Assume the Position

Saturday, July 13, 2002
 
Bellesiles is still at it in an article titled Constitutional Meanings (via John Rosenberg's comments pointed to by Eugene Volokh). In attempting to clarify what historians do, Bellesiles says,
When it comes to the United States Constitution, most historians reject the idea that its meaning can be reduced to some easy formula or series of sweeping generalizations. One important aspect of the historians' role in attempting to fix the original meaning of the Constitution is that we are constantly exploring the subject. . . It is that respect for historical complexity that makes the scholars' participation in these debates most valuable in the long run yet most frustrating in the immediate present. . . what most historians see as their primary task, [is] attempting to bring a precise context back to life in all its intricacy."
Fair enough, historians flesh out the discussion by putting the contextual meat on the Constitution's skeletal framework. So, how well does he do
American history is rife with the violations of individual rights, but then in the eighteenth century rights were held collectively, not individually. If you were a white male Protestant property owner, then you enjoyed substantial liberty. In most states, however, there were gradations of rights descending from that pinnacle. To the majority of Americans in the 1790s, the Bill of Rights was an abstract and irrelevant document that only marked how far they stood below full citizenship. It was a mockery of the very idea of rights. Anyone arguing today that we should adhere to that original understanding of rights would, I hope, be dismissed as grotesquely out of touch with reality
Volokh handily addresses the "rights were held collectively, not individually," nonsense. Suffice it to say that it just means that in the 1790s, the "individual rights" expressed in the Bill of Rights did not apply to every "collective" grouping within the borders of the US. Hang on to that thought as Bellesiles turns to the Second Amendment:
The Second Amendment itself became part of the Constitution in a context of many different intellectual and social currents. The continuing efforts of states to control access to and use of guns once the Second Amendment was part of the Constitution seemingly indicates a lack of concern for an individual "right" to own a gun. The absence of notable opposition to such state action, even when it extended to disarming a portion of the population, reveals popular attitudes that failed to see gun ownership as a protected individual right.
. . .
To be as clear as possible about how this translated into general attitudes, there is no evidence that any government official in 1800 would presume to interfere with a white male Protestant property owner who sought to purchase and possess a firearm, unless there was reason to suspect that he was linked to some sort of domestic disorder or if the militia needed the gun to resist a threatened foreign invasion (there were several invasion scares in different parts of the country between 1798 and 1815). Should any other criteria apply, the reserved sovereignty of the state would empower even local officials to prevent the purchase of or to confiscate a firearm if they deemed such action necessary for the preservation of public safety
[emphasis mine]
But, if we consider the current situation, Bellesiles has left a rump roast and slab of juicy shoulder off of the skeleton -- the Fourteenth Amendment and the incorporation doctrine. Bellesiles is right that the Bill of Rights was "abstract and irrelevant" to most individuals, but that is because it did not apply to state infringements of individual rights -- it only applied to federal actions. It took a nearly a century for the Supreme Court to use the due process clause to incorporate (nationalize) most of the Bill of Rights.
In the 1980s, amid heated discussion about constitutional rights, few Americans recall that for most of our history the Bill of Rights did not apply to the exercise of power by state and local governments. Until the 1920s, only state constitutions and state law prevented local governments from encroaching upon basic liberties such as freedom of speech, press, religion and the right against compulsory self-incrimination.

In 1897, however, the Supreme Court for the first time began to extend the protections guaranteed in the Bill of Rights to exercises of power by state and local governments. That first decision and others since have been based on the Fourteenth Amendment of the Constitution, adopted in 1868 in the wake of the Civil War, specifically the clause that prohibits the states from depriving any person of life, liberty or property without "due process of law."
. . .
With the completion of the nationalization process in the Benton decision in 1969, the only rights remaining in the Bill of Rights that had not been made applicable to the states were the Second and Third Amendments, the "grand jury indictment" clause of the Fifth Amendment, the Seventh Amendment's requirements of jury trials in civil cases and the "excessive fines and bail" clause of the Eighth Amendment.
[The Nationalization of the Bill of Rights: An Overview, Richard C. Cortner, 1985. An excellent look at the subject, in my lay opinion.]

The direction of both the civil rights movement and the incorporation doctrine has been to ensure every citizen is guaranteed the rights and protections afforded to that "white male Protestant property owner" in 1800. I'm sure that if some state were to have a bunch of National Guard soldiers take over an apartment during drill week without the owner's permission, there would be a federal lawsuit and the Third Amendment would be nationalized quick enough.
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. [Third Amendment]
Thus, the question isn't whether the Framers originally intended all persons to have the right to keep and bear arms, but whether or not the Framers originally intended all "white male Protestant property owner[s]" to have the right to keep and bear arms? Bellesiles basically indicates that the answer is 'yes,' which explains why there was no "notable opposition to such state action, even when it extended to disarming a portion of the population" that were not "white male Protestant property owner[s]."


Friday, July 12, 2002
 
Bitter irony is an understatement. Amjad Radwan was born in Houston, TX in 1983 to an American mother and Saudi father. One of the children trapped in Saudi Arabia as a result of 'custody disputes,' she is now an adult (18 or 19), but still cannot leave. The State Department, as seems ususal, has been less than useless. After she's spent more than a decade in 'Saudi hell,' State is still playing the "we have to respect Saudi law" game.
This leads to some bitter ironies. Though Miss Radwan is forbidden to leave Saudi Arabia for America without written permission from her father, her Saudi relatives--uncles, aunts and cousins--have all been given visas by the State Department to visit America, which they apparently love to do. But she, the American citizen, can't.

"There is no future for me in Saudi Arabia," she tells me. "I can't go to school, I can't get a good job, and my father wants to marry me [off] to a man in his 40s."

Actual child custody cases may be one thing State can't do anything about (as hard as that is to stomach). But, when an American citizen who would be recognized as an adult in this country walks into a US embassy, and the only host country law or tradition she's violated is not having a note from Daddy, then her reentry stamp should be automatic.


 
So what about the ouster of Joseph Estrada in the Philippines? Glenn Reynolds and Eric Alterman have been going back and forth over the Administration's quiet response to the coup/reinstatement in Venezuela. Maybe if the Left had raised a stink about constitutions and the rule of law when Estrada was deposed in January 2001 their complaints about the extra-constitutional ouster of Hugo Chavez would carry more weight. But, the harshest complaints were on the order of, "This has been one of the unintended and unfortunate legacies of People Power: that a coup, popular or otherwise, is considered a legitimate—glorious even—way to transfer power." (Anthony Spaeth's Oops, We Did It Again in TIME.)

Even Spaeth's and others' mildly expressed concerns that "[t]he option they chose, popular uprising, while rousing and probably justified, could portend a troubling future for democracy," were downplayed by Walden Bello writing in The Nation and a longer version of the same article in Focus on the Philippines:

Much of the western press, such as Time and the Far Eastern Economic Review, have since taken to caricaturing the process of Estrada’s removal as "mob rule" or "rich people’s power." Viewing the process through narrow western constitutional lenses, these accounts fail to see the greater truth about EDSA II: that it was an exercise in direct democracy that kicked into motion once representative institutions began to fail to check systematic and massive abuse of power.
The Filipinos couldn't wait for the outcome of the impeachment trial after a ruling to suppress some damaging evidence went in Estrada's favor, so they turned to the streets for "People Power II" and deposed Estrada. Constitution and the rule of law - 0, Overthrow - 1; and the most the liberals could do was "caricatur[e] the process" instead of condemn it. I couldn't find anything written by Alterman bemoaning the Philippine coup, probably because he and the rest of the Left were too busy trying to characterize the US election as a coup:
The Democrats use the courts and the law. The Republicans rely on rent-a-mobs, partisan hacks and power-hungry allies in the state legislature and Congress. Guess which side is bound to win? (EA, The Nation, Dec 25, 2000)
And after it turned out to be the Republicans who won through the courts:
As the new Florida counts appear to demonstrate even more clearly than before, George W. Bush and the Republicans hijacked the 2000 election with the help of their discredited accomplices on the US Supreme Court. They have no right to traditional forms of democratic deference, particularly when pursuing an unpopular extremist agenda. (EA, The Nation, Feb 26, 2001)
Both Chavez and Estrada were clearly elected, both convincingly ran as champions of the poor, both fail(ed) as President, both were ousted in mob rule/direct democracy protests; Chavez was reinstated after counter-mob rule/direct democracy protests while the EDSA III protests/May Day riot failed to regain the Presidency for Estrada.

That the Left is acting outraged over Bush's response to the events in Venezuela in 2002, after only mildly questioning while tacitly approving the Philippine coup in 2001, has more to do with their disapproval of Bush's Mid East policies than any actual concern for constitutional procedures and the rule of law in other countries. In 2001, Bush wasn't telling the Palestinians that they had better come up with some responsible leadership if they wanted to talk to the US, so both the Left and the Right could quietly watch a (mostly) bloodless coup in the Philippines. But now it's a little over a year later, the Left had to squawk about Chavez to maintain their front of "principled opposition" to any Administration pressure for the ouster of Arafat, and Bush certainly couldn't condemn the popular ousting of an "elected" President in Venezuela while urging the ouster of the "elected" Chairman-for-Life of the PA.



Wednesday, July 10, 2002
 
France opts out of ICC "war crimes" jurisdiction. The ICC has jurisdiction over four areas of crime: the undefined crime of "aggression" (article 5), genocide (article 6), crimes against humanity (article 7), and war crimes (article 8). [Rome Statute of the International Criminal Court (255 kB)]

Article 124 of the statute is a "transitional provision" that states:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.
The ICC treaty's ratification status, including the declarations and reservations of individual countries, is available here. Among the various declarations in France's ratification is the following:
III. Declaration under article 124:

Pursuant to article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory.
Possibly a wise choice by the French, since the accidental discharge of firearms thrown down during surrender might result in the war crime of "killing or wounding treacherously individuals belonging to the hostile nation or army." (Article 8 - 2(b)(xi))



Original content copyright © 2002-2005 Lynxx Pherrett. All rights reserved.