Saturday, February 03, 2007

Non compos mentis ex post facto

Rightly reasoned

Extremist thought is pervaded by pseudo-scholarship. Conclusions are pre-ordained, so arguments need only the semblance of plausibility. The usual rhetorical tools include appeals to nature (e.g., “Even a superficial glance is sufficient to show that all the innumerable forms in which the life-urge of Nature manifests itself are subject to a fundamental law”) or sheer obviousness (e.g., “There are certain truths which stand out so openly on the roadsides of life, as it were, that every passer-by may see them”).

Both of these quotes are from Chapter 11, “Race and People,” of Mein Kampf. Hitler goes on to prove via his iron-clad deductions that Jews are an inferior mongrel race and deserve to be exterminated. Translator James Murphy found it necessary to use the words “obvious” and “evident” dozens of times in rendering Hitler's prose into English. Clearly it would be foolhardy to dismiss rhetoric so obviously based on the evidence of sweet reason. In just this manner, Hitler spun a pseudoscientific net of racial theories and Volks power.

Mein Kampf is the modern archetype of the radical screed and it may seem intemperate to invoke it in making a point about modern radical rhetoric. However, Hitler's book and its junior descendants are sprinkled generously about the Internet. Echoes of its specious logic are heard in the arguments of contemporary hatemongers. David Niewert of Orcinus has documented in great detail how today's extremists continue to employ language as a tool to dehumanize their targets and suggest that they are ripe for elimination. Today's targets include liberals, gays, and minorities. Oh, and judges.

Yes, judges are among today's extremist targets. Right-wingers complain incessantly about “activist” judges. It's understandable, because judges have frustrated the efforts of religionists to stick granite monuments to the Ten Commandments in court houses (in that case the leading religionist was also a judge!), prevented the imposition of thinly disguised creationism (“intelligent design”) on public school science curriculum, and mandated legislative relief to same-sex couples seeking equal marital rights before the law. Yes, it's a judicial reign of terror in the eyes of the arch conservatives. (Insignificant issues like warrantless wiretapping, summary imprisonment, and suspension of habeas corpus do not, however, ruffle their feathers at all.)

Judges were the focus of the presentation by Alan Keyes at the October 2006 celebration of the 10th anniversary of the founding of D. James Kennedy's Center for Reclaiming America for Christ. Dr. Keyes may be best known for his recent landslide defeat in a race for a U.S. Senate seat from Illinois, managing no better than 27% of the 2004 general election vote versus 70% for Barack Obama. Before his epic drubbing, Keyes held appointive positions in the State Department and as ambassador to a council of the United Nations. His on-line biographical sketch notes that he ran for president in both 1996 and 2000, which no one would remember if he hadn't mentioned it.

His greatest strength is probably his energetic speaking manner, but his speeches are replete with meretricious statements of “obvious” fact, as when he condemns judges for supposedly legislating from the bench. In his talk at the anniversary celebration for the Center for Reclaiming America for Christ, Keyes presented his bizarre theory that judges violate the constitution when they interpret or clarify law. Dr. Keyes inveighs against this judicial usurpation, as he sees it, by claiming that such rulings are contrary to the constitutional ban on ex post facto laws.

Do you follow that? Keyes says that interpretation of the law—a key responsibility of the judicial branch—is unconstitutional because it occurs after enactment of said law, resulting in an illicit after-the-fact gloss on the original measure. Does Dr. Keyes really believe that legislative intent is always so transparent that judicial review is patently unnecessary? That strikes me as ridiculous, although I must admit that I am no lawyer. But then, neither is Dr. Keyes. (His degree is in government, not law.)

I'm not making this up. Here he is in his own words, which you can hear for yourself in the middle (4:54) of the second segment of his talk*, archived at D. James Kennedy's Truths that Transform. His voice oozes contempt as he declaims these lines:
To give you just one further proof that this whole business—of the law being what the judge says it is—is nonsense, please remind yourself every now and again that ex post facto laws are unconstitutional: The law must be known before the offense is committed! Last time I looked, judges don't get involved till after the offense is committed, the offender is brought to court, and then the judge gets to say something. So all judicial decisions occur after that.

Am I wrong about that? I don't think so.

That would mean that every every judicial decision—if that's when we know what the law is—is an ex post facto law and those are unconstitutional! The law can't be what the judge says it is because the judge doesn't speak until after the fact, and in our system the law must be written before the fact, so it can be known and violated when the fact is established.

So again and again we see that this is a lie.

They're conspiring to throw the umpire out of the game. If D. James Kennedy and Alan Keyes and their fellow travelers get their way, and judicial review is abolished, what wonderful world will we then live in? The rules will be whatever the party in power says it is, and a creationist Christian utopia will blossom. That's obvious, right?

But ... wait just a minute. The thousand-year Republican majority was ousted from Congress last year. Keyes and others might yet be grateful that judicial review exists as Democrats take over the business of crafting the nation's laws. Ever think of that?

It should have been obvious.

*The link to the Keyes speech will probably not last very long, since Coral Ridge Ministries continually updates their on-line archives and retires older clips. In the future, however, the organization plans a massive digital library that will make the entire Coral Ridge Ministries archives—over thirty years of material—readily available. I wonder whether the impact of that archive will benefit Kennedy's movement the way he obviously expects it to. Many of the things said from the Coral Ridge platform would be best buried and forgotten.


Danilo said...






Russell Blackford said...

Well, there's a grain of truth in this. Liberty is best served if the law is written as clearly as possible and judges have as little scope as possible to interpret it in some idiosyncratic way. It's best if we all know where we stand, i.e. know what the law means before we make decisions about how to act, and long before a case gets to court. In the ideal world, judges will be fact-finders (or be there to assist juries in jury cases). As they say, judges apply the law to the facts.

Of course, it can't be entirely like this in practice. The cases that actually make it to court are likely to involve either murky issues of what actually happened (questions of fact) or murky issues of what the law actually means (questions of laws) - or even murky issues where the law is not yet settled and judges need to make law. Most legal theorists these days accept that judges do, in fact, make law and have always done so ... though there are good reasons for them to do so only in a cautious, incremental way.

Whether a judge is being "activist" in a bad sense is always going to be a matter of ... er, judgment. I think that that judgment can sometimes be made quite fairly, though I damn sure wouldn't be trusting this guy you're describing to be the one to make it.

Zeno said...

The "grain of truth" is crucial, Russell, because it's under cover of that truth that the much bigger lie gets delivered. If Keyes had simply said, "I don't think that judges should be allowed to judge because some of them might go too far," no one would take him very seriously. Instead, though, Keyes dramatically applies his rhetorical talents to inflate this nonsense into the semblance of a logical conclusion. And the attentive crowd of right-wingers goes nuts with applause and adulation.