rape solely to render rape concerning teenage victims easier to prosecute.
If legislatures are worried about teenage females being preyed upon by older men, they can always truncate the scope of their consent via a "Romeo and Juliet" clause (i.e., a clause that excepts sexual relations amongst persons who are within a specified numbers of years in age of one another). However, the data reported in the Guttmacher Fact Sheet indicates that the average legal age of consent is descriptively inaccurate of female teenage behavior and that the average "Romeo and Juliet" clause is unduly narrow given female teenage sexual behavioral norms. In the Dixon case, there was a mere three-year age gap between the defendant and his alleged victim; Georgia has no "Romeo and Juliet" clause whatever. I fail to see the merits of penal laws that are completely out of step with actual behavioral norms, thereby rendering much blameless activity criminal.
Update I: Crescateer Amanda Butler has left a comment that suggests that, she for one, does not find Professor Colb's "open question" argument eccentric. She quips:
Eccentric enough to be one of the prongs on a hypo I had last year.
Of course, Colb herself is a law professor, so I am not too sure that the fact that an additional (unnamed) professor considers this an open question is much proof. Law school hypotheticals are often bizarre and unrealistic, purposely so in order to test a student's ability to apply settled principles to theoretically unsettled (and unsettling) scenarios. As one commentator observed regarding a similarly farfetched legal case:
Notes Weddington, "This one is destined to become a test question on various law school exams because it's so unusual and, some might say, weird."
But far be it from me to dismiss anothers concerns out of hand. I actually did a little Westlaw research. I failed to find a single law review article that addressed Colb's "open question" theory, let alone provided a detailed legal argument concerning it. That is, as near as I can tell, there is no serious legal scholarship on this issue. Given that Coker was handed down in 1977, the fact that no academic has staked his or her professional reputation on this theory in a scholarly article is some indicia of proof that it is not a serious position.
Moreover, the existing scholarship suggests that there is not much basis for Colb's contention. Colb's argument rests on the premise that that Coker dealt solely with the rape of women but not men. There is ample reason to doubt this. For example, discussing a Louisiana state court case, Meryl P. Diamond observed that:
The Wilson court looked at the language of Coker and stated that the plurality decision only applied to the rape of an adult woman because the Court had referred specifically to that classification of rape fourteen times. If one is looking at semantics, this argument fails because the Louisiana court neglected to count the times the Coker Court referred to rape generally, not just to the rape of an adult woman. See generally Coker v. Georgia, 433 U.S. 584, 586-600 (1977) (plurality) (using the term "rape," without the words "of an adult woman," over 20 times).
Note, Assessing the Constitutionality of Capital Child Rape Statutes, 73 St. John's L. Rev. 1159, 1174 n.82 (1999); see also Annaliese Flynn Fleming, Comment, Louisiana's Newest Capital Crime: The Death Penalty for Child Rape, 89 J. Crim. L. & Criminology 717, 737 (1999) ("However, the Court in Coker drew the line: if the perpetrator of the crime does not take human life, the death penalty is disproportionate.").
Admittedly, these two articles' critiques are, of course, just as applicable to the question of whether the fact that the victim is a child makes a constitutional difference. But in the absence of any reasoned argument in support of Colb's second purported open question, her proposition seems even more dubious in light of these observations. After all, dispensing with legal considerations and considering the matter as one of common sense, what is the likelihood of a court holding that rape of men is a capital crime whereas rape of women is not? Isn't to ask that question to answer it?
Update II: In the comments, James B. Shearer argues that:
. . . I believe a real benefit of statutory rape laws is that they allow for some punishment of forcible rapes which would otherwise escape sanction because of problems of proof.
Shearer's argument suffers from a lack of clarity in presentation. What he is maintaining is that the existence of statutory rape laws make it possible to punish people for rape when the state is incapable of proving the latter crime beyond a reasonable doubt. Once this argument is recognized for what it is, I believe that it refutes itself. Having observed the American criminal process in the courtroom, I cannot imagine why we should be eager to empower the state to punish citizens for crimes that it cannot otherwise prove. Difficulties of proof just as easily suggest that we be cautious about making prosecution easier for fear of placing innocent men behind bars on the basis of inconclusive evidence or false accusations. Statutory rape is a separate crime altogether and it must justify its own existence without reference to others. After all, when a defendant is convicted of statutory rape, society is condemning him for that act, not rape.
It would be easier to punish defendants for homicide in cases in which the appropriate mens rea was subject to difficulties of proof if we created a strict liability variant thereof as well. However, this would utterly alter our understanding of homicide. Statutory rape similarly distorts rape. Shearer suggests that stautory rape is akin to criminal offenses that render mere possession of burglary tools an offense. There is a problem with this analogy, however. Possession of tools that have a sole likely use of committing a crime is some genuine indicia of criminal intent. However, as the empirical evidence cited above suggests, there is little reason to suspect that female teenagers ages 15-17 cannot or do not consent to sexual relations with regularity. So statutory rape's empirical assumptions turn out to be false. We cannot safely conclude from the mere fact that a female teenager of the ages indicated had sexual relations that there was a lack of consent.
Finally, Shearer argues that the apparently undisputed actual behavior of teenagers should not be dispositive. He cites underage drinking as an example (i.e., the fact that it occurs should not lead us to legally allow for it). I'm not sure that this is a useful parallel inasmuch as the penalties both for minors in possession of alcohol and for adults who provide them with it are so trivial when compared to statutory rape. Moreover, I am not certain that Shearer gains much traction by referencing how society handles minors and alcohol. The current regime, under which anyone under 21 may not legally possess or imbibe alco
