Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? The Boogeyman Cometh

Crisis and Command: A History of Executive Power from George Washington to George W. Bush is remarkable only for its author, John Yoo. Yoo famously worked for the Department of Justice from 2001 to 2003 and wrote memoranda providing legal justification and authority for the torture of captured terrorism suspects. Yoo is also slightly less famous for his opinion that the president, in his capacity as commander-in-chief of the military, somehow gains additional powers during wartime that cannot be checked by Congress. Sure, this opinion has no evidence to be found within the Constitution, but that hasn’t stopped Yoo from continuing to espouse this incorrect and dangerous view of near-total executive authority.

Yoo appeared last night at a meeting of The Commonwealth Club of California, a forum where political and social personalities can give speeches and answer questions (and promote their books). Outside the building were a bevy of protesters calling Yoo a torturer and demanding that he be fired from his job as a law professor at the University of California, Berkeley’s Boalt Hall School of Law.

Yoo’s hour-long speech and Q&A was interrupted about half a dozen times by protesters standing up and shouting at him that he was a torturer, that his victims will get their justice, that he’s a murderer, etc. The forum’s moderator, Stanford Law School professor Allen Weiner, insisted that we keep this civil and not resort to “self-indulgent theatrics.” I quite agreed with him, actually. Honestly, who did these people think they were talking to? If John Yoo thinks he’s responsible for torture, then he already knows it. If he doesn’t think he’s responsible, then the Harvard- and Yale-educated lawyer isn’t going to be persuaded by some people yelling at him. Plus, I paid $12 to listen to John Yoo try to justify his opinions about torture, not to listen to protesters scream.

Anyway, Yoo’s book. In a nutshell, it is about how presidents assuming authority during crisis situations isn’t anything new. Yoo’s philosophy is very deferential to the executive branch; in telling a story about George Washington and the Senate, he insinuated that the Senate was composed of egotistical demagogues who would rather give speeches than get anything done. While that may have been (and continues to be) true, it doesn’t justify seizing power from Congress all in the name of getting things done.

According to Yoo, “good” presidents “fully utilize the powers the Constitution grants them.” He then proceeded to talk not about how presidents used powers granted to them by the Constitution, but about how presidents have taken power in the absence of either Congress taking power first or Congress making a swift decision. This is one of the flaw’s in Yoo’s argument: the examples he gives are of presidents operating in an area of ambiguous power; far from utilizing powers granted to them by the Constitution, people like Washington, Lincoln, and Franklin Roosevelt took power that was not explicitly granted to them. He made reference to a president’s “commander in chief power,” apparently unaware that those powers do not grant a president carte blanche to do whatever he pleases all in the name of expediency.

He takes a dim view of Congress; Yoo would rather have a powerful executive that acts quickly instead of a deliberative body that takes a long time to make decisions. In this regard, he seems to be both a poor historian and a poor lawyer. Slowing down the decision-making process was the whole point of requiring decisions to go through two houses of Congress and a president. That is why Congress, and not the president, is granted sole authority to declare war; the authors of the Constitution wanted a declaration of war to be discussed before it happened, not signed at the whim of a single man. In Yoo’s perfect world, the opposite would be true.

Yoo seems to think there are three classifications of presidents:

1. Good presidents seize power that is not theirs, and good outcomes result.
2. Bad presidents do not seize power when they should, and bad outcomes result.
3. Bad presidents seize power that is not theirs, and bad outcomes result.

Pretty much, the ends justify the means. James Buchanan was a bad president because he didn’t declare war on the South when he could have. Richard Nixon is a bad president because his use of extra-constitutional powers ended badly. But Abraham Lincoln comes out smelling like roses because his use of extra-constitutional powers ended up going well for the United States. Of course, this requires the question, how do we know that good outcomes will result when a president takes power that is not his to take? Yoo didn’t have an answer to that; I do. The answer is, “If the Constitution doesn’t permit you to do it, then you can’t do it.” It’s really quite simple. He chided James Madison for not declaring war on Britain in the War of 1812; Madison didn’t think he had that authority. Why would Yoo think that Madison did have that power? There is no place in the Constitution where the president is granted the authority to declare war; only Congress has that ability. And Madison would be in a position to know what the Constitution said; he wrote the thing, after all.

Yoo’s expansive view of presidential power is not only startling in itself, but it’s startling that it’s so poorly argued. Again, Yoo went to Harvard and Yale. You’d think he’d be better at this. And as a lawyer, you’d think he would care more about the actual language of the Constitution rather than what Yoo would like the Constitution to say. Frighteningly, he dismisses the notion of due processes for terrorism suspects, suggested that our only options are torture and “reading them their Miranda rights.” I expect such a pejorative statement about one of our civil liberties from Sarah Palin, who is untrained in the law and in understanding the Constitution in general, but hearing a Justice Department lawyer speak so scornfully of an important right makes me queasy. If he doesn’t want to enforce that right, then what other rights does he think don’t need to be enforced?

After the speech, Weiner asked Yoo a few questions, both of his own and those that were submitted by the audience. He first took Yoo to task for mentioning only those usurpations of authority that ended well, instead of the ones that ended badly. He cited examples of people who were imprisoned for “sedition,” that most famously ambiguous and jingoistic of charges, for speaking out against World War I. Yoo responded that he did, in fact, mention people like Franklin Roosevelt, who ordered the interment of Japanese Americans during World War II, or Andrew Jackson, who forcibly removed Indians from their own land. “The Constitution doesn’t protect against bad decisions,” he said. I submit that it does: in the form of the deliberation I mentioned above. By requiring that decisions go through several people before being made, the Constitution tries to minimize the damage caused by people making bad decisions.

Then came the torture talk. Yoo admitted that he is not above the law, and if the Obama administration wanted to pursue criminal charges against him, it would be free to do so. Of course, no administration will willfully prosecute former administration officials; that would invite a precedent that people in power do not want. He invoked the spectre of September 11, saying that the War on Terrorism is a different war that required different tactics.

And then he said something interesting. Yoo said that he was merely doing his job. His office was asked by the CIA to decide whether or not they would be able to do certain things to high-value terrorism suspects. Yoo was tasked with coming up for a legal framework for it. Now, it’s highly probable that Yoo merely told them what they wanted to hear, or that they wanted a cover-your-ass type of legal justification. But at the end of the day, Yoo merely provided legal advice to his client, the United States. It was up to the people in power to decide whether or not to implement that advice. Yoo is not the boogeyman that he has been made out to be. While his justification of torture is evil, there are more evil people than him; namely, the people who made the decision to put that advice to work. To see Yoo, he is ambivalent about the torture issue. And he is ambivalent because he doesn’t think he actually did anything wrong. In his mind, he was merely providing advice; the truly bad people were the people who implemented the policy when they could have not implemented it.

And he’s sort of right. While Weiner criticized his memos, saying that any first-year law student would recognize them not as legal memos but “advocacy briefs” that didn’t advise his client about the legal policy risks, at the end of the day Yoo is not the most responsible party here. He was asked for legal advice, and he provided it. Yes, the advice was poorly defended, and yes, it is morally reprehensible for implicitly authorizing torture, but ultimate responsibility rests with the people who took that advice: the president, vice president, attorney general, et al.

This requires the question: should John Yoo be prosecuted for torture, as the protesters wanted? Consider the scenario if Yoo were a lawyer in private practice, advising a client. He may be guilty of shoddy lawyering, but determining actual malice would be hard, given that he can bring a defense that he was giving advice and doing his job like he should have been. (And let’s not start making hyperbolic comparisons to the Nuremberg “I was just following orders” defense; those people materially killed people. As in, performed the action. Yoo, not so much.) At the end of the day, Yoo is nothing more than a sub-par lawyer trying to imprint upon the Constitution a broad interpretation of executive authority that just isn’t there. While he mentioned that the founders of the country abandoned the Articles of Confederation in favor of a stronger central government, he ignores the debates they had about still having a limited government; fresh from their experience under a king, they didn’t want to be ruled by a strong executive again. Hence Congress’ ability to declare war and not the president’s, for example. And let’s not forget that the buck stops with President George W. Bush and former Attorney General John Ashcroft, who both signed off on these memos. While Yoo may have given them advice, they are the ones who took it and implemented it.

Oh, Massachusetts!

There’s sure been enough harsh talk around the health care bills coming out of the House and Senate – and I mean from people who support universal health insurance – forget the Tea Baggers and the Rush Limbaugh audience for the moment. On the one hand, you’ve got people calling for unseating Representative John Conyers because he voted for the final House bill – and he was the prime sponsor of the single payer bill! On the other, there’s people dismissing any objections to the bills’ shortcomings as the cavalier nitpickings of a privileged group that already has health insurance and doesn’t really care much about anyone else who doesn’t. But the hyperbole crown has got to go to the blogger who produced the headline “Raul Grijalva Flirting With History’s Greatest Monster Status.” And what crime did the Arizona Representative and Congressional Progressive Caucus Chair commit to join the ranks of Hitler, Stalin, and Attila? Why, he said that instead of passing the Senate bill as is, the House should send the Senate smaller individual bills that wouldn’t include items such a tax on pre-existing health insurance plans. Imagine that!

The voters of Massachusetts have lately become notorious for forcing a total tactical regrouping on the national health care debate by electing a Republican to finish Ted Kennedy’s Senate term. But the politics of that New England state also hold some interest in this debate in a largely unrelated way – the similarity between the ongoing quandary faced by advocates of expanded government services there and the dilemma that the current national health bills have posed for supporters of health insurance reform.

The “Massachusetts problem” stems from the fact that it is not only one of just seven states in the nation with a “flat” income tax but it also has a constitutional prohibition against establishing a graduated income tax – i.e., the kind we’re all familiar with on the federal level, with rates that climb in higher income brackets – and numerous efforts to amend the state constitution have failed. The flat income tax, combined with the state’s sales tax, has the effect of making the state’s overall tax structure regressive, which seriously hinders any attempted redirection of resources within the state. You may be able to steer services and goods to the poor, but the money to do so will come from the middle rungs on the economic ladder and not the top. The Massachusetts dilemma, then, has generally boiled down to this: Do you ignore real needs or do you address them in a manner likely to eventually lead to a “middle class” taxpayer revolt such as the state’s 1980 “Proposition 2 ½” property tax limitation or California’s more famous Proposition 13.

The national health care debate has faced no similar constitutional barriers, but the political barriers have proven every bit as formidable. The President and congressional leaders could have put forth a bill offering a more serious solution to the problem – whether single payer, another type of universal nonprofit health insurance, a government-run health care system, or something else entirely – but they chose not to. The $20 million in campaign contributions the health care industry gave Barack Obama (nearly three times the amount given John McCain) may not have in themselves bought a non-health insurance industry-threatening proposal, but it was probably at least a good predictor of the type of bill we would ultimately see.

So far as the debate within the left goes, both sides might do well to simply concede the other’s central point: It is both true that the bills that came out of Congress would expand health insurance coverage significantly, although not universally, and that they would not fundamentally alter the expensive and wasteful private for-profit health insurance industry that lies at the root of the problem – except to further entrench it by mandating the purchase of its services.

If we’re willing to grant the significance of both the bills’ strengths and their weaknesses, we might find ourselves then able to sympathize with the votes of both of the individuals who are arguably the most left-wing members of each congressional branch, even though they voted the opposite way: Senator Bernie Sanders was a “Yes” when one more “No” would have brought the Senate discussion to a halt, while Representative Dennis Kucinich voted “No” when there were a few House votes to spare and he could thereby highlight the vast gulf between the bill as it was and what it ought to be.

Just a couple of weeks ago, concern about the potential downside of passing the Senate or House bill as currently written might have been dismissed as academic, but it can’t be now – or at least it shouldn’t be. And for the fact that we now know that, we are indebted to MoveOn.org and Democracy for America for having the foresight and wherewithal to secure the services of the Research 2000 polling company to ask a few questions of the Massachusetts electorate. What they found was so at odds with the general “anti-big government” or “anti-insider” interpretations that dominate the mainstream media as to demand the closest attention from anyone with a serious interest in finding a real solution to America’s health care problems.

The poll’s target group was people who had voted for Barack Obama for President but did not vote for Martha Coakley, the Democrats’ Senate nominee; and further divided into those who had actually voted for Scott Brown, the Republican winner, and those who stayed home. When asked if they favored or opposed “the health care reform proposal recently passed by the U.S. Senate,” not terribly surprisingly, both groups opposed it – the Brown voters by a 48–32% margin and the non-voters by a 43-34%. And here’s where things veered from the accepted norms of political discourse: when those opposed were asked if they thought the Senate bill “goes too far or doesn’t go far enough,” the 2008 Obama voters who’d taken a pass on the Massachusetts election said it didn’t go not far enough, by 53-8% margin. And so did those who voted for Obama in 2008 and Brown in 2010 – by a 36-23% margin!

And just so there wouldn’t be any misunderstanding as to what going “far enough” might mean, the pollsters also posed the question “Would you favor or oppose the national government offering everyone the choice of a government administered health insurance plan — something like the Medicare coverage that people 65 and older get — that would compete with private health insurance plans?” Both groups said yes – the Obama voters who stayed at home by a 86-7% margin and those who came out and voted for Brown by 82-14%.

Probably we shouldn’t entirely blame the mainstream pundits for the difficulty of incorporating the results of this poll into the national analysis. The fact is that the poll’s results are counterintuitive – people just don’t expect voters who felt the Senate health care bill did not go far enough to vote for a Republican. Counterintuitive, but true, however. Undoubtedly, some will simply reject the messenger like one woman who described her response to reading the MoveOn data thusly: “All I could do is roll my eyes. This is the second time I’ve been ready to unenroll.”

Others may find fault with the electorate itself, like one who thought, “I guess people do not measure the consequences of their vote.” But voters must deal with the choices they are presented as best they see fit (or stay at home) and the choices they have are not always logical. After all, there was no candidate on the Massachusetts ballot advocating going further than the Senate bill, now was there? It’s not just the voters who need to deal with the consequences of their actions – so do the members of Congress who gave us the bills currently at hand.

On January 1 of this year, a Rasmussen Reports poll found voters nationwide opposing the Congressional plans by a 58-39% margin. The poll also found a majority opposed to a single-payer health care system by a 52-34% margin. In other words, the spread against the Congressional plan – 19 points – was greater than the 18 point spread against a single payer plan, even though single payer has never had the benefit of so much as a single Congressional hearing or vote! Although it was dismissed as a non-starter from the outset, at this juncture it’s hard to see how the White House and Congressional leadership would have done worse if they’d had the political will to stand up to the insurance industry with a plan of which the President once said, “The truth is that unless you have a what’s called a single-payer system in which everybody is automatically covered, then you’re probably not going to reach every single individual.”

Opponents would have derided it as “big government,” to be sure, but it would have had the substantial asset of offering an actual solution to a major problem. Instead, the Democratic leadership chose to offer another type of “big government” solution, one that would involve ever more complex regulation of potential insurance company abuses, along with subsidies to allow lower income individuals to pay the bloated premiums those companies demand. And that’s big government that we can’t all believe in. As they’ve long known in Massachusetts, there’s consequences to these things.

Full disclosure: Tom Gallagher, Demockracy senior writer and columnist, served six years in the Massachusetts House of Representatives.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Speech Is Free — If You Can Afford It

It is a peculiarity of history that, in the United States, corporations are considered “persons” to the same degree that flesh-and-blood human beings are considered “persons” under the law. In 1886, the U.S. Supreme Court made an innocuous ruling in an unimportant case, Santa Clara County v. Southern Pacific Railroad. The issue at hand — in a new Constitution, California denied railroad companies the right to deduct mortgages from the taxable value of their property — is fairly unimportant. The court reporter, J.C. Bancroft Davis, wrote a note for the headnote of the opinion: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Curiously, none of the justices had ever said this; Davis took it upon himself to include this sentence in the headnote, which later became part of the opinion. From then on, all courts could cite this sentence as approval on the Supreme Court’s part that a corporation is a “person.”

A look at the ruling

This week, we found ourselves faced with Citizens United v. Federal Election Commission, a case that should not have had to deal with corporate personhood, but which, nevertheless, has upheld some truly nefarious practices as being completely legal, in spite of their resoundingly negative public policy implications. Just as the Dredd Scott decision upheld slavery even though there was no finding in law for such a practice, the Supreme Court yesterday upheld corporate personhood even though it has no basis in law. (And, for the record, I am not suggesting that slavery is morally equivalent to corporate personhood. Put your pitchforks away.)

The case begins in January, 2008, when the nonprofit corporation Citizens United released a documentary about then-candidate Hillary Clinton, titledHillary. The Bipartisan Campaign Reform Act of 2002 (hereafter, BCRA) prohibits “electioneering communication” within 30 days of a primary election or 60 days of a general election. BRCA also prohibits corporations and labor unions from using their general treasury funds for “express advocacy,” which is explicitly encouraging voting for or against a named candidate. Express advocacy is determined by the “appeal-to-vote test,” which is described in BCRA.

With every grant of certiorari, the Supreme Court publishes a list of “questions presented” for a case. These questions limit the scope of the discussion. In the case of Citizens United, the Court wished to deal with only four issues:

1. Whether “disclosure requirements” for “electioneering communications” were resolved by the previous challenge to BCRA, McConnell v. FEC;
2. Whether the disclosure requirements impose an “unconstitutional burden” on communications that are not express advocacy (the appeal-to-vote test);
3. Whether the parameters of the appeal-to-vote test are clear enough;
4. Whether the Hillary movie is subject to regulation under BCRA’s “express advocacy” restriction.

If you didn’t notice the words “free speech” and “constitutionality of BCRA,” then you’re not alone. This case was never about the constitutionality of the BCRA per se; it was always about whether or not Hillary was electioneering communication. Period. End. I have always been of the opinion that it was not, since a documentary that casts Hillary Clinton in a negative light is not necessarily an entreaty to vote against her.

In addition to limiting when electioneering communication could take place, BCRA placed limitations on the amount of money that could be donated to political parties. Referred to as soft money, these donations were theoretically limitless before BCRA; the point of the legislation was to protect the political process from undue financial influence. BCRA also prohibited corporations from funding political advertisements, which is why, in the 2004 election, so many single-issue groups popped up, like Swift Boat Veterans for Truth. These “527 groups” (so named for the section of BCRA that allowed them to exist) filled the void left by corporate-sponsored political ads.

Justice Anthony Kennedy and the conservative wing of the Supreme Court disagree with all of this. From the outset, they decided that the case could not be decided without bringing the First Amendment into play. As such, they broadened the scope of the case from the four questions presented above to include the constitutionality of the BCRA’s spending limits.

The ruling comes in sixty-five-dozen parts. Hillary does constitute “express advocacy” under the BCRA and is therefore illegal. However, the free speech implications of BCRA must be looked into; specifically, the corporate expenditure ban. Kennedy, et al. suggest that, while limitations on corporate expenditures do not constitute prior restraint per se, the complexity of the regulations are tantamount to prior restraint (the legal term for censorship). Therefore, § 441b of BCRA — the part limiting corporate expenditures — is unconstitutional because its “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” This means that the restrictions on campaign expenditures by corporations upheld in 1990’s Austin v. Michigan Chamber of Commerce — for the purpose of preventing unfair corporate influence — is overruled. So much for stare decisis.

Some speech is freer than other speech

Throughout the opinion, Justice Kennedy cited the First Amendment and the need to prevent censorship as the reason for the ruling. The implicit argument is that any regulation of speech amounts to prohibition of speech. Corporations were not permitted to use general treasury funds to finance candidates or messages. They were, however, permitted to form their own political action committees (PACs). This is exactly how nonprofit corporations are currently required to work: in exchange for tax-exempt status, nonprofits (which include churches) cannot use their general treasury funds to lobby for candidates or legislation. But they can form affiliated lobbying organizations, so long as the money for the political organization does not come from the tax-exempt organization. (For example, the ACLU is not tax-exempt because it lobbies for candidates and legislation; however, the ACLU has an affiliate organization called The ACLU Foundation that is tax-exempt.)

Whither nonprofits? If for-profit corporations cannot be limited in the amounts of their expenditures, why should nonprofits be so limited? Whyshouldn’t churches be able to implore their congregations to vote for this candidate or that candidate? Under Citizens United, such a restriction amounts to censorship.

The majority opinion also ignores the “reasonable restrictions” that have always been placed on speech. These restrictions limit the “time, place, and manner” of speech because, to use the textbook example, yelling “Fire!” in a crowded theater could lead to people’s deaths. Religious organizations cannot proselytize in airports because — guess what? — airports are not a “public forum.” (Interesting fact: due to the language of the California Constitution, California is the only state in which a public shopping mall is a “public forum.”) You can shout all you want on a street corner, but your ability to use a megaphone can be restricted by law due to the nuisance a megaphone causes. Corporations themselves are even restricted in advertising; “commercial speech” must be true, so that a company cannot make outrageous claims about its product or use advertising to slander other products. All of these “reasonable restrictions” are in place to balance the free speech needs of a speaker with the needs of government to protect the rights of others.

Using the Constitution to rule on issues of corporate personhood is stupid on its face; the Constitution does not deal with the issue, and neither did the authors of the Constitution anticipate that corporations would need to be governed in such a way. Using the trope of a “person” to describe a corporation is advantageous in that it bestows upon the corporate entity the ability to file lawsuits. But the Constitution is ill-equipped for the job of deciding whether or not a corporation is a person. This is where, contrary to Chief Justice Roberts’ statement that justices are like umpires, the Supreme Court needs to make up the law. In the absence of guidance from the Constitution or from Congress, the Court becomes an instrument of public policy, and it can use that power for good or for ill. Specifically, the Court can decide to do what is best for the nation. In this case, it has not. Speech is not protected by allowing corporations — who, again, can neither vote nor hold public office — to influence elections. We do not allow non-citizens to vote, but nor do we allow them to donate money to campaigns (with the exception of permanent residents, which is a poor idea that should be changed) or hold public office.

The majority would like this case to turn on the issue of free speech, but more basic than that, it should turn on the issue of whether or not corporations areentitled to that freedom. I submit that they are not. The ball is now in Congress’ court to craft a statute that limits the rights of corporations and affirms, once and for all, that they are not “persons” the same way that flesh-and-blood humans are “persons.” Thomas Jefferson, et al. believed that humans were entitled to fundamental rights by virtue of their status as reasoning beings. Corporations cannot reason; they have no mind of their own. They are no functionally better than sock puppets, and the last time I checked, Kermit the Frog was not allowed to donate money to a political campaign.

Corporations’ rights must be limited and enumerated. While it is convenient for them to have some of the rights of human beings, it is not necessary — nor is it good for the public at large — for them to have all of the rights of human beings.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Haiting Haiti?

The entire world was brought to its knees in horror earlier this week as Jeff Zucker, I mean the tiny island country of Haiti, experienced a colossal 7.0 earthquake considered by many to be one of the worst in recorded history. The quake has taken as many as 100,000 lives and left many devastatingly poor Haitians uncertain about their future.  In addition, with the island’s already ramshackle water system badly damaged, clean water is  nearly impossible to find and waterborne disease could easily kill as many people as the quake as tens of thousands of victims are forced to scrounge for water in spoiled cisterns.

Naturally, the outpouring of global sympathy in the form of monetary donations, particularly in the form of text messages, has inundated this heartbroken region and will hopefully continue beyond the immediate aftermath.

So one would expect Pat Robertson, a man of the cloth and self-appointed spokesmen for Jesus, to lift the spirits of these poor unfortunate souls with some heavenly compassion.

Yes, according to Pastor Pat, the earthquake wasn’t brought on by a country resting on geological fault lines with a natural propensity for earthquakes. No, instead, it was a giant red devil that caused this disaster. Well, at least homosexuals and feminists were in the clear for once.

In the event that you’re head did not just spontaneously combust, allow me reiterate Pat Robertson’s explanation for this week’s horrific earthquake:

“Something happened a long time ago in Haiti, and people might not want to talk about it,” he said. “They were under the heel of the French … and they got together and swore a pact to the devil. They said, ‘We will serve you if you’ll get us free from the French.’”

“True story. And the devil said, ‘OK, it’s a deal,’” Robertson said. “Ever since, they have been cursed by one thing after another.”

For those of us with a fully functional cerebral cortex who are not permanent residents of Kookistan, what  actually occurred in Haiti near the turn of the 19th century was quite historic. In the 1790s, having witnessing the French Revolution, Toussaint L’ouverture inspired a successful slave rebellion against the French in the Haitian Revolution. The insurrection proved so powerful that it directly led to France selling most of its territories in the New World, or the Louisiana purchase, and inspired networks of American slaves to contemplate their own rebellions right up through the Civil War.

However, to be fair,  I actually consulted with a lawyer with respect to Pat Robertson’s claim and it seems that it was completely null:

First, it was NOT signed in blood. That maybe old fashion but that’s the rules. Second, NO blood sacrifice clause. Considering how long they have suffered, I think this a big loop. Third, NO certification about who won the fiddle contest.

So, using my expert source, it seems that Pastor Pat is miserably uniformed.

But in all seriousness, I strongly urge each and every one of you to take two mouse clicks or QWERTY keypad buttons and donate as much as you can to the suffering people of Haiti. I realize that many of you are skeptical about whether this money is actually going through the proper channels and reaching the right people, which is why I urge you to never text “madoff” to any charity whatsoever.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Proposition 8 Gets Kicked Up a Notch

A quick recap. In May 2008, the California Supreme Court ruled that the California Constitution requires that same-sex couples are entitled to “marriage” just as much as heterosexual couples. Soon thereafter, opponents of the ruling began the process of placing a proposed constitutional amendment on the November ballot, which would explicitly prohibit same-sex marriage. The ballot initiative was placed on the ballot as Proposition 8 and passed by a disturbing margin. Same-sex marriage proponents went to court in an attempt to argue that the initiative marked such a fundamental change in civil rights protections in California that it should be considered a revision, not an amendment. The California Supreme Court disagreed.

And now we’ve reached U.S. District Court for the Northern District of California, the Honorable Judge Vaughn Walker presiding. Judge Walker is a fan of the law, not of politics. He has shown that he has no qualms about ruling against the Bush administration when it comes to warrantless wiretapping; however, once Congress passed a law granting the administration immunity from prosecution, Judge Walker was forced to dismiss the case. Whatchagonnado, eh? (Michelle Malkin has unsurprisingly called Judge Walker a “liberal activist judge” despite his being a Republican. You stay classy, Michelle.)

Judge Walker heard oral arguments this morning in Perry v. Schwarzenegger, in which Judge Walker will decide whether or not Proposition 8 violates the federal Constitution’s Fourteenth Amendment guarantee of equal protection and Fifth Amendment guarantee of due process. A motley crew of litigants will appear before Judge Walker, including former U.S. Solicitor General Theodore B. Olson, a George W. Bush appointee, who will be arguing against Proposition 8.

Judge Walker wanted the trial broadcast on YouTube, but the U.S. Supreme Court, which has ultimate jurisdiction over all federal courts, blocked the coverage.

The trial is a very big deal for civil rights advocates. If the case were to make it to the U.S. Supreme Court (which it will no matter what; neither side would fail to appeal if it lost), every state statute and constitutional amendment forbidding same-sex marriage would hang in the balance, as would the federal Defense of Marriage Act, which prohibits the federal government from granting the rights of heterosexual marriage to same-sex couples.

Highlights from the oral arguments include Judge Walker wondering why the state even needs to be in the business of regulating who can marry whom, and how anti-miscegenation laws were once believed to be just as valid as anti-same-sex marriage laws are today.

Charles Cooper, speaking on behalf of Proposition 8, framed the defense this way: the voters approved it, so it’s the law now. And same-sex couples have California’s domestic partner statute, which explicitly states that no right given to married couples by the state can be denied to domestic partners. Cooper also argued that same-sex marriage laws are different from miscegenation laws because the former are designed to preserve “traditional marriage.” Cooper then raised the spectre of marriage being “pro-child,” but curiously does not address why, if that is true, the state does not require fertility testing as a condition of obtaining a marriage license. Clearly, if one of the state’s reasons for regulating marriage were to promote mating, then it would not permit infertile couples to marry. This issue is often not addressed by proponents of the marriage-is-for-children argument.

How could this end up? Lots of ways. Assuming that marrying someone of the same sex is a right (and, indeed, assuming that marriage is a right at all), the amendment is unconstitutional on its face. It denies “equal protection of the laws” to same-sex couples and denies them “liberty” without “due process of law.” The appropriate avenue for this to be legally supported would be the same way that anti-miscegenation laws were struck down.

The court could rule a different way; namely, that same-sex marriage is not a right. This would be difficult to support, given the fact that sexuality — like skin color, gender, or ethnicity — is clearly not a choice. It should also be disturbing to Judge Walker that the California Constitution allows a simple majority to deprive a minority of “life, liberty, or property” without “due process of law.”

The trial continues.