THIS LOOKS EXCITING

Crooked Timber. With Henry Farrell, Maria Farrell, and Chris Bertram, among others. Interesting.

BTW, they're not up and running yet, so seems I've let the cat out of the bag, or something. Sorry!

Happy Fourth.

This year's best Independence Day message is here.

SKEPTICISM

"Phillipe de Croy" is skeptical about the administration's secret military tribunals:

I’d like some more sunlight. And I hope that the courts may share some of my skepticisms if these prosecutions are challenged there.

What he neglects to note is that the track record of courts so far with respect to the war on terrorism hasn't exactly been encouraging -- it's been mixed at best, and pretty dismal at worst. For example, the Fourth Circuit has pretty much done whatever the administration wanted; even the recent pro-Moussaoui ruling contained hints that this was a procedural issue and that the government would get a sympathetic hearing if it defied the trial judge.

The Fourth Circuit is not an historical aberration. Courts generally haven't been willing to challenge the executive during wartime. Think WWI Sedition act cases. Think Quirin and Korematsu. There are a few celebrated exceptions (like Merryman), but upon closer inspection they seem ineffectual and rare. National security justifications are powerful claims and courts are extremely reluctant to challenge the executive when the executive raises them. If there is going to be a serious challenge of national security claims, it will have to come from Congressional and public criticism of the administration's overuse of them. That's a tough road. And it's a road that's not made any easier by complacent claims that civil liberties have actually fared quite well since 9/11 -- a claim made by de Croy's co-conspirator Orin Kerr:

And despite all the news coverage to the contrary, there have been no major losses of civil liberties, either. By my count, there haven't been any law enforcement abuses directly attributable to the Patriot Act in the 20 or so months since it was passed (at least that we know about). Probably the most troubling area has been immigration and detention practices (see, e.g., here); troubling indeed, but on the whole probably less severe than many expected.

In terms of shaping public opinion -- again, the necessary task if the administration is going to be challenged here -- emphasis matters. And the administration has been smart here, pursuing relatively weak members of society and shying away from many of the more controverial liberty-restricting proposals that could earn them majoritarian ire. Kerr may be right that civil liberties haven't fared as bad as some predicted, but it's going to be hard for him to turn around and raise a fuss about secret trials. Hard, but not impossible.

INTELLECTUALS IN THE MIDDLE EAST

Qantara has an overview of reactions by Arab intellectuals to the Bush administration's policies in the region, written by Amr Hamzawy, a professor at the Free University in Berlin and guest professor this year in Cairo. Here are the main conclusions that Hamzawy comes to:

Three main points can be gleaned from the remarks made by reform-oriented intellectuals. Firstly, they are all trying to position themselves with regard to a powerful global discourse about their region. Whether they agree with the Americans or qualify their proposals, the majority are convinced that the key ideas highlighted by the Americans are essentially correct.

Secondly, unlike earlier Arab debates, the emphasis on the democratic ideals of the USA and/or the West now constitutes an important pillar of reformist thought. Despite some critical remarks on the West’s Middle East policy, the reformers are beginning to realise that the countries in question are pluralist nations whose foreign policy actions are continually being questioned and monitored by state and civic control bodies. The Arab public’s previously undifferentiated image of western societies as a homogenous entity would appear to be crumbling in places.

Thirdly, there is a clear renunciation of the previously widespread belief in the nation state as the motor of social modernisation. Reform-oriented intellectuals place much less trust in the creation of liberal state structures than in democratisation and transformation projects initiated by civic society. Hopes are now pinned on human rights organisations, women’s movements and youth associations.

On the whole, the overview is cautiously hopeful: to the extent that American political and economic reform efforts represent a serious long-term commitment on the part of the U.S., Hamzawy claims that they are getting a hearing because they resonate with a felt need among reformist elements and their growing ranks of followers. Hamzawy actually has some very kind words for the Bush administration's long-term development and engagement plans -- although the strong implication of Hamzawy's argument is that hawkish policies will be counterproductive.

Qantara has a free e-mail newsletter (in English, German and Arabic) that I recommend. It's mostly focused on German-islamic dialogue, but as Hamzawy's essay shows, their essays are often intended to have a broader focus.

INDONESIAN BLOGS

Amadhea, Girl of the Future.

Vaoidream

Sometimes, it is impolite to tell the truth

Wish I could read them. From Blogwise.

MANHATTAN COMPREHENSIVE

Read this article in today's NYT on a heroic NY public high school (from Anita).

READ THIS BEFORE SUNDAY

How to beat Tim Russert. If you're reading this BLOG rather than kissing babies, you probably won't be on his show anytime soon, but it's still fun to yell unsolicited, informed advice at the TV.

MARCI HAMILTON

Lawrence Solum objects to Marci Hamilton's characterization of the Rehnquist Court as centrist and hence non-political. Solum's analysis is interesting, I think (go read it), but both Hamilton and Solum ignore what is probably the Rehnquist Court's most important legacy at this point, though: an aggressive adherence to judicial supremacy. As Sanford Levinson put it in the Village Voice recently: the "common motif" in Rehnquist Court decisions has been "a highly self-confident group of judges unafraid to exercise their power," sometimes in a liberal direction, more often in a conservative one.

Hamilton (staggeringly) ignores the judicial supremacy dimension of Boerne v. Flores, in which the Court told Congress that congressional understandings of the meaning of Section 5 of the 14th Amendment were of no account, and that judicial understandings prevail here -- even when these understandings change because of a combination of judicial personnel turnover and political shifts, and even when Congress is objecting to this change by referrring to the Court's own precedent. Hamilton blandly lists Boerne among cases that operate "in recognition of the limited nature of federal power." She then implies that Boerne needs to be understood as part of a line of cases in which the Court was defending the powers of states against the federal government. Maybe, but it's not the real drama of the case; the real drama is that Congress tried to tell the Court how to interpret Section 5 and the Court said that Congress didn't have that authority. My lawyer friends tend to say, "of course the Court wouldn't countenance that," but I think that's a shortsighted view that is primarily a result of trends in the legal culture rather than any necessary part of the constitutional design. And especially after reading Larry Kramer again (see this post), I'm struck by how much you actually can explain with respect to the Rehnquist Court if you keep judicial supremacy in focus. On this view, for example, Bush v. Gore was primarily about "preserv[ing] the role of the Court," as Kennedy said at oral argument in Bush v. Palm Beach County Canvassing Board and as Kramer notes on p. 37 of his draft. The Court couldn't countenance the clear statutory and relatively clear constitutional framework that gave Congress the authority to decide between disputed slates of electors. And more recently, with Lawrence, the Court helped to preserve its authority by jumping on a civil rights train after the Court noted that the train was already leaving the station.

As I write this, I realize that it's important not to conflate two things: (1) the predictable attempts at institutional maintenance and (2) attempts by the Court to preserve its institutional role by claiming exclusive constitutional interpretive authority. (2) is a subset of (1), and not every instance of (1) will be an instance of (2).

RUSH LIMBAUGHTOMY

Check it out. Ha.

SKBUBBA'S ON A ROLL

TIP. Indeed.

BERLUSCONI

Berlusconi is an idiot. Read especially Henry Farrell's comments here, echoed in part by Josh Chafetz's comments here and here. As the Sueddeutsche Zeitung reports, German Chancellor Gerhard Schroeder began his speech in the German parliament today by claiming that Berlusconi's remarks were "unacceptable" and that he expected an apology. The highest circulation German tabloid, the right-wing Bild Zeitung, has this article on the subject, which blurs the line between reporting and editorializing by claiming that the remarks "have caused outrage in Europe!" (the exclamation point is theirs). Papascott has a few comments and links.

The NYT headline is "Italian's Sharp Tongue Punctures Image of United Europe," and you know that there are more than a few chuckles going around the Bush administration at this story. Presumably these kinds of references to a common European past were not what Habermas and Derrida had in mind when they argued that the common experience with the destruction of WWII and the Holocaust must help form a unified European identity.

MORE ICC REACTIONS

Uruguayan leaders remain defiant after U.S. military aid was shut off because of that country's support for the ICC. See also here.

Here's a glimpse at an article in the Barbados Daily Nation :

UNITED STATES-provided training in disaster preparedness and drug interdiction are two of the programmes to be cut following an American decision to reduce military aid to six Caribbean states, including Barbados.

In an interview with the Daily Nation yesterday, Kathleen Boyle, public affairs officer of the United States Embassy in Bridgetown, said scholarships provided in the past to military schools like West Point and the Coast Guard Naval Academy would also be discontinued.

Four people representing the Eastern Caribbean are enrolled in such military-related scholarship programmes in the United States.

[. . .]
Referring to a World Wide Press Guidance document, Boyle stressed, however, that several other types of assistance provided in the past to the region would not be affected by President George Bush’s decision to cut military assistance unless countries agreed before July 1 to a waiver exempting American military personnel from prosecution by the International Criminal Court.

Negotiations are ongoing in Columbia, but Uribe is still taking a hard line on this issue. There is a 1962 law that protects American citizens in Columbia, and part of the diplomatic discussion concerns whether or not that law is sufficient for the Bush administration. The Trinidad Express has a roundup of Caribbean reactions from a summit at Ocho Rios, "Caricom Divided on Bush Threat." And El Comercio notes that Ecuadorian officials are also standing firm.

MORE: Josh Cherniss writes:

Now, I have certain reservations about the way the ICC is set up, despitely strongly supporting the project of an independent international court, and I can understand why the US has problems with it -- though I'd prefer to address those problems by trying to reform the ICC as problems arise, rather than just walking away.

I agree. The Administration seems to think that it is a viable long-term option to simply opt out of the ICC. It seems to me that American commitment to human rights will seem quite hollow over the long term if they do attempt to do this. On the other hand, the statute does allow cooperation with the ICC at the discretion of the President, with congressional notification. So we'll see how this one plays out. Even Congress seems to have seen the value of some kind of cooperation here.

INDIAN NATIONAL HUMAN RIGHTS COMMISSION

Articles on the commission, at Times of India:

Human Rights Panel: A Toothless Tiger

It Serves the Purposes for Which It Was Set Up.

ICC FIRES BACK

The ICC Communications Director, Harpinder Athwal, co-authored a piece that appeared in the Asia Times today called "White House Hobbles World Security." The article appeared first in Foreign Policy in Focus.

One paragraph should catch your eye:

Ending aid meant to strengthen our national security is not the only negative outcome of this adamant campaign for bilateral immunity agreements. In the first part of June, the US administration sent a formal demarche to all 15 European Union member states, declaring that their relations with the US were at risk - not over trade barriers, not over lack of cooperation in the "war on terrorism", not over Iraq or the Middle East, but over the ICC. The European Union had sent letters to candidate countries drawing their attention to EU conclusions about the illegality of the US agreements, a move that this demarche referred to as "unfriendly acts", diplomatic speak usually reserved for openly hostile actions.

American conservatives are likely to dismiss such European complaints as either irrelevant or simply petulant. That strikes me as a mistake.

The statutory basis for the scheme by which countries that don't agree to immunity for Americans will stop receiving funds unless the President grants them a waiver is the American Servicemembers' Protection Act of 2002 (title II of Public Law 107-206), which was part of an appropriations bill in 2002, the text of which you can access here. John Shminkus (R-IL, 19) recently introduced legislation to grant automatic waivers to all countries that have concluded negotiations for entering NATO, but as far as I can tell the bill has not passed. He's also part of the Congressional Baltic Caucus, so it's pretty clear where he's coming from on this one.

It's also worth noting that in addition to giving the President authority to issue waivers on the prohibition of military funding to countries that are party to the ICC, the Armed Servicemembers' Protection Act notes several categories of permanent members in the exclusive club of countries whose military assistance will not be cut off:

(1) a NATO member country;

(2) a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand); or

(3) Taiwan.

NOTES

Have a look at Modulator.org and Kikuchiyo News!

MORE: UGH! If Kikuchiyo tells you something is disturbing, it's true. Don't go there. I feel sick. Just trust me.

MORE: In fact, I'm ditching the link. Find the thing yourself. There's some crap that doesn't need to be linked to, and I think that Kikuchiyo exercised some poor editorial judgment on this one. Call me weak, but there you have it.

FMA

Jim at Outside the Beltway agrees that FMA may be too broad, but he's kinder to the Southern Baptists than I am:

And, given the proclivity of courts to go off on weird tangents interpreting laws, I think Brett too quickly dismisses the censoring of fundamentalist churches. It would not be all that big a stretch to have churches denied tax exempt status or other benefits if they discriminated against homosexuals in their desire to marry, for example.

Now I agree that judges can be creative in surprising ways, but I find it really hard to believe that anyone would seriously propose (in the near future) that gays and lesbians have a legally enforceable right to be married in a particular church or a particular denomination. This claim strikes me as being as fanciful as the claim that women have a legally enforceable right to be Catholic priests. Jim might be thinking of the pressure on Bob Jones University and Goldsboro Christian Schools because of the former's ban on interracial dating and the latter's practice of admitting only whites -- both based on their interpretations of the Bible -- pressure that eventually led to the University losing its tax-exempt status (see the Supreme Court ruling in Bob Jones University v. United States, here.) On the surface the cases seem to be similar; both have to do with institutions claiming a religious reason for a discriminatory approach to some issue of public note. But here's the key part of the ruling in Bob Jones, with Chief Justice Burger writing for the nearly unanimous Court (with Rehnquist as the lone dissenter; footnotes omitted, emphasis added):

We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not "charitable" should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy. But there can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice. Prior to 1954, public education in many places still was conducted under the pall of Plessy v. Ferguson, 163 U.S. 537 (1896); racial segregation in primary and secondary education prevailed in many parts of the country [. . .] This Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), signalled an end to that era. Over the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination in public education.

An unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court's view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.

[. . .]

Congress, in Titles IV and VI of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, 42 U.S.C. 2000c, 2000c-6, 2000d, clearly expressed its agreement that racial discrimination in education violates a fundamental public policy. Other sections of that Act, and numerous enactments since then, testify to the public policy against racial discrimination. [. . .]

The Executive Branch has consistently placed its support behind eradication of racial discrimination. Several years before this Court's decision in Brown v. Board of Education, supra, President Truman issued Executive Orders prohibiting racial discrimination in federal employment decisions, Exec. Order No. 9980, 3 CFR 720 (1943-1948 Comp.), and in classifications for the Selective Service, Exec. Order No. 9988, 3 CFR 726, 729 (1943-1948 Comp.). In 1957, President Eisenhower employed military forces to ensure compliance with federal standards in school desegregation programs. Exec. Order No. 10730, 3 CFR 389 (1954-1958 Comp.). And in 1962, President Kennedy announced:

"[T]he granting of Federal assistance for . . . housing and related facilities from which Americans are excluded because of their race, color, creed, or national origin is unfair, unjust, and inconsistent with the public policy of [461 U.S. 574, 595] the United States as manifested in its Constitution and laws." Exec. Order No. 11063, 3 CFR 652 (1959-1963 Comp.).

These are but a few of numerous Executive Orders over the past three decades demonstrating the commitment of the Executive Branch to the fundamental policy of eliminating racial discrimination. [. . .]

Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising "beneficial and stabilizing influences in community life," Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status.

What we had in Bob Jones was the Court taking note of an overwhelming consensus in the national government that eliminating racial discrimination in education was an important enough public policy goal to justify a burden on -- or a removal of a benefit from -- these two institutions. So if at some point it comes to pass that there is a similar consensus around the overwhelming need to eliminate discrimination between straight folks and gays and lesbians for the purpose of marriage, then perhaps the same kind of reasoning will have force. As it is, Congress has gone the other way with DOMA (no pun intended), and the President has blithely sidestepped the issue.

I go back to my claim that the Southern Baptists are trying to scare their followers. There is definitely a seige mentality deeply engrained in fundamentalism -- those "others" are out to get us and our children, and God is on our side, or, we have to show God that we're on His side, so we'll have to fight back the hordes. And many fundamentalists have already put the Federal courts into the category of the "hordes" (which is one reason why I think that Jay Sekulow's radio propogandizing is likely to be powerful among many groups as a mobilizing tool). But that doesn't mean that the courts really work like that. Again, the rise of feminism hasn't caused denominations to lose their tax-exempt status for not ordaining women, and it certainly hasn't led anyone to be "censored" (as far as I know) for arguing that women shouldn't be priests or ministers in a certain denomination.

I can't resist linking to a story from the St. Petersburg Times about Mel White and Gary Nixon's decision to move across the street from Jerry Falwell's Liberty Baptist Church and to attend church there. It doesn't really fit with this story, except to point to the fact that what is probably happening is that fundamentalist groups are feeling threatened because other people are refusing to hide their sexuality, and that the hysterical claims by the Southern Baptists probably need to be read in the context of that psychological dynamic.

OBIT

Robert McCloskey, author of Make Way for Ducklings, has died (via Sisyphus Shrugged.) That book was a staple in our family.

IT'S NOT JUST THE NAME

BRETTnews is actually pretty good. Weird, but pretty good.

IN CASE YOU NEEDED PROOF

. . .go here.

NOTES

Check out the newly redesigned and now quite spiffy Sitting on a Fence, written by fellow Mark Knopfler fan Josh Cherniss.

You may have noticed (or not) that I've begun shifting around my blogroll. Since I tend to read blogs through Blogmatrix anyway, there's substantial overlap between what I've got here and what I've got on my list there. Still haven't figured out how to organize it and don't want to spend too much time on this, though.

MORE: I've been dropping blogs that I don't read. If you're upset about that, give me a reason to read your blog!

MORE: Comment above is too flip. These things are a matter of taste primarily.

MORE: For some new reading, check out Swamp Cottage (on Africa), riting on the wall (political commentary slightly rightward), the Daily Dystopian (enough said), The Scoop.org ("tracking investigative and computer assisted reporting"), and Panchayat ("South Asian Politics, Culture and Society").

MORE: And also check out the interesting blog, Hawaii Nurses on Strike. It appears to be for real. GOOD LUCK, FOLKS!!!

HAPPY B-DAY, SIS!!

Today is my sister's birthday.

Here she is:

She's moving down south this summer to go to SCAD. Boston's loss is SCAD'S gain.

ICC AND THE U.S. AS GLOBAL BULLY

The Bush administration suspended military aid to 35 countries that refused to give American military troops waivers from prosecutions by the International Criminal Court. Read the NYT article here, an article in the Globe and Mail here, and an article in Le Monde here.

I think that the administration's moves here look bad. First of all, the Bush administration's general position on the ICC makes the rest of the world suspect that we want to play by our own set of rules. The fear of "frivolous prosecutions" is a term designed more to appeal to the American public (since it resonates with tropes in American political and legal culture) than to refer to any particular problem with the Rome statute itself, since we basically got all the concessions that we wanted during the negotiating rounds. Second of all, the Bush administration has shown its willingness to compromise on this issue anyway by issuing dozens of waivers to countries where continuing military partnerships are in the national interest. So at the end of the day, we end up looking like we're trying to bully Fiji, Samoa, Trinidad and Tobago, Malawi, Ecuador, and the Baltic states -- since we can't actually bully the EU. And everyone knows what you do with bullies: you stand up to them.

For some international coverage of the issue, see this article in El Tiempo and this article in El Pais on Columbia; this article in the Independent online and this article in the Mail and Guardian on South Africa; this article in the Trinidad Express and this article in Newsday; this article in the Barbados Daily Nation; this article in Nacion (Costa Rica); this article (and related coverage) in El comercio and this article in La Hora (Ecuador); this article in Correo (Peru); this article in La Republica en la Red and this article in El Pais (Uruguay); this article in El Universal (Venezuela); this article in the Bulgarian News Network; and this article in the Malta Independent.

SANFORD LEVINSON'S THUMBNAIL HISTORY OF JUDICIAL REVIEW

In this week's Village Voice, University of Texas professor Sanford Levinson has an essay called "Redefining the Center: Liberal Decisions from A Conservative Court." Here's a paragraph where he discusses the task of the essay:

The Warren Court created in liberals a belief in the reality and importance of a strong, vigorous—indeed, "activist"—judiciary protecting vulnerable minorities against majority tyranny. An earlier generation of liberals, though, had agreed with then Harvard law professor Felix Frankfurter that such a strong judiciary was the problem rather than the solution. To understand Frankfurter's concerns, it helps to go all the way back to the Constitution's adoption and to ask which groups have been the beneficiaries of judicial activity.

(Link from the Law and Courts Listserv)

KRAMER ON POPULAR CONSTITUTIONALISM

A propos my discussions of the unfair treatment of Gephardt last week, go here to read two draft chapters by Larry Kramer on popular constitutionalism if you haven't read them already. Scroll down for the link. It's a big PDF file so you'll need to use a fast connection. At least since his 2001 Harvard Law Review forward on popular constitutionalism, Kramer has been one of the foremost critics of judicial supremacy. On page 11 of the article linked above, Kramer mention several actions by Lincoln with respect to slavery that could fairly be called "overcoming a bad thing that the Supreme Court did," namely, entrenching slavery through Dred Scott. It seems to me absolutely clear that we do in fact want Presidents who will take such actions. The fact that this runs contrary to both official Rehnquist Court doctrine (that the Court is the only legitimate constitutional interpreter for almost all circumstances) and to popular conceptions of the Court (they decide constitutionality, everyone else does politics) is interesting as a sociological fact but not significant for evaluating presidential constitutional interpretation, in my view.

CANNONS, GNATS, AND THE FEDERAL MARRIAGE AMENDMENT

On Sunday, Senate Republican leader Bill Frist said that he supports the proposed Federal Marriage Amendment. The text of Frist's somewhat rambling remarks can be found here. According to a report on US Newswire, Focus on the Family has applauded Frist (no surprise there).

And over at The Corner, Stanley Kurtz gets into the act by claiming that FMA is "the only way to stop [the nationalization of marriage]". For a while I've been slightly puzzled by the "full faith and credit" issue with respect to FMA. If the point of FMA is really just to limit the ability of citizens of one state to require other states to accept their marriages as valid under the second state's law, then it seems to me that the wording is too broad. Here's the text of the proposed amendment (from thomas.loc.gov):

108th CONGRESS

1st Session

H. J. RES. 56

Proposing an amendment to the Constitution of the United States relating to marriage.

IN THE HOUSE OF REPRESENTATIVES

May 21, 2003

Mrs. MUSGRAVE (for herself, Mr. HALL, Mr. MCINTYRE, Mr. PETERSON of Minnesota, Mrs. JO ANN DAVIS of Virginia, and Mr. VITTER) introduced the following joint resolution; which was referred to the Committee on the Judiciary

----------------------------------

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relating to marriage.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

`Article --

`SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

Unless I'm missing something big, it looks like the proposed FMA would actually prohibit states from enacting laws that would allow same-sex marriages. Even if a democratically elected state legislature overwhelmingly passed a law that said, clearly, "marriage in this state shall consist of a union between two adults irrespective of gender," presumably the FMA could be used to prevent that law from being "construed" to allow same-sex marriages in that state. This seems to be the position advanced in critical news coverage of the issue. On other hand, some conservative groups seem to think that the Amendment wouldn't go far enough in imposing a nationwide standard prohibiting state-level recognition of same-sex partnerships for various reasons. That's the reason why the Family Research Council opposed the FMA, although it's not particularly clear from their website what their position is. (So Read this article in Christianity Today on the issue.)

If it's just a matter of the "Full Faith and Credit" issue, then why not just draft a different Amendment that targets that issue?

It's pretty clear that FMA is about more than countering courts. To see why, read what the Southern Baptists are saying about this issue (see here). They're trying to scare the living daylights out of their followers. Here's their list of what will happen if FMA doesn't become part of the Constitution:

• Lawsuits demanding a "right to marry" would likely continue to proliferate, and if passed in one state, other states would be pressured to recognize it under the Constitution's "full faith and credit clause," which requires each state to honor another's public contracts.

• A "right" to gay "marriage" would cheapen marriage, opening the way for legalization of abhorrent laws regarding marriage and family.

• Gay "marriages" could paralyze Christian activism on the issue.

• Christian pastors may be restricted from performing heterosexual marriages if they refuse to perform homosexual marriages.

• Our religious freedoms could be ended. Faith-based charities, Christian schools, and churches could be censored.

• Sexual deviancy would be officially endorsed nationwide.

Now clearly some of these arguments are a little strange when you're talking about reasons for an amendment to the Constitution. "Christian activism?" And some of them seem to me to be simply inaccurate (without even getting into the "deviancy" question, or the question of what an "abhorrent" law is in this area). How could churches be "censored" for not approving of gay marriages? I don't get it.

At any rate, it seems that if the point of FMA is to prevent liberal judges from forcing the citizens of the good state of Texas to recognize gay marriages performed in MA, then it's using a cannon to kill a gnat. Some folks (Southern Baptists) think that's ok, since they're aiming at a lot of things that the cannon shot would kill also. Some folks (like the Family Research Council) want an even bigger cannon. Maybe like Big Bertha:

Picture from Trenches on the Web: Big Guns of the Great War.

BLOG NOTES

Check out Prince Roy's Realm and the erudite Reading & Writing at its new home.

GERMAN BLOGS

Check these out when you get a chance. In English there's papascott, who has witty and incisive reflections on life in general. In German there are a few others that I like: two German law blogs, vertretbar.de and blawg.advocatus.de. For both of these, make sure you're got your "German Legalese to German" dictionary handy. I also read Der Schockwellenreiter on occasion, but much of the stuff is a little too technical for me. The Daily Durchblick has one of the coolest designs I've seen (and the content is pretty interesting as well). And Dienstraum has pretty interesting links on the media. So refresh your knowledge of German verb declensions and head on over to these sites!

GERMANY'S NEW LAWS

July 1st is an important day in Germany because several legal changes take effect on that day every year. This year, as the Sueddeutsche Zeitung notes, some of the changes are: pensions and some welfare payments will rise slightly -- just about keeping with inflation, people who have lost their jobs will face penalties if they don't show up to the unemployment office within seven days, and people who are married or who have a "registered relationship" will not be called for military duty. Regarding the last point: here has been an intermittent discussion in germany about whether or not the universal male military service should be abolished and replaced with a volunteer army. I would imagine that this change could be seen as a weakening of the principle of universal service.

JAY SEKULOW

Since liberal interest groups (as far as I know) haven't attempted to take their court battles to the airwaves, they should at least listen to what the opposition is doing. Listen now to the ACLJ's radio show. It's on every day, live, at noon. Just now, I heard Jay Sekulow say that "we need the right kind of judges" to make sure that courts rule against pornographers and for kids. He repeats the claim in a variety of different contexts. "The right kind of judges."

Their (endlessly repeated) voice-over line on the Dem filibuster: "It's a matter of principle, established by the Constitution: judicial nominees deserve an up-or-down vote." They argue that the courts can't function well with vacancies, but it's also clear from the rest of the program -- as well as their self-description as a "public interest law firm" that is concerned with preserving "Christian values" -- that the point of their pressure is to allow Bush to appoint judges who will rule in the right way. They even use a recent speech by Bush in their ads.

Jay Sekulow claims that Dems have made the judicial nominations process a "political matter, not a constitutional one." At the same time, they're getting a petition drive together to pressure Dems to stop their filibuster. Hmm.

They're also clear that they're gearing up for a Supreme Court nominations battle.

On Friday I called them after hearing Jay Sekulow claim -- perhaps in a throw-away line -- that the Dems were interfering with the President's right to "appoint" judges. He was kind enough to record my comment, in which I said that Article II, Section 2 doesn't give the President the right to "appoint" judges, but to nominate them and then to appoint them with "advice and consent" of the Senate, and that this distinction was important "especially if you think that the text provides substantive guidance here."

He said he'd call me if he used my comment in a later show.

I'm not holding my breath.

Again, on the whole, it seems pretty cool that there is a radio show devoted to appellate litigation. But liberals need to get on the ball here and do the same thing.

You should call the show with your questions: 1-800-684-3310 is the number they gave out on Friday. And here's some more contact info.

GERMANY'S TAX CUT

Gerhard Schroeder's tax cut plan is meeting resistance. . .from the conservative opposition. Yes, that's right.

You ask: what's the argument of the opposition? They're supposed to like tax cuts, after all. Indeed. The CDU's 1994 party program (available in English, here), supports "reducing the role of the public sector and lowering taxes and other levies." So why the opposition?

The main answer: DEFICITS.

As NYT reports, here:

"Of course we want tax relief, but not on credit and not with new tax hikes," said Edmund Stoiber, a conservative leader from Bavaria who was narrowly defeated in elections last fall by Mr. Schröder.

The CDU also wants to see program cuts, although it should also be said that the extent of retrenchment that they are willing to advocate is probably less than the extent of retrenchment that Bill Clinton advanced.

Let's say it again. DEFICITS. Get used to the word, since we're going to hear a lot more about it on this side of the Atlantic in the coming years.

MOUSSAOUI

Does anyone really think that the federal courts are going to order the government to free Moussaoui once the government refuses to allow him to question Binalshibh? WaPo holds this out as one possibility after the 4th Circuit rejected the gov'ts request for them to overturn the trial judge's order that Moussaoui be able to depose Binalshibh. But the 4th Circuit also told the gov't that it would be very quick about hearing any appeal should the gov't simply refuse to produce him.

After seeing how the 4th Circuit has dealt with the Hamdi appeals, I find it hard to believe that it will be less deferential to the government in the Moussaoui case. Obviously there are important differences between the cases -- one might say that since Moussaoui is being tried in the civilian courts, he is entitled to all of the protections available there, whereas Hamdi is simply being held in a brig without charges because the government claims he is an "enemy combattant." [internal editorial dialogue: A: "Learn how to spell, buddy. You're supposed to be a professor after all." B: "Stick a sock in it. That's like saying mathematicians have to be good at their multiplication tables." A: "Well, don't they?" B: "No." A: "Still looks bad." B: "Well, that's true. Thought about instituting a policy of editorial correction, but that's too much of a pain." A: "Whatever. Just be more careful next time." B: "OK. [mutters] Fascist jerk." A: "I heard you!! Hippie stylistic scofflaw!"]

I cannot imagine this administration allowing Moussaoui access to captured members of al-Qaeda, and I cannot imagine an appeals court -- or the last appeals court, at least -- actually telling the feds that they must do so once they refuse. Could be wrong, of course, but I doubt it.

REACTIONS TO BELGIUM WAR CRIMES LAW CHANGE

The folks at the Lebanese Daily Star aren't too happy about the decision by Belgium to change its war crimes law.

REFORM-FEST IN JAPAN

Read the article in the Daily Yomuiri, on the broadening debate on Japanese constitutional reform, here. And an editorial in the Japan Times (from Monday) discusses recent attempts to abolish the death penalty there.

LAURENT VILI

A sad tale of interracial violence and disputed criminal charges from New Caledonia. New Zealand Herald article here. See also the Laurent Vili support site (in French).

GARDENING YOU TO DEATH

From the New Zealand Herald comes this story: "English passion for gardening can have tragic consequences."