Monday, June 29, 2015
The Magna Carta's Legacy
Daniel Hannan's May 29, 2015 article for the Wall Street Journal titled Magna Carta: Eight Centuries of Liberty explains why that document has had such a lasting impact on Western society:
The bishops and barons who had brought King John to the negotiating table understood that rights required an enforcement mechanism. The potency of a charter is not in its parchment but in the authority of its interpretation. The constitution of the U.S.S.R., to pluck an example more or less at random, promised all sorts of entitlements: free speech, free worship, free association. But as Soviet citizens learned, paper rights are worthless in the absence of mechanisms to hold rulers to account.
...The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.
When we call them universal rights, we are being polite. Suppose World War II or the Cold War had ended differently: There would have been nothing universal about them then. If they are universal rights today, it is because of a series of military victories by the English-speaking peoples.
In America, these rights are protected by our system of government, anchored by the Constitution and supported by the checks and balances that are supposed to prevent any one branch of government from becoming too powerful. Hannan notes that there are "universal rights" within our country only because the Founding Fathers, following the example set by the Magna Carta, developed a "constitutional government—or, as the terse inscription on the American Bar Association’s stone puts it, 'freedom under law.'"
The law was no longer just an expression of the will of the biggest guy in the tribe. Above the king brooded something more powerful yet—something you couldn't see or hear or touch or taste but that bound the sovereign as surely as it bound the poorest wretch in the kingdom. That something was what Magna Carta called "the law of the land."
The idea of the law coming up from the people, rather than down from the government, is a peculiar feature of the Anglosphere. Common law is an anomaly, a beautiful, miraculous anomaly. In the rest of the world, laws are written down from first principles and then applied to specific disputes, but the common law grows like a coral, case by case, each judgment serving as the starting point for the next dispute. In consequence, it is an ally of freedom rather than an instrument of state control. It implicitly assumes residual rights.
Hannan declares that it is not a coincidence that while most of the world has fallen prey to dictatorships of one kind or another at one time, the "Anglosphere, unusually, retained a consensus behind liberal capitalism. This is not because of any special property in our geography or our genes but because of our constitutional arrangements. Those constitutional arrangements can take root anywhere. They explain why Bermuda is not Haiti, why Hong Kong is not China, why Israel is not Syria."
Democracy does not flower everywhere. It is delicate and it must have the right environment in order to blossom. Hannan concludes:
Americans, like Britons, have inherited their freedoms from past generations and should not look to any external agent for their perpetuation. The defense of liberty is your job and mine. It is up to us to keep intact the freedoms we inherited from our parents and to pass them on securely to our children.
An Activist Supreme Court Undermines the Integrity of the Constitution
Matthew Cooper's June 27, 2015 Newsweek article cogently cautions that an activist Supreme Court threatens to undermine the integrity of the Constitution: "The Supreme Court’s sweeping ruling on gay marriage marks a stunning expansion of gay rights and also provides more proof that the high court is one of the most revolutionary (and hypocritical?) in living memory, and continues to infuriate and hearten both left and right."
Liberals celebrate the gay marriage ruling but Cooper notes, "Liberals decried the activism of the Roberts rulings on voting rights and campaign finance—rulings in which their beloved Justice Kennedy was in the conservative majority—just as conservatives are denouncing the gay marriage ruling today. Left and right argue that the rulings they favor were logical extensions of previous holdings rather than the creation of new law out of thin air."
The point is that partisans from both sides of the political spectrum praise rulings that go in their favor and criticize rulings that do not go in their favor but neither set of partisans seems to fully grasp the potential dangers of an activist court. Chief Justice Roberts articulates this point very well in the opening lines of his Obergefell v. Hodges dissent:
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial "caution" and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice." Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution "is made for people of fundamentally differing views." Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Accordingly, "courts are not concerned with the wisdom or policy of legislation." Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own "understanding of what freedom is and must become." Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
Roberts then notes that the ruling hearkens back to the bad old days of the Lochner era, when the Supreme Court "struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that '[t]he criterion of constitutionality is not whether we believe the law to be for the public good.' Adkins v. Children's Hospital of D. C., 261 U.S. 525, 570, 43 S.Ct. 394, 67 L.Ed. 785 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected 'liberty,' the Lochner line of cases left 'no alternative to regarding the court as a ... legislative chamber.' L. Hand, The Bill of Rights 42 (1958)."
Roberts adds, "Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them 'unwise, improvident, or out of harmony with a particular school of thought.' Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955)."
Needless to say, liberals did not like the activist Lochner era Supreme Court very much. President Franklin Roosevelt pushed through New Deal legislation in part to undo the consequences of some of the Lochner era rulings--and he threatened to "pack" the Supreme Court to make sure that the judiciary would not interfere with his plans.
Roberts believes that the Obergefell ruling will have long-standing and unintended (or, at least, unwelcome) consequences because of the harsh way that it depicts those who do not support gay marriage:
Perhaps the most discouraging aspect of today's decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" of laws codifying the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. Ante, at 19.
The majority reiterates such characterizations over and over. By the majority's account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States' enduring definition of marriage—have acted to "lock ... out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's "better informed understanding" as bigoted. Ante, at 19.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Roberts is right about all of this but the Obergefell case is not the first time during his term as Chief Justice that the Supreme Court has taken an activist role. Cooper writes, "The activism of the Roberts court stands in stunning contrast to the Chief Justice's claim during his 2005 confirmation that he wanted a humble court and saw himself as only 'an umpire' calling 'balls and strikes.'" Copper concludes, "...the activism of the justices in Roberts’s court—whether it yields liberal rulings like gay marriage or conservative ones—seems here to stay."
Justice Antonin Scalia, joined by Justice Clarence Thomas, agrees with Chief Justice Roberts' Obergefell dissent but penned a separate, additional dissent "to call attention to this Court's threat to American democracy."
Justice Scalia characterizes the majority opinion as "a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.' A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
Justice Scalia exposes the underlying flaw of the reasoning behind the majority opinion:
But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a "fundamental right" overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their "reasoned judgment." These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.
Justice Thomas, joined by Justice Scalia, authored his own dissent, beginning with these words:
The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
Perhaps the last word should go to Justice Samuel Alito, whose dissent was joined by Justice Scalia and Justice Thomas: "Most Americans—understandably—will cheer or lament today's decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends."
McKay Smith's Relentless Pursuit of a Nazi War Criminal is Inspirational
The 36 year old Smith works in the Justice Department's National Security Division. His job, as Harris describes it, is to watch the watchers, meaning keep tabs on those who perform surveillance for the government. However, Smith's passion is pursuing Nazis who have eluded justice for their participation in war crimes during World War II. Smith has spent four years and $15,000 of his own money to build an archive filled with more than 10,000 pages of official documents and photographs.
He started the project with a very different goal in mind: finding out about his grandfather, Lt. Raymond Murphy, who fought during World War II and passed away in 1970. After Murphy's B-17 bomber was shot down over France in 1944, he spent four months behind enemy lines. Murphy typed up a report detailing his experiences and at the end of the report he added this handwritten note: "I saw a town where some 500 men, women and children had been murdered by the Germans. I saw one baby who had been crucified."
Smith could not get that last image out of his mind. His research showed that Murphy had witnessed the grisly aftermath of a Nazi massacre in the French village of Oradour-sur-Glane. Smith's research also revealed something else: one Nazi soldier who had been in that village--and who had never been tried for a war crime--was still living.
Werner Christukat is a 90 resident of Cologne, Germany. During World War II, he was a machine gunner with the Waffen SS. Christukat's unit was en route to fight the Allied forces that had landed at Normandy when it stopped in Oradour. Harris describes what the SS did in Oradour:
There, in a scene of depravity that was horrific even for the age of the Holocaust, Christukat's unit murdered 642 men, women, and children. It was the single largest mass killing of French civilians during the German occupation. Only six people survived. The men razed the village, leaving nothing but a ruined shell, which still stands today in the exact condition the Nazis left it. The French call Oradour a "ghost village."
In 1983, one SS officer was convicted for his role in the massacre, serving 14 years in prison before enjoying the last decade of his life in freedom. Right after World War II, 20 soldiers were convicted of participating in the massacre but none served any jail time. The rest of the murderers never faced justice at all, an outrage that has inspired Smith to work tirelessly to build a case against Christukat.
German prosecutors questioned Christukat in 1978 but decided that they did not have enough evidence to pursue a case against him. In January 2013, documents discovered in the archives of the Stasi (the East German secret police) contained enough evidence to charge Christukat with murder and accessory to murder. However, in December 2014 the district court in Cologne ruled that there was not enough evidence to proceed with a trial. The state attorney appealed that decision to the regional court.
Meanwhile, Smith continued to do his research, telling Harris, "I think it's clear that any soldier in that village on June 10 has blood on his hands."
The war crimes that Christukat's unit committed in Oradour are not isolated, Harris notes:
...Christukat’s regiment also conducted a brutal assault on the village of Tulle just one day earlier, and the historical record that Smith unearthed is filled with accounts of other Nazi units inflicting the same atrocities in other French villages as Christukat's regiment did at Oradour. In some of those towns, civilians were found strapped to wood planks, their arms spread out, as if they'd been crucified. This suggests that if the baby Murphy saw was at Oradour, the crucifixion was part of a systematic campaign of terror directed at French civilians, and not a unique event, Smith said.
The sickening details of the Oradour massacre are based on eyewitness testimony and from the accounts provided by the soldiers who were put on trial after World War II:
With the town surrounded by what one Oradour historian called an "execution perimeter," the unit's commander headed for the town center. He "pretended the citizens had a weapons cache in the village despite the denial of the mayor," according to one report that Smith found from the Office of Strategic Services (OSS), the forerunner of the U.S. Central Intelligence Agency, and that relied on original witness accounts. Other soldiers moved through the village with deliberate precision: up the main street, then back down to the center. Men, women, and children were rounded up and told to report to the fairgrounds, presumably to check their identity documents.
Smith contends that even men like Christukat, who were stationed on the perimeter, could have had no doubt about what the Germans had in store for Oradour. It's a point of view that many historians back. "A roundup began, directed systematically toward the fairgrounds, starting with the ring of sentinels and going from the village's edge toward the center," according to Oradour historian Jean-Jacques Fouché, who was the founding director of the "memory center" at the village and whose historians consider among the definitive accounts.
Once the bulk of the townspeople were gathered at the fairground, Christukat's unit separated the men and lined them up, in groups of 20, inside nearby barns and sheds. There, German machine gunners opened fire, aiming for their legs. The men fell like cut wheat. Those who didn't die from the gunshot wounds or bleed to death were killed when the soldiers set fire to the buildings. One gunner was spotted chewing on a lump of sugar, which he'd apparently stolen from a town store, as he waited for a batch of men to be brought before him.
"After the massacre came the women and children's turn for whom the Germans had prepared a more refined torture," according to an article in the French underground newspaper, Les Cahiers Francais, published by a band of resistance fighters. Approximately 250 women and 200 children were packed into the church, which normally sat at most 300 parishioners. "They took them to the church where some of the little boys and girls were to take their First Communion the next day. There, the SS amused themselves by abusing their victims and profaning the altar; then, after laying down a large crate in the middle of the nave, they left." The crate contained a bomb.
The soldiers locked the doors to the church, triggered the device, and then threw grenades at the building, along with more explosives. The church was engulfed in flames.
The lone survivor recalled a number of sounds after the explosion. First, the screaming, as women clamored up the walls of the church and tried to force their way out the window. Then gunfire, as the soldiers shot at anyone who tried to free herself from the burning building. More than 60 of the children were less than six years old and must have been too small to climb. They huddled together near the altar or retreated into their mothers’ arms. Some of the children were in baby carriages.
In one of the barns, two men who'd managed to hide under their friends' bodies after they were mowed down by a machine gun heard something new and wholly unexpected: Music. The guards had turned on a radio as they sauntered through Oradour, dousing homes and buildings with fuel before setting them alight. The two men escaped after soldiers set fire to the barn. They are still alive.
The soldiers flushed villagers from hiding places behind clumps of ivy and then shot them as they ran for their lives. One soldier was heard singing. Another played an accordion. Christukat's unit apparently enjoyed working with accompaniment: At Tulle, the soldiers allegedly had played a waltz over their tank radios as they hung 99 civilians from lampposts.
Smith argues that the duration and scope of the massacre implicates every member of that SS unit as a murderer and/or an accessory to murder because every member of that unit could have at least fled the scene and declined to participate. The nature of the men who served in that unit is also revealed by another tidbit that Smith's research uncovered. Christukat's unit captured Herbert Campbell, an airman from Murphy's B-17 crew. Harris succinctly describes Campbell's fate at the hands of Christukat's SS unit: "The Germans beat Campbell with rifle butts, shoved a bayonet through his cheeks, and gouged out his eyes before stomping his head into small pieces."
Christukat admits being present in Oradour. Based on the eyewitness testimony, it stretches credulity to the breaking point to argue that he did not know about the massacre. Based on the SS' conduct in Oradour and throughout Nazi Germany's reign of terror, it is difficult to believe that Christukat did not participate in the slaughter. Christukat has provided varying and inconsistent accounts of his actions during the massacre, even suggesting that instead of participating in the massacre he actually saved some people's lives. However, the documented evidence about the few survivors of the massacre does not correspond with any of Christukat's various tales. Christukat has admitted that he was not merely stationed on the perimeter of the town but that he ventured into Oradour during the massacre.
Harris writes that Christukat's stories do not hold up under scrutiny:
In 2013, investigators went to Christukat's home with photos, sketches, and a PowerPoint presentation that reconstructed where the now ruined buildings had stood. Point by point they went through Christukat's story and poked holes in it—he couldn't have been on one street when he claimed he was; he couldn't have seen explosives inside the church from the door, because you can't see the altar from the door; he had to have gone inside.
Smith declares, "Christukat's claims are absurd. [He] says he saved a child, yet almost all children were in school that day and only one managed to escape—Roger Godfrin. Moreover, while Roger was escaping he was shot at multiple times and even left for dead by a sentry outside the village. We need to get past the problem that there are no direct witnesses to Christukat's actions. This SS unit did their best to make sure there were no living witnesses, and it's clear that even the patrols on the outskirts of the village executed those who were trying to escape."
Sadly, Smith's crusade for justice fell short. The German investigators did not use Smith's evidence and in May 2015 the court ruled that the evidence presented by the prosecution failed to show "at least the probability" that Christukat had "concrete involvement in murder or complicity to murder." Technically, the case has been left open and Christukat could still be prosecuted if more evidence is presented to the court--but realistically, he will never spend a day in jail for his role in the Oradour massacre.
Smith does not agree with the German court's ruling but he understands the judicial process: "As a lawyer, I've been taught to respect a final appeal. I also know that investigative findings are only worthwhile if they can effectuate change. So, the court's ruling has been very difficult for me."
The whole case outrages Smith but what disturbs him the most is Christukat's implausible assertion that he helped to save a young boy during the massacre: "I think there is a far better chance that the boy he said he helped is that poor child my grandfather saw nailed to the cross."
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