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Capitalism and the Law: O'Connor Speech Puts Foreign Law Center Stage
It is my position that the purpose of the US Constitution is to animate the principles of the Declaration of Independence. Life, liberty, the pursuit of happiness and the Constitution--real easy stuff. Not so for US Supreme Court Justice Sandra Day O'Connor. Law.com reports:
Justice Sandra Day O'Connor received three standing ovations and a mounted glass globe this week when she gave a speech at a black-tie dinner for the Atlanta-based Southern Center for International Studies.
At the U.S. Supreme Court, however, O'Connor's message -- that American courts should pay more attention to the laws of other countries -- gets a much more mixed reception.
O'Connor pointed out that her colleagues rarely consider international law. But she did not mention how passionate the justices get when they debate whether foreign court decisions should influence U.S. rulings. The issue came up in 1988, when the justices voted 5-4 that executing a man who'd committed his crime at the age of 15 violated the Eighth Amendment ban on cruel and unusual punishment.
Showing an early example of her control of the court's center, O'Connor provided the crucial swing vote, writing separately to craft a narrower conclusion than four other justices who sided with the condemned inmate. But she did not criticize Justice John Paul Stevens' citation of international norms in favor of the inmate.
Referring to information presented by Amnesty International, Stevens wrote that a consensus against executing children was consistent with "other nations that share the Anglo-American heritage, and by the leading members of the Western European community." Thompson v. Oklahoma, 487 U.S. 815 (1988).
Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist and the late Justice Byron R. White, called Stevens' reliance on Amnesty International's assessment "totally inappropriate as a means of establishing the fundamental beliefs of this Nation."
"We must never forget that it is a Constitution for the United States of America that we are expounding," Scalia wrote.
"In the present case," added Scalia, "the fact that a majority of foreign nations would not impose capital punishment upon persons under 16 at the time of the crime is of no more relevance than the fact that a majority of them would not impose capital punishment at all, or have standards of due process quite different from our own."
On Tuesday night, O'Connor noted that recent decisions striking down Texas' antisodomy law and holding that executions of the mentally retarded violated the constitution cited as support foreign laws against both practices.
"I suspect that over time, we will rely increasingly -- or take notice at least increasingly -- on international and foreign law in resolving domestic issues," O'Connor told the 450 Southern Center guests at the J.W. Marriott Hotel.
Since, as CAC’s Skip Oliva pointed out to me, it is unlikely that O'Connor will rely on Africa or Asia to reach her decisions, we can expect a court influenced by European jurisprudence. The idea that US law could be decided by taking into account European legal customs is appalling. After all, I think it was in the third grade that I mastered the principle that pointing to what the kid across the street’s parents allowed him to do was not a valid argument.
Every legal decision in the United States should be able to be reduced to the core facts of reality that drive it. While most reasoning is implicit, no American court should permit itself the shortcut of considering the customs of others in reaching its own conclusions. Our courts should not be influenced by Europe—they should be influenced by reality.
::: posted by Nicholas Provenzo
at 7:55 AM | link
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Thursday, October 30, 2003 :::
The Culture: Ayn Rand's impact
I missed this when it first came out, but Caspar Weinberger praises William F. Buckley and attacks Ayn Rand at Forbes:
Getting It Right--by William F. Buckley Jr. (Regnery, $24.95)--continues Bill Buckley's series of turning the history (perhaps too narrow a canvas here) of 20th-century American politics into exciting novels. And, of course, the author himself is a participant in many of the incidents. In Getting It Right we see what Robert Welch, founder of the John Birch Society, and the impressive, puzzling and enormously influential (for a short time) Ayn Rand were really like. Rand's novels about the beginning of the conservative movement rivaled the Harry Potter novels in sales. Now it's hard to know quite why, as Rand's writing was unexceptional. Probably her loss of fame is because conservative thought and philosophies--so unusual at the time--have become so much a part of the conventional wisdom that her writings have lost their shock value. Welch and Rand had offshoots that had to be exorcised and dealt with before conservatism could be accepted. Buckley was the major force behind making conservatism appealing, understandable and respectable.
And pointless. Despite controlling the Congress and the White House, conservatives are ineffective at defending individual rights. Proof? The prescription drug bill alone is an indictment of conservatism. Practically any new expansion of government power is an indictment of conservatism. The failure to reduce even the rate of increase of one government agency is an indictment of conservatism. If this all can happen under the conservatives’ watch, just what does conservatism stand for that William F. Buckley deserves any credit?
Weinberger’s dig against Ayn Rand is all the more ironic when one considerers that she is mentioned in Forbes here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here. (William F. Buckley turned up in one other article, written, of course, by Casper Weinberger.)
But the real measure of a person’s impact--a Google search--revealed 49,000 hits for “William F. Buckley,” while a search for “Ayn Rand” produced 212,000 hits. And I have the nagging suspicion that Ayn Rand sold more books last year than William F. Buckley, despite the minor inconvenience of being dead for the past 20 years.
I’m sure in Weinberger’s circles, Ayn Rand has faded from view. And in my mind, that explains a lot.
::: posted by Nicholas Provenzo
at 10:22 AM | link
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The Culture: Political activism and political philosophy
You might not have known it, but a self-styled Objectivist ran for California governor. Darrow Clements, businessman and host of FreeNation.TV ran as a Republican. His website has him holding a copy of Atlas Shrugged and quoting Ayn Rand. Clements ran on a platform calling for limited government and political and economic freedom. So how many votes did Clements receive? 274. Only four candidates received less.
I do not know Mr. Clements; I can speak nothing to his intelligence or character. But as a political scientist, I can speak to his judgment: there was no point to his candidacy. It was, truly, an exercise in futility. Clements had zero chance of beating Gary Coleman, let alone winning. Yet by running, Clements made the classic libertarian error—he placed political activism before political philosophy.
And that’s not to say that Clements does not attempt political philosophy. I watched the sample TV pilot on his website, where he promises to tell "true stories of citizens battling government tyranny." He does deliver, but uses the usual libertarian anti-government premise and aims at the usual libertarian suspects. His lead story is the war on drugs.
I will admit that I admire the effort Clements’ puts into his TV show. On one level, I think it is courageous. It may even have potential. Yet at the same time, the pilot was infuriating for me to watch. Every libertarian goes after the drug war. And as much as I detest it, the drug war will never be the tipping point. One can never defend drugs as such; one must defend individual sovereignty. Clements attempts this, but he falls short: the drug war is not the place to defend tyranny against the mind. One can not defend the sovereignty of the mind to those who question it by holding up the irrational as an example.
The practical way to fight for the freedom is to defend the right of rational men to make rational decisions. It requires a broad understanding of philosophy to make such a case; one must understand how the mind works, its role in human existence and, as an activist, where most people make their errors regarding its use. Only then can one compellingly show that individual sovereignty demands that a person have unfettered ability to make every decision that affects his life. And while that would spell an end to the criminalization of drugs, that would only come as an after effect, a consequence of the larger respect for freedom.
The real fight in America is not excessive government—it is insufficient individualism. Yet by placing the libertarian crutch of anti-government whim-worship center, Clements misses his opportunity. He holds Atlas Shrugged in his hands, yet his activism is without sufficient foundation. And this is what really upsets me: I think Clements could have real potential if he navigates though his errors in philosophy. I wish him the best, but it remains to be seen.
::: posted by Nicholas Provenzo
at 1:55 AM | link
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Tuesday, October 28, 2003 :::
Antitrust News: Microsoft Settles 6 Suits for $200 Million
Microsoft Corp., the world's largest software maker, on Tuesday said it agreed to pay $200 million to settle class-action lawsuits filed in several U.S. states.
Under the settlements, eligible buyers of Microsoft's products will get vouchers that can be used to buy computer hardware or software. Half of any unclaimed vouchers will be used to buy computer equipment or software for schools.
Agreements were reached in Kansas, the District of Columbia, North Carolina, North Dakota, South Dakota and Tennessee. The class actions claimed Microsoft used its monopoly to overcharge customers for its software products.
Tuesday's announcement, brings the total number of consumer class action settlements over the past year to 10, Microsoft senior vice president and general counsel Brad Smith told reporters on a teleconference. The settlements are worth a total of $1.55 billion, Smith said. Class action lawsuits are pending in five states, Microsoft said.
The settlement is the latest in a string Microsoft has reached in recent years as it tries to clear up legal problems stemming from its antitrust battle with the government.
$200 million, eh? There's a lot of money to be made attacking Microsoft.
::: posted by Nicholas Provenzo
at 3:26 PM | link
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